Health and Social Care Mental Health Act 2007 Deprivation of Liberty Safeguards (MCA / DoLS) What is Depriving a Person’s Liberty?

Aims and Objectives  To gain an awareness of the Mental Capacity Act Deprivation of Liberty Safeguards  To learn about the legislation, who the safeguards apply to and how this fits is with human rights  You will demonstrate your understanding in an end of session assessment

Introduction  The Mental Capacity Act provides a statutory framework to empower and protect vulnerable people who may not be able to make their own decisions  The Mental Health Act 2007 amended the Mental Health Act 1983 and introduced safeguards into the Mental Capacity Act 2005

Deprivation of Liberty Safeguards (Dols)  The Mental Capacity Act Deprivation of Liberty safeguards introduced into the Mental Capacity Act 2005 became effective from 1 April 2009  These safeguards aim to protect people who cannot make decisions for themselves due to a learning disability or a mental health condition or for any other reason  The safeguards provide guidelines for carers and professionals about who can take decisions in which situations

Safeguards – Who They Apply To  The safeguards apply to anyone aged 18 and over who:  Suffers from a mental disorder or disability of the mind (e.g. dementia or a profound learning disability)  Lacks the capacity to give informed consent to the arrangements made for their care and / or treatment

Safeguards – Who They Apply To  Continued:  For whom deprivation of liberty (within the meaning of Article 5 of the European Commission for Human Rights) is considered to be necessary in their best interests to protect them from harm (after an independent assessment)

The Safeguards  The safeguards cover:  Patients in hospitals  People in care homes registered under the Care Standards Act 2000 (whether placed under public or private arrangements)

Background  The White Paper Our Health, Our Care, Our Say (Department of Health)  “people with ongoing care needs, whether their needs arise in older age, or through illness or disability, should be cared for in ways that promote their independence, well-being and choice”

Background (continued)  European Court of Human Rights judgement (the Bournewood case)  This concerned an autistic man with severe learning disabilities who was informally admitted to Bournewood Hospital under common law  The European Court found that he had been deprived of his liberty unlawfully (because of a lack of legal procedure that offered sufficient safeguards against arbitrary detention and speedy access to a court)

Background Conclusion  The Deprivation of Liberty safeguards was designed to:  Close the ‘Bournewood Gap’  To protect people who lack capacity, have a mental disorder and who may be deprived of their liberty in hospital or care homes  The safeguards provide compliance with the Human Rights Act by providing legal authority for deprivation of liberty and an appeals procedure

Human Rights Act

Human Right Act 1998  The Convention guarantees the following rights and freedoms:  Article 2: The right to life  Article 3: The Right to Freedom from Torture and Inhuman or Degrading Treatment or Punishment  Article 4: The Right to Freedom from Slavery, Servitude and Forced or Compulsory Labour  Article 5: The Right to Liberty and Security of Person.

DoLS – The Assessment Process  The assessments have to ensure that all requirements are met  The regulations stipulate who does these assessments  Six assessments: 1.Age 2.Mental health 3.Mental capacity 4.No refusals 5.Eligibility 6.Best interests

Key Terminology  Relevant Person (RA)  The person being deprived of their liberty  Managing Authority (MA)  Hospital or Care Home – the care provider responsible for requesting an assessment of deprivation of liberty

Human Rights Act 1998  Article 6: The right to a fair and public trial within a reasonable time.  Article 7: The Right to Freedom from Retrospective Criminal Law and no Punishment without Law  Article 8: The right to respect for private and family life, home and correspondence  Article 9: The Right to Freedom of thought, conscience and religion

Human Rights Act 1998  Article 10: The Right to Freedom of Expression  Article 11: The Right to Freedom of assembly and association  Article 12: The Right to marry and found a family  Article 14: The prohibition of discrimination in the enjoyment of convention rights

What are the Safeguards?  A legal procedure to enable lawful detention of a person who is: 1.Over 18, and 2.Lacking capacity to consent to the arrangements for their care, and 3.Receiving care where levels of restriction and restraint are so high that they are being deprived of their liberty, and

What are the Safeguards? 4.They are receiving care/treatment in a hospital or care home, and 5.Where detention is not already authorised under the Mental health Act

Policies and Training  Staff should receive training on the Mental Capacity Act and Dols  Managers should ensure that policies and practice are in line with the Act and Dols

Policies and Training  You need to understand:  Capacity assessment  How to support decision making  How to determine ‘best interests’ decisions  The definition of restraint and least restrictive option

Implications for Institutions  Approximately 21,000 vulnerable adults in care homes and hospitals may be in danger of having their liberty deprived in a range of ways (Department of Health)  Care homes need to review care practice for specific service users in order to provide it in a less restrictive way

MCA Code of Practice (Supplement 2.5)  The ECtHR and UK courts have determined a number of cases about deprivation of liberty  Their judgments indicate that certain factors can be relevant to identifying whether steps taken:  Involve more than restraint, and  Amount to a deprivation of liberty

MCA Code of Practice (Supplement 2.5)  Factors determined (so far): 1.Restraint is used (including sedation) to admit a person to an institution where that person is resisting admission 2.Staff exercise complete and effective control over the care and movement of a person for a significant period 3.Staff exercise control over assessments, treatment, contacts and residence

MCA Code of Practice (Supplement 2.5)  Factors determined (so far): 4.An institutional decision 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 5.A request by carers for a person to be discharged to their care is refused

MCA Code of Practice (Supplement 2.5)  Factors determined (so far): 6.The person is unable to maintain social contacts because of restrictions placed on their access to other people 7.The person loses autonomy because they are under continuous supervision and control

What This Means for Settings  Essential that you understand the distinction between deprivation and restriction of liberty  Every effort should be made to avoid instituting deprivation of liberty care regimes wherever possible  You need to work in partnership with other providers and stakeholders to deliver the safeguards and reduce the numbers referred unnecessarily for assessment

Summary  Everyone in health and social care must look critically at how care is provided to ensure that a person’s liberty is not being deprived  Only by following the correct legal route can you deprive someone of their liberty  Ready for your assessment?

References  alcare/MentalCapacity/MentalCapacityActDeprivationofLi bertySafeguards/index.htm (Accessed 28/8/ p.m.)  cations/PublicationsLegislation/DH_ (Accessed 28/8/ p.m.)