Transcript The deprivation of liberty safeguards

The deprivation of liberty
safeguards
Lynne Holtom
Group Manager, Older Peoples Mental Health Services
Kirklees
POLICY AND PRINCIPLES CONTEXT
Our Health, Our Care, Our Say
5 principles of the Mental Capacity Act
2005
Dignity and Care Agenda
LEGAL CONTEXT
The safeguards set out the
processes that providers of
care must follow, if they
believe that it would be in the
person’s best interests to
provide care in a way that
amounts to a deprivation of
that persons liberty
A DOL should be seen as a last option
therefore care providers and
commissioners should commission
care in a way that complies with the
Mental Capacity Act principles, and
avoids detaining a person unless it is
necessary in the person’s own best
interests
WHERE THE SAFEGUARDS APPLY
•
Residential care and ward based care situations
•
Private and Public placements
•
•
Admissions to hospital for physical treatment where the person
Lacks capacity
•
No minimum period stated, but the longer the ‘deprivation’ is
needed the more likely the protections should apply
WHAT IS DEPRIVATION OF LIBERTY?
No simple definition, and is ultimately a legal question
Distinction is made between deprivation and restriction and
is merely one of degree or intensity and not of nature and
substance.
Dependent on the particular circumstances of the case
Previous Determinations by Courts
Restraint including sedation to admit a person to an institution where
that person is resisting
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
Not allowing access to others or to maintain social contacts i.e: family,
friends
Carers request for discharge into their care refused
Loss of autonomy due to continuous supervision and control
Issues to consider
Structured decision making and reviewing
Safeguards against arbitrary deprivation of Liberty
Effective, documented care planning that includes family, friends and
Carers
Support for people to make
decisions where ever they are able,
and clarity about capacity
assessment where necessary
Ensure that less restrictive
options are chosen wherever
possible
Keeping People Informed
Working to keep people in contact with friends and family
Working to promote independence and choice
proportionate to risk
Review of care plans at regular intervals
Deprivation of liberty only when authorised except in an
emergency
Key Roles: Supervisory Bodies
•PCT’S – Where the person is cared for in Hospital
•LA’S – Where the person is cared for in a registered care
Home (under part ii of the Care Standards Act)
‘Responsible’ authorising
body
Either the PCT who has commissioned the care or treatment
Or in any other case, the PCT for the area in which the hospital is
situated
The LA in whose area the person is classed as
‘ordinarily resident’ (consult rules)
In other cases, the LA in which the care home
Is situated
This includes private placement arrangements
However, the presumption is that the assessment should be
carried out ‘where the body is’, and if there is any dispute
about the supervisory body, the assessment must be
carried out by the local supervisory body
The safeguards don’t apply to care arrangements outside
of residential or nursing care (i.e. day care) therefore
deprivations in these circumstances are illegal unless
authorised by an order from the court of protection, or by
another legal framework and would need to be addressed
under the Safeguarding Adults Procedure.
Key Roles: Managing Authorities
Managing Authorities are those who are
providing care to the individual. ie: Care Home
or Hospital
Responsibility to care for people in the least
restrictive way and to allow them autonomy,
choice, dignity and respect.
To request authorisation for any Deprivation of
Liberty that is occurring or is likely to occur.
Key Roles; Assessors
•professionals undertaking assessments are personally
accountable for their decisions
•Supervisory and other bodies should not seek to influence their
decisions
•Supervisory bodies have a duty to ensure there are sufficient
numbers of assessors, and that they are suitably skilled and able
to maintain their skills and knowledge
•All professionals should be indemnified
Assessments
Age - The person must be over 18
No refusals - are there any valid advance decisions or
LPA/Deputies that oppose
any or part of the plan
Eligibility Assessment - Regulations state MUST be carried
out either by a S12 doctor or AMHP
Purpose of assessment is to determine whether the use of
the Mental Health Act would be more appropriate that the
Mental Capacity Act/DOLS
Key Roles:
Mental Health Assessment
Must be carried out by a registered doctor who is either:1. Approved under Section 12 of the MHA 1983
2. A ‘registered’ medical practitioner who has special experience in the
Diagnosis and treatment of mental disorders
And have completed training in DOLS as prescribed by the DOH
Supervisory bodies must consider the
‘suitability of the assessor for the
particular case
The possible advantage of the doctor
knowing the patient
Mental Capacity Assessment
•Can be the Doctor or the Best Interest
Assessor
•Must have relevant skills and knowledge –
considered advantageous if they have previous
or ongoing knowledge of the relevant person
Key Role:
Best Interest Assessment
Must be undertaken by an AMHP, Social Worker, Nurse,
Chartered psychologist, Occupational Therapist with at least
2 years post qualification experience.
Must have successfully completed training approved
by the secretary of state to be a best interests
assessor.
Must have the skills necessary to obtain,
evaluate and analyse complex evidence,
differing views and to weigh them
appropriately in decision-making.
The Best Interest Assessor should have the
skills and experience for working with the
relevant care group
Conflicts of Interest
There must be a minimum of two assessors in the process
No assessors may have a financial interest in the care of the person
they are assessing
Assessors may carry out more than one role, but Doctors cannot
also be Best Interest Assessor
Can be an employee of the supervisory or managing authority but
MUST NOT be involved in the persons care, or decisions about their
care
Where the Managing Authority and
Supervisory Body are the same i.e.: LA
Care Home the Best Interests Assessor may
not be employed by that LA.
OVERVIEW OF THE PROCESS
• Managing Authority becomes aware that the care someone needs
urgently amounts to a deprivation of their liberty
• Can serve themselves an urgent authorisation – 7 days
• Managing Authority becomes aware that the care someone needs
will amount to a deprivation of their liberty
• Need to request a standard authorisation from the supervisory body
(21 days)
• Supervisory body appoints assessors to complete relevant
assessments
Best interests Assessors recommend authorisation or not (12
months max)
• Authorisation Approved or not by supervisory body. consider any
conditions and appoint a relevant persons representative
• The Authorisation will be subject to review (Max 12 months)
Thank You for listening