Mental Capacity and the deprivation of liberty standards Luke Clements www.lukeclements.com

A numbers game DoH ‘RIA’ on MH Bill 2006, Nov 2006 500,000 people who lack capacity 50,000 eligible for ‘special safeguards’ – unable to leave hospital or care home for their own good ‘Assumed’ only 5,000 of these will need assessment Assume 1,250 will actually be detained 2.5% (31 cases) will go to Court of Protection In Bournewood DoH stated an: extra 48,000 p.a. detained as result of CA decision

A numbers game DoH ‘MCA DOLS’ News, August 2008 Number needing assessment will be 21,000 (not 5,000) ie 144 per authority (3 a week) Of which 25% will need authorisations (ie 5,250 , not 1,250) Even if this is correct and also correct that only 2.5% go to CoP – this would be 131 cases – bit 31 cases; 3

Capacity to decide where to live? JE v DE and Surrey CC (2006) Newham LBC v BS & S (2003) HM v. Switzerland (2002) HL v UK (2004)

Section 5 Acts best interests Where a person ‘acts in connection with the care or treatment of a someone believed to lack capacity; and The person has formed a reasonable belief as to the person’s lack of capacity and best interests then the person will not be liable for the action provided it is something that the incapacitated person could have consented to had s/he capacity.

Section 6 ~ restraint Restraint can only be used when: the person restraining reasonably believes it is necessary to prevent harm to the incapacitated person; and it is proportionate both to: the likelihood of the harm and the seriousness of the harm. 3. if it would not constitute detention under article 5(1) ECHR

Article 5(1) No one shall be deprived of liberty Except For one of six specified reasons ~ one of which is a person’s mental disorder, and If it is in accordance with a procedure prescribed by law.

What is ‘detention?’ HL v UK 5th October 2004. R v Bournewood Community & Mental Health NHS Trust ex p L (1999) HL v UK 5th October 2004.

Informal Voluntary Sectioned

Article 5(1) No one shall be deprived of liberty Except For a specified reason (eg a person’s mental disorder) BUT in every case it must be ‘in accordance with a procedure prescribed by law and

Deprivation of liberty HL v UK (2004) ‘‘the starting-point must be the specific situation … whole range of factors … such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance.’.

Deprivation of liberty HL v UK (2004) ‘under continuous supervision and control and was not free to leave’. ‘not determinative whether the ward was “locked” or “lockable”’ Detention possible ‘even during a period when he was in an open ward with regular unescorted access to the unsecured hospital grounds and unescorted leave outside the hospital’.

Deprivation of liberty HL v UK (2004) restraint used, including sedation where resisting complete control over care/movement significant period control over treatment, contacts, residence would be prevented from leaving if attempt to request by carers for discharge refused unable to maintain social contacts because of restrictions placed on access to other people lost autonomy because of continuous supervision & control..

Deprivation of liberty JE v DE and Surrey CC (2006) prisoners detained in an open prison may be subject to virtually no physical restraint within the prison, may be allowed to have extensive social and other contact with the outside world and may even be allowed to leave the prison from time to time, yet they are indubitably “deprived of their liberty”.

Deprivation of liberty LBC v TG, JG & KR (2007) only “an ordinary care home where only ordinary restrictions of liberty applied”; “the family were able to visit G on a largely unrestricted basis and were entitled to remove him from the home for outings”; “G was personally compliant and expressed himself as happy…He had lived in a local authority care home for over three years and was objectively content with his situation there”; “there was no occasion when he was objectively deprived of his liberty”.

Independent Mental Capacity Advocates (IMCAs) Role in MCA detentions where: Nobody appropriate to consult during authorisation process; and No person available to be ‘relevant person’s representative’ Supervisory body must instruct an IMCA if the detained person or their representative requests one.

MCA Deprivation of Liberty Standards 1. The MHA 2007 amends MCA 2005. 2. Provides for 3 routes to MCA detention 3. It is now unlawful to use the common law deprive people of their liberty in analogous situations to that in the Bournewood case.

MCA Deprivation of Liberty Standards Three routes to detention Court of Protection authorised detention under s 16(2)(a). This form of detention has been possible since October 2007. 2. Detention is authorised under s4A & Sch A1 (standard or urgent authorisations); and 3. Detention which is necessary for life-saving or other emergency treatment under s4B

MCA Deprivation of Liberty Standards The s4 MCA amendments are due to come into force in April 2009. Such persons must either have their detention authorised under s16; or Be detained under the Mental Health Act 1983; or Exceptionally under s47 National Assistance Act 1948.

MCA Deprivation of Liberty Standard Authorisations duty on hospitals and care homes to identify anyone at risk of deprivation of liberty and, if they do not consider that a less restrictive regime is possible, request an authorisation from the supervisory body. The supervisory body will be, for a care home - the Local Authority, and for a hospital the PCT (in Wales - the National Assembly)

MCA Deprivation of Liberty Standard Authorisations It will be unlawful for a hospital or care home to detain a person without an authorisation The supervisory body will commission assessments including:

MCA Deprivation of Liberty Standard Authorisations an ‘age’ assessment a “mental health” assessment a “mental capacity” assessment; a “best interests” assessment ie is the deprivation of liberty is necessary in the person’s best interests. an “eligibility” assessment a “no refusals” assessment

MCA Deprivation of Liberty Standard Authorisations Age Assessment MCA detention only applies if the person is 18 or over. If under 18 the guidance suggests use of s25 CA 1989 – a secure accommodation order

MCA Deprivation of Liberty Standard Authorisations Mental Health assessment To establish that the person is suffering from a mental disorder within meaning of MHA 1983 (but to include LD): Either (a) s12 approved Dr; or (b) one with special experience in diagnosis/treatment of mental disorder or (c) has completed MCA mental disorder assessor training

MCA Deprivation of Liberty Standard Authorisations Mental Capacity assessment; To establish that the person lacks capacity in relation to their accommodation in hospital / a care home ‘in practice undertaken by a doctor – but regulations allow for others … eg social workers, nurses, OTs and psychologists … who have relevant skills and experience’

MCA Deprivation of Liberty Standard Authorisations Best Interests assessment Undertaken by an approved mental health professional or other (eg social worker, nurse, OT); Decides a) if a deprivation is occurring / going to occur and b) if this is necessary to prevent harm to the person and is proportionate

MCA Deprivation of Liberty Standard Authorisations Best Interests assessment Duty to consult widely Set a review period (max 12 months) Recommend a representative Stipulate conditions concerning the deprivation (ie necessary constraints) Detailed reasons required

MCA Deprivation of Liberty Standard Authorisations Eligibility Assessment That the person is not already detained or liable to be detained under the MHA 1983 That the person is not objecting to admission to hospital Usually undertaken by the best interests assessor or anybody considered appropriate by the supervisory body

MCA Deprivation of Liberty Standard Authorisations No Refusals assessment That the authorisation would conflict with: a) a valid advance treatment decision under s24-26 MHGA 2005; b) a valid decision by an attorney or deputy Usually undertaken by the best interests assessor or anybody considered appropriate by the supervisory body

MCA Deprivation of Liberty Standard Authorisations as part of the best interests assessment and, if a person is unbefriended, an Independent Mental Capacity Advocate appointed The supervisory body will only grant an authorisation if all the assessments recommend it.

MCA Deprivation of Liberty Standard Authorisations Authorisation should be obtained in advance, except if urgent, in which case should be obtained within seven days. Every person detained will have someone appointed to represent their interests who is independent of the supervisory body and the hospital or care home.

MCA Deprivation of Liberty Standard Authorisations To challenge detention the person or their representative, will have right of appeal to the Court of Protection If mental health legislation could be used instead, the new procedure will not be able to be used to admit or keep people in hospital for treatment for mental disorder if it is reasonably believed that the person concerned objects to detention.