Presentation on theme: "SAFEGUARDING CONFERENCE"— Presentation transcript:
1 SAFEGUARDING CONFERENCE Deprivation of Liberty Safeguardspost Cheshire WestAmy Owen-DavisSolicitor, Leicester City Council
2 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.
3 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 speedilyArticle 8 – Everyone has the right to respect for his private and family life.
4 MCA - Best InterestsAny 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
5 Plugging the Bournewood Gap Interface between MCA and MHAMHA - Admission for assessment and treatmentPatient detained and treated when sectionedReview and appeals system available via Mental Health TribunalsPROBLEM –People who lack capacity do not fall within the Mental Health ActCannot consent to treatment or residential careNo avenue for review of detention under MCA
6 DoLS in light of Cheshire West Judgement handed down by Supreme Court 19th March 20141. 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
7 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?
8 Fallout:Fundamental shift in determining if there is a deprivation of libertyLikely to be thousands of people who were not considered to be subject to a deprivation who will now be deprived of their libertyDeprivations to be authorisedApplications will be tenfold, LA’s and the Court alike will struggle to manage the vast numberThe President of the Family Division, Sir James Munby P – Guidance?
9 A – Is the person objectively deprived of their liberty 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?
10 Authorisation: Three categories: 1. Adult in Care home of Hospital Standard Authorisation under provisions of Schedule A1 to Mental Capacity Act 2005Vince Duffy – DoLS Team Leader2. Adult Placement other than in a care home of hospital (supported living, Shared Lives, own home etc.)Authorisation via application to Court of Protection3. Children (16+ in own home, residential care, with family members or foster care etc.)DoLS regime cannot be used for those under 18 yearsCoP can authorise a deprivation of those from the age of 16Prior to Judgement in March (February 2014) Guidance from President of CoP and Ofsted - 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 themFurther guidance?
11 DOLS Regime - People involved Managing Authority- Responsible for care & requesting DoLSSupervisory Body – Responsible for assessing the need for authorising a DoLSRelevant Person – Person being deprived of libertyFamily – Consulted, involved & provided with informationAssessors – BIA & MHA Responsible for undertaking all 6 assessmentsMay also include:Allocated workerIMCAFriends/carersIndependent representative
12 Assessments RequiredAge 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.
13 COURT OF PROTECTION ADASS Prediction on CoP applications: In 2013/ applicationsPrediction for 2014/ ,500 applicationsIncrease continues for 2015/ ,500 applicationsFigures don’t include annual reviews to be carried out by the court.Neary case – duty to take the leadBut COP applications can be made by anyone!
14 Issues from the bulk applications on 5 and 6th June Brought by Cornwall County Council and others ie CCGs, Official Solicitor, Patients groups, ADASS, Department of Health, Law Society - approx barristers present!Application made for urgent authorisation under DoLS where the assessments could not be made in time
15 DoLS Applications - Court Procedure Considered by Lord Justice Munby:Must be judge, not court officerDetermination made on papers but right to request speedy reviewCertain ‘triggers’ outlined for oral hearingEvidence required determined ‘streamlined’– medical evidence, succinct focussed statementP does not need to be a partyCoPR 2007, Practice Directions and Forms need revisingFurther guidance awaited
16 COP – Witness Statement Who, What, Where, When, Why, etc.Chronology – useful but use your own words are betterEssential to cover:diagnosis/why/how known to adult servicescapacity assessmentproposed actionsbest interestsconsultation with relevant personsthe disputeaction taken to resolve the disputewhat order you want the court to make
17 Amy Owen-Davis, Solicitor Leicester City Council Any Questions??Amy Owen-Davis, SolicitorLeicester City Council