Transcript Deprivation of Liberty Safeguards Implementation Programme

Deprivation of Liberty
Safeguards Project
Paul Gantley
National Programme Implementation Manager
Mental Capacity Act 2005
[email protected]
020 7972 4431
Background
• Introduced into Mental Capacity Act 2005 (MCA) through
the Mental Health Act 2007
• Will prevent arbitrary decisions that deprive vulnerable
people of their liberty
• Safeguards are to protect service users and if they do
need to be deprived of their liberty give them
representatives, rights of appeal and for the “deprivation”
to be reviewed and monitored.
• Safeguards cover people in hospital and care homes
registered under the Care Standards Act 2000 – whether
placed publicly or privately
• Planned to become statutory obligation in April 2009 – so
need to go to Court of Protection in the interim
What is deprivation of liberty?
• Arises from the “Bournewood” case – a ECtHR case
– Article 5.
• HL had been deprived of his liberty unlawfully,
because of a lack of a legal procedure which offered
sufficient safeguards against arbitrary detention (5(1))
and speedy access to court (5 (4))
• Therefore no definition
• Subsequent cases have found examples where
deprivation of liberty was and wasn’t judged to have
occurred in similar circumstances
• A serious matter to be used sparingly and avoided
wherever possible
What is deprivation of liberty?
Supplement to the MCA Code of Practice
2.5
The ECtHR and UK courts have determined a number of cases
about deprivation of liberty. Their judgments indicate that the
following factors can be relevant to identifying whether steps taken
involve more than restraint and amount to a deprivation of liberty. It
is important to remember that this list is not exclusive; other factors
may arise in future in particular cases.
• Restraint is used, including sedation, to admit a person to an
institution where that person is resisting admission.
• Staff exercise complete and effective control over the care and
movement of a person for a significant period.
• Staff exercise control over assessments, treatment, contacts and
residence.
What is deprivation of liberty?
Supplement to the MCA Code of Practice
2.5 (contd.)
• A decision has been taken by the institution that the person will
not be released into the care of others, or permitted to live
elsewhere, unless the staff in the institution consider it
appropriate.
• A request by carers for a person to be discharged to their care is
refused.
• The person is unable to maintain social contacts because of
restrictions placed on their access to other people.
• The person loses autonomy because they are under continuous
supervision and control.
How can deprivation of liberty be
identified?
Supplement to the MCA Code of Practice 2.5
• All the circumstances of each and every case
• What measures are being taken in relation to the individual?
When are they required? For what period do they endure? What
are the effects of the restrictions on the individual? Why are they
necessary? What aim do they seek to meet?
• What are the views of the relevant person, their family or carers?
Do any of them object to the measures?
How can deprivation of liberty be identified?
Supplement to the MCA Code of Practice 2.5 (contd.)
•
How are the restraints or restrictions implemented?
•
Do any of the constraints on the individual’s personal freedom go beyond
“restriction” or “restraint” to the extent that they constitute a deprivation of
liberty?
•
Are there any less restrictive options for delivering care or treatment that
avoid deprivation of liberty altogether?
•
Does the cumulative effect of all the restrictions imposed on the person
amount to a deprivation of liberty, even if individually they would not?
Responsibilities in Deprivation of Liberty
Managing Authority
Hospital or Care Home
Supervisory Body
PCT or LA
Responsible for care and requesting an
assessment of deprivation of liberty
Responsible for assessing the need for
and authorising deprivation of liberty
Relevant Person
Assessors
Person being deprived of liberty
Family/Friends/Carers
Carry out assessments
Representative
Providing independent support
Consulted, involved and provided
with all information
IMCA
Court of Protection
When should it be used and what does it look like?
Used when a resident or patient needs to go in to or remain in the
registered care home or hospital in order to receive the care or treatment
that is necessary to prevent harm to themselves.
Managing Authority
Hospital/Care Home
Supervisory Body
PCT/LA
Managing Authority
Supervisory Body
Decide if it is necessary to
apply for authorisation
from Supervisory Body to
deprive someone of their
liberty in their best
interests
Assess each individual
case and provide or refuse
authorisation for DOL as
appropriate
Review cases to determine
if DOL is still necessary
and remove where no
longer appropriate
Hospital or care home managers identify
those at risk of deprivation of liberty &
request authorisation from supervisory
body
Age
assessment
Mental health
assessment
Authorisation expires
and Managing authority
requests further
authorisation
Assessment commissioned by
supervisory body. IMCA
instructed for anyone without
representation
Mental
capacity
assessment
Best interests
assessment
Eligibility
assessment
All assessments
support
authorisation
Any
assessment
says no
Request for
authorisation
declined
No Refusals
assessment
In an emergency
hospital or care
home can issue
an urgent
authorisation for
seven days while
obtaining
authorisation
Best interests assessor recommends
period for which deprivation of liberty
should be authorised
Authorisation is granted and
persons representative
appointed
Best interests
assessor
recommends
person to be
appointed as
representative
Authorisation implemented by
managing authority
Managing authority
requests review
because circumstances
change
Person or their
representative requests
review
Review
Person or their
representative
appeals to Court
of Protection
which has
powers to
terminate
authorisation or
vary conditions
Some key points
• The deprivation of liberty safeguards are in addition
to and do not replace other safeguards in the MCA
• Deprivation of liberty is for the purpose of providing
treatment or care under MCA it does not authorise it
• Essential that hospital and care home managers and
assessors understand the distinction between
deprivation and restriction of liberty
• Every effort should be made to avoid instituting
deprivation of liberty care regimes wherever possible
• Local authorities, PCTs, Hospitals, Care Homes and
other key stakeholder organisations need to work in
partnership to deliver DoL safeguards and reduce the
numbers referred unnecessarily for assessment
How do DOLS relate to the rest of the MCA?
• Any action taken under the deprivation of liberty safeguards
must be in line with the principles of the Act:
• A person must be assumed to have capacity unless it is
established that he lacks capacity
• A person is not be treated as unable to make a decision unless
all practicable steps to help him to do so have been taken
without success
• A person is not to be treated as unable to make a decision
merely because he makes an unwise decision
• An act done, or decision made, under this Act or on behalf of a
person who lacks capacity must be done, or made, in his best
interests
• Before the act is done, or the decision is made, regard must be
had to whether the purpose for which it is needed can be as
effectively achieved in a way that is less restrictive of the
person’s rights and freedom of action.
Authorisations
• The MA can give an urgent authorisation for DoL
where it believes the need is immediate
• Should normally only be used in response to sudden
unforeseen needs but also may be used in care
planning e.g. to avoid delays in transfer for
rehabilitation where delay would reduce the likely
benefit of rehab
• Must not exceed 7 days (or 14 in exceptional
circumstances)
• Standard authorisations need to be assessed within
21 days
• Cannot be applied for more than 28 days in advance
Assessments
• Assessments have to ensure that all the
requirements are met in relation to deprivation of
liberty.
• Regulations will determine who does assessments
• Doctors have to do MH assessments
• AMHPs, SWs, OTs, Nurses and psychologists
proposed best interests assessors
Monitoring the safeguards
• Will be inspected by the new health and adult
social care regulator;
• Commission for Social Care Inspection +
Healthcare Commission + Mental Health Act
Commission – Care Quality Commission
• Will be established during 2008
• Will be part of “routine” inspection /
monitoring – not unduly burdensome
• Expected to be fully operational by 2009/10
Implementation
• Published regulatory impact assessment (RIA) assumes 21,000
people in England and Wales will need an assessment in first
year 2009/10
• 17,000 in care homes / 4,000 in hospital at an average cost of
£500 per assessment.
• Training courses need to be approved by Secretary of State
• Need to train all those with a formal role
• Best interests and mental health assessors (who will also
assess mental capacity); IMCAs
• Need to “brief” those with an admin / managerial role in care
homes, hospitals, PCTs and LAs
• Need to raise awareness of all others affected more indirectly
i.e. staff who provide day to day care and treatment but who are
not involved in the statutory DOLS process
Implementation issues and
structures
•
•
•
•
Timescale
Availability of workforce for a possible early peak
Level of familiarity with MCA prior to DOLs
Need for local health and social care
communities to work together to prepare and run
the system – need for local impact assessments
• Continuation of MCA Local Implementation
Networks (LINs) x 150 for DoLS – regional CSIP
leads
• Availability of standard forms
• Transitional arrangements
Issues for care homes?
•
•
•
•
Definition of deprivation of liberty
Availability of standard forms
Thinking about it now
Working with local authorities and local
implementation networks now
• Not reducing the numbers BUT removing
the need for unnecessary assessments
to everybody’s benefit
• Sharing the risk – help lines?