Mental Capacity Act 2005 and Deprivation of Liberty Safeguards Provider sessions Amy Allen/Robert Barton DOLS manager

Deprivation of Liberty – overview of law There has been a right to liberty for many years and a requirement to authorise situations that deprive someone who lacks capacity to consent to their care regimes However, case of Cheshire West brought deprivation of liberty into the limelight because it has broadened the scope of what is and what isn’t a deprivation.

Cheshire West Acid test for deprivation of liberty applying in all care settings: The person is not free to leave They are under continuous supervision and They are under continuous control All 3 elements of the test must be met for there to be a deprivation of liberty. There are no definitions or any further explanation of what each of these 3 elements mean. What exactly does “continuous supervision and control” mean? Does this imply having P under direct line of sight observation at all times, or could this be intermittent but with staff under an obligation to be ready and willing to intervene/control if needed? When does support with everyday living become control? What wriggle room is there for deciding restriction of movement rather than dol? P can have a fair degree of freedom of movement within and even including (with permission) leaving the institution for short periods unaccompanied, and yet still be regarded as being under continuous supervision and control. If the person responsible for the care has a plan in place which means he always needs to know where the incapable person is and what he is doing at any one time What does not being “free to leave” mean? - “in the sense of removing himself permanently in order to live where and with whom he chooses”.... The question does not turn on whether P is actively seeking to leave or passively remaining, but on whether if he purposefully attempts to leave he will be prevented from so doing. Where does the power lie?

Cheshire West Factors no longer relevant in determining if there is deprivation of liberty: Compliance or lack of objection Relative normality of the placement in comparison with a person of similar condition or disability Purpose must be to provide care or treatment The purpose of the placement and the purpose of the restrictions will feed into the best interests process, but are no longer relevant when deciding if there is a deprivation of liberty in the first place.

Examples of potential deprivation of liberty Using key pads or locking doors Close supervision inside and out Medication –including covert meds Restricting contact with others Having to stay somewhere against wishes of family member Holding a person to give personal care Bedrails, wheelchair straps Removing items that could cause harm One of these points will not necessarily equal a deprivation of liberty. There will normally need to be a combination.

What information is required? In all cases it is important to be clear that you believe P lacks capacity to consent to care arrangements. Give details of the care provided e.g. support and assistance with all personal care, administration of medication, incontinence management, support to prevent risk of falls. Give details of the restrictions e.g. 2 carers for personal care, observed every 30 mins, not free to leave without permission, supervised 1:1 inside and out in the community Details of covert medication, if any Use new Form 1 – joint urgent and standard request

National picture Oxfordshire receiving c1500 requests per year Allocation list is prioritised according to risk Providers need to keep DOLS office informed of any change in circumstances – admission to hospital, death, discharge to another location, increase in restrictions, change in presentation

Changes in circumstances Request submitted and awaiting assessment. If admitted to hospital for up to 2 weeks and resident then returns with no change in circs – no need to request a new DOLS If DOLS in place and admitted to hospital, auth ends, new request must be submitted. We will take a view on reusing papers without the need for additional assessments MA MUST TELL DOLS OFFICE IN WRITING

Some case law developments Covert medication - medication given without consent or covertly must always call for close scrutiny It is a best interests decision and must be recorded appropriately in line with NICE and CQC guidance Written evidence of consultation with family, and agreement of GP, ideally a covert medication care plan Plan must be reviewed regularly by the managing authority and at any change in circumstances e.g. change of dose, change of meds, change in presentation See 2 articles for further detail

Other developments Coroner notification changes – a DOLS authorisation is no longer considered to be ‘state detention’ therefore no requirement for Coroner to hold an inquest. As has always been the case, where the cause of death is unknown or is unnatural (including where there is any concern that the care given may have contributed to the death) there is a requirement to report such a death to the coroner.

Law Commission proposals for MCA and DOLS Report published March 2017 on proposed amendments to MCA and DOLS At this stage they are only proposals and we await a response from Government In summary: Replace DOLS with ‘Liberty Protection Safeguards’ Responsible body (hospital, CCG or Council) will identify potential DOL

Law Commission proposals for MCA and DOLS For self funders, care home maintain responsibility for notifying Council For state funded residents, the expectation is for authorisation to be in place prior to admission Urgent authorisation replaced with express authority to deprive of liberty in emergency situations. 2 assessors – mental health, mental capacity and ‘proportionality’ assessment Wider scope for using existing assessments to prevent duplication Much more focus on forward planning

Law Commission proposals for MCA and DOLS Same authorisation process for all settings (no need to apply to Court for supported living) Authorisation record can travel with the person to cover multiple settings, and the conveyance. Age reduced to 16+ Ability to authorise for up to 3 years after initial 12 month period. Changes to BIA role – independent reviewer and Approved Mental Capacity Professional Respite When AMCP will become involved.

Law Commission proposals for MCA and DOLS Amendments to MCA Active duty to give weight to person’s wishes Increased requirements in relation to care plans and how best interests decisions are recorded

Where to go for advice Oxfordshire County Council DOLS Team Tel: 01865 328064 Fax: 0845 6416416 dols@oxfordshire.gov.uk Gov.uk website Mental capacity pages SCIE MCA directory www.scie.org.uk/mca-directory