Presentation on theme: "SAFEGUARDING CONFERENCE Deprivation of Liberty Safeguards post Cheshire West Amy Owen-Davis Solicitor, Leicester City Council."— Presentation transcript:
SAFEGUARDING CONFERENCE Deprivation of Liberty Safeguards post Cheshire West Amy Owen-Davis Solicitor, Leicester City Council
Introductions What is DOLS? The Deprivation of Liberty Safeguards (DoLS) is a process prescribed in law, as being required for safeguarding vulnerable adults who have been identified as lacking the capacity to consent to where they reside, for the purpose of care and/or treatment they receive that may be depriving them of their liberty.
European Convention on Human Rights Article 5 - No-one shall be deprived of his liberty save in accordance with a procedure prescribed by law. Article 5(4) – Everyone who is deprived of his liberty shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily Article 8 – Everyone has the right to respect for his private and family life.
MCA - Best Interests Any acts done for a person lacking mental capacity should be done in their “best interests” Consideration should be given as to whether the desired outcome an be achieved in a less restrictive way
Plugging the Bournewood Gap Interface between MCA and MHA MHA - Admission for assessment and treatment Patient detained and treated when sectioned Review and appeals system available via Mental Health Tribunals PROBLEM – People who lack capacity do not fall within the Mental Health Act Cannot consent to treatment or residential care No avenue for review of detention under MCA
DoLS in light of Cheshire West Judgement handed down by Supreme Court 19 th March 2014 1. Background: -In both P v Cheshire West Council and P and Q v Surrey County Council (MIG and MEG) the Court of Appeal had decided that neither P nor MIG and MEG were deprived of their liberty. The decisions were appealed and heard in the Supreme Court late last year. 2. Factual basis - Outline
Supreme Court: -Lady Hale gave leading Judgement: -“A gilded cage is still a cage” The ‘Acid Test’ Is the person under complete and effective control in respect of their care and movements? And not free to leave without permission?
Fallout: Fundamental shift in determining if there is a deprivation of liberty Likely to be thousands of people who were not considered to be subject to a deprivation who will now be deprived of their liberty Deprivations to be authorised Applications will be tenfold, LA’s and the Court alike will struggle to manage the vast number The President of the Family Division, Sir James Munby P – Guidance?
A – Is the person objectively deprived of their liberty? Apply the Acid Test – Both factors must be present. B – Does the person have capacity to consent to the deprivation? C – Are the care arrangements attributable to the state? D – If the person does not have capacity to consent to a state arranged deprivation of liberty, how can the deprivation be authorised?
Authorisation: -Three categories: 1. Adult in Care home of Hospital -Standard Authorisation under provisions of Schedule A1 to Mental Capacity Act 2005 -Vince Duffy – DoLS Team Leader 2. Adult Placement other than in a care home of hospital (supported living, Shared Lives, own home etc.) -Authorisation via application to Court of Protection 3. Children (16+ in own home, residential care, with family members or foster care etc.) -DoLS regime cannot be used for those under 18 years -CoP can authorise a deprivation of those from the age of 16 -Prior to Judgement in March (February 2014) Guidance from President of CoP and Ofsted - http://www.familylaw.co.uk/system/uploads/attachments/0008/3681/Joint_Guidance_re_D OLS_2014.pdf stated: Orders of the Court of Protection authorising a deprivation of liberty by non-secure children’s homes or residential special schools should not be sought or made and they should not be advanced or relied on to permit such home and schools to act in breach of the Regulations that apply to them http://www.familylaw.co.uk/system/uploads/attachments/0008/3681/Joint_Guidance_re_D OLS_2014.pdf -Further guidance?
DOLS Regime - People involved 11 Managing Authority- Responsible for care & requesting DoLS Assessors – BIA & MHA Responsible for undertaking all 6 assessments Supervisory Body – Responsible for assessing the need for authorising a DoLS Relevant Person – Person being deprived of liberty May also include: -Allocated worker -IMCA -Friends/carers -Independent representative Family – Consulted, involved & provided with information
Assessments Required Age assessment (form 5, or part H of form 10) – To confirm the relevant person is 18 or over, as DoLS only applies to 18+. No refusals assessment (form 8) - To confirm that a DoLS authorisation would not conflict with any other existing authority for decision making for the person. Mental capacity assessment (form 7) – To establish if the person lacks capacity to decide whether they should be accommodated in the relevant hospital/care home for care/treatment. Mental Health Assessment (form 6) - To establish the person has a mental disorder as defined by the MHA1983. Eligibility assessment (form 9) – Check if person is subject to a section under the Mental Health Act 1983. Best interests assessment (form 10) – To establish whether a deprivation of liberty is occurring or likely to occur. 12
COURT OF PROTECTION ADASS Prediction on CoP applications: In 2013/14 - 212 applications Prediction for 2014/15 - 28,500 applications Increase continues for 2015/16 - 31,500 applications Figures don’t include annual reviews to be carried out by the court. Neary case – duty to take the lead But COP applications can be made by anyone!
Issues from the bulk applications on 5 and 6 th June Brought by Cornwall County Council and others ie CCGs, Official Solicitor, Patients groups, ADASS, Department of Health, Law Society - approx 18-20 barristers present! Application made for urgent authorisation under DoLS where the assessments could not be made in time
DoLS Applications - Court Procedure Considered by Lord Justice Munby: -Must be judge, not court officer -Determination made on papers but right to request speedy review -Certain ‘triggers’ outlined for oral hearing -Evidence required determined ‘streamlined’– medical evidence, succinct focussed statement -P does not need to be a party -CoPR 2007, Practice Directions and Forms need revising Further guidance awaited
COP – Witness Statement Who, What, Where, When, Why, etc. Chronology – useful but use your own words are better Essential to cover: diagnosis/why/how known to adult services capacity assessment proposed actions best interests consultation with relevant persons the dispute action taken to resolve the dispute what order you want the court to make
Any Questions?? Amy Owen-Davis, Solicitor Leicester City Council