Presentation on theme: "Deprivation of Liberty Safeguards Project"— Presentation transcript:
1 Deprivation of Liberty Safeguards Project Paul GantleyNational Programme Implementation ManagerMental Capacity Act 2005
2 BackgroundIntroduced into Mental Capacity Act 2005 (MCA) through the Mental Health Act 2007Will prevent arbitrary decisions that deprive vulnerable people of their libertySafeguards 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 privatelyPlanned to become statutory obligation in April 2009 – so need to go to Court of Protection in the interim
3 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 definitionSubsequent cases have found examples where deprivation of liberty was and wasn’t judged to have occurred in similar circumstancesA serious matter to be used sparingly and avoided wherever possible
4 What is deprivation of liberty? Supplement to the MCA Code of Practice2.5The 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 aninstitution where that person is resisting admission.Staff exercise complete and effective control over the care andmovement of a person for a significant period.Staff exercise control over assessments, treatment, contacts andresidence.
5 What is deprivation of liberty? Supplement to the MCA Code of Practice2.5 (contd.)A decision has been taken by the institution that the person willnot be released into the care of others, or permitted to liveelsewhere, unless the staff in the institution consider itappropriate.A request by carers for a person to be discharged to their care isrefused.The person is unable to maintain social contacts because ofrestrictions placed on their access to other people.The person loses autonomy because they are under continuoussupervision and control.
6 How can deprivation of liberty be identified? Supplement to the MCA Code of Practice 2.5All the circumstances of each and every caseWhat measures are being taken in relation to the individual?When are they required? For what period do they endure? Whatare the effects of the restrictions on the individual? Why are theynecessary? 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?
7 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 ofliberty?Are there any less restrictive options for delivering care or treatment thatavoid deprivation of liberty altogether?Does the cumulative effect of all the restrictions imposed on the personamount to a deprivation of liberty, even if individually they would not?
8 Responsibilities in Deprivation of Liberty AssessorsCarry out assessmentsManaging AuthorityHospital or Care HomeResponsible for care and requesting an assessment of deprivation of libertyRelevant PersonPerson being deprived of libertyRepresentativeProviding independent supportFamily/Friends/CarersConsulted, involved and provided with all informationSupervisory BodyPCT or LAResponsible for assessing the need for and authorising deprivation of libertyIMCACourt of Protection
9 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 AuthorityHospital/Care HomeDecide if it is necessary to apply for authorisation from Supervisory Body to deprive someone of their liberty in their best interestsSupervisory BodyPCT/LAAssess each individual case and provide or refuse authorisation for DOL as appropriateManaging AuthoritySupervisory BodyReview cases to determine if DOL is still necessary and remove where no longer appropriate
10 Hospital or care home managers identify those at risk of deprivation of liberty & request authorisation from supervisory bodyIn an emergency hospital or care home can issue an urgent authorisation for seven days while obtaining authorisationAssessment commissioned by supervisory body. IMCA instructed for anyone without representationAge assessmentNo Refusals assessmentMental health assessmentEligibility assessmentMental capacity assessmentBest interests assessmentAuthorisation expires and Managing authority requests further authorisationAll assessments support authorisationAny assessment says noBest interests assessor recommends person to be appointed as representativeRequest for authorisation declinedBest interests assessor recommends period for which deprivation of liberty should be authorisedPerson or their representative appeals to Court of Protection which has powers to terminate authorisation or vary conditionsAuthorisation is granted and persons representative appointedAuthorisation implemented by managing authorityManaging authority requests review because circumstances changePerson or their representative requests reviewReview
11 Some key pointsThe deprivation of liberty safeguards are in addition to and do not replace other safeguards in the MCADeprivation of liberty is for the purpose of providing treatment or care under MCA it does not authorise itEssential that hospital and care home managers and assessors understand the distinction between deprivation and restriction of libertyEvery effort should be made to avoid instituting deprivation of liberty care regimes wherever possibleLocal 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
12 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 capacityA 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 successA person is not to be treated as unable to make a decision merely because he makes an unwise decisionAn 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 interestsBefore 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.
13 AuthorisationsThe MA can give an urgent authorisation for DoL where it believes the need is immediateShould 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 rehabMust not exceed 7 days (or 14 in exceptional circumstances)Standard authorisations need to be assessed within 21 daysCannot be applied for more than 28 days in advance
14 AssessmentsAssessments have to ensure that all the requirements are met in relation to deprivation of liberty.Regulations will determine who does assessmentsDoctors have to do MH assessmentsAMHPs, SWs, OTs, Nurses and psychologists proposed best interests assessors
15 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 CommissionWill be established during 2008Will be part of “routine” inspection / monitoring – not unduly burdensomeExpected to be fully operational by 2009/10
16 ImplementationPublished regulatory impact assessment (RIA) assumes 21,000 people in England and Wales will need an assessment in first year 2009/1017,000 in care homes / 4,000 in hospital at an average cost of £500 per assessment.Training courses need to be approved by Secretary of StateNeed to train all those with a formal roleBest interests and mental health assessors (who will also assess mental capacity); IMCAsNeed to “brief” those with an admin / managerial role in care homes, hospitals, PCTs and LAsNeed 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
17 Implementation issues and structures TimescaleAvailability of workforce for a possible early peakLevel of familiarity with MCA prior to DOLsNeed for local health and social care communities to work together to prepare and run the system – need for local impact assessmentsContinuation of MCA Local Implementation Networks (LINs) x 150 for DoLS – regional CSIP leadsAvailability of standard formsTransitional arrangements
18 Issues for care homes? Definition of deprivation of liberty Availability of standard formsThinking about it nowWorking with local authorities and local implementation networks nowNot reducing the numbers BUT removing the need for unnecessary assessments to everybody’s benefitSharing the risk – help lines?