1. The Deprivation of Liberty Safeguards post Cheshire West Simon Cheverst – 12 February 2015

2. Deprivation of Liberty Safeguards post Cheshire West Overview The law to date Practical Implications

3. Deprivation of Liberty Safeguards post Cheshire West The Deprivation of Liberty Safeguards (DOLS) To fill the Bournewood Gap Came into effect in April 2009 Part of the Mental Capacity Act 2005 Underpinned by Code of Practice

4. Deprivation of Liberty Safeguards post Cheshire West The Bournewood gap HL v UK Mr HL was affected by autism at the more severe end of the spectrum Lived in Bournewood hospital for 32 years Discharged to live with paid foster carers in 1994, Mr and Mrs E Admitted back into Bournewood hospital in 1997 following episode of agitation on way to day centre Mr and Mrs E not permitted to visit HL not objecting to placement and conditions

5. Deprivation of Liberty Safeguards post Cheshire West Article 5 of the European Convention of Human Rights (ECHR) Everyone has the right to liberty Only be restricted in certain circumstances one of which being the lawful detention of persons of unsound mind The detention must be in accordance with a procedure prescribed by law The individual must have speedy access to a Court in order to determine the lawfulness of detention

6. Deprivation of Liberty Safeguards post Cheshire West The Decision(s) in HL High Court - Not deprived of Liberty Court of Appeal – Deprived of Liberty House of Lords - Not deprived of Liberty European Court of Human Rights - Deprived of Liberty AND UK not compliant with ECHR = The Bournewood Gap

7. Deprivation of Liberty Safeguards post Cheshire West HL v UK (2004) – The Bournwood case in Europe Factors suggestive of DOL –Specific situation of the individual – Consideration a “range of factors arising such as the type, duration, effects and manor of implementation of the measure in question.” –Difference between restriction and deprivation of liberty “one of degree and intensity not nature or substance”

8. Deprivation of Liberty Safeguards post Cheshire West HL continued The Court said that for the purpose of Article 5 it mattered not whether actual restraint was being used If it would be used upon a request or attempt to leave, Article 5 is triggered Whilst compliant HL was under complete supervision and control and not free to leave

9. Deprivation of Liberty Safeguards post Cheshire West Cheshire West ‘P v Cheshire West and Others’ & P and Q v Surrey – Supreme Court Judgement handed down 19.03.14 [2014] UKSC 19 Court of Protection cases concerning whether the three subject to proceedings were deprived of their liberty

10. Deprivation of Liberty Safeguards post Cheshire West P & Q (aka MIG & MEG) Sisters subject to Children Act proceedings in 2007 when aged 15 and 16

11. Deprivation of Liberty Safeguards post Cheshire West MIG Moderate to severe LD plus problems with sight and hearing Needs help with road crossing as is unaware of danger Lives with foster mother who she adores. Not on medication Never attempted to leave though would be restrained if did so Attended educational unit in term and goes on family holidays

12. Deprivation of Liberty Safeguards post Cheshire West MEG LD mild to moderate Emotional understanding and communication relatively sophisticated. Some autistic traits and prone to challenging behaviour Initially with foster carer though moved to residential home as unable to manage severe aggressive outbursts On tranquilising medication and restraint occasionally required

13. Deprivation of Liberty Safeguards post Cheshire West MEG Cont… Subject to continuous supervision and control Showed no wish to go out on her own and did not need to be prevented from doing so Accompanied at all times when away from the unit and attended the same educational setting as her sister Had a fuller social life than her sister

14. Deprivation of Liberty Safeguards post Cheshire West P 38 years old Born with cerebral palsy and Down’s syndrome 24 hour care required He had lived with his mother all of his life though LA sought orders that he should live in LA organised accommodation owing to a deterioration in mother’s health Lived in supported accommodation with 2 other residents. 2 day staff and one ‘waking’

15. Deprivation of Liberty Safeguards post Cheshire West P Cont… 98 hours additional 1:1 support Attended day centre and hydro therapy pool during week. No tranquilising medication Could walk short distances though needed a wheelchair to go further. Would go to the pub, shops, a club and see mother regularly He wears continence pads and a body suit to prevent him from getting at the pads and putting pieces in mouth. Some limited intervention required

16. Deprivation of Liberty Safeguards post Cheshire West First instance decisions Mrs Justice Parker determined that MIG and MIG were not deprived of their liberty, adopting considerations of ‘relative normality’, the Court of Appeal agreed Mr Justice Baker in the first instance determined that P was deprived of his liberty but that it was in his best interests. The Court of Appeal substituted this judgement with a finding that P was in terms of ‘relative normality’ not deprived of his liberty

17. Deprivation of Liberty Safeguards post Cheshire West The Supreme Court decision The Supreme Court rejected the notion of relative normality - liberty is the same for everybody regardless of disability A DOL is likely to arise in circumstances where the measure is incepted by the State, the person is under continuous supervision and control AND is not free to leave Consideration must also be given to the area and period of confinement The fundamental principles in HL v UK remain

18. Deprivation of Liberty Safeguards post Cheshire West Practical Consequences for Providers The key for providers will be the identification of such situations Regulators will be looking for evidence from providers that they have this issue covered A mechanism to identify either upon admission or before, those who may lack capacity and consider whether any aspect of the test is made out Thereafter refer accordingly

19. Deprivation of Liberty Safeguards post Cheshire West Provider consequences continued… Each individual must be considered on their own particular facts If there is a doubt as to whether any of the key criteria are met, an application to the LA DOLS team should be made Work with the Local Authorities - there are resource issues that the Court is grappling with at the moment Think about policies and pro-forma

20. Deprivation of Liberty Safeguards post Cheshire West The DOLS Code of Practice – Is it relevant? Chapter 2.5 – A DOL may be indicated where: –Restraint is used to admit a person - Staff exercise control over contacts, movement and residence for a significant period - A decision has been taken that the person will not be released into the care of others or permitted to live elsewhere without the agreement of the authority - A request to discharge is refused – The person looses autonomy and control

21. Deprivation of Liberty Safeguards post Cheshire West CQC Guidance Adhere to principles of MCA in assessment of capacity and best interests decision making including the recording of such information in care plans Err on the side of caution in terms of Authorisations Work with Local Authorities Notify CQC of Authorisation requests Review care plans, capacity and whether free to leave Deliver care in the least restrictive circumstances Provide relevant staff training

22. Deprivation of Liberty Safeguards post Cheshire West DH Guidance Relevant staff should familiarise with MCA Be alert to possible restrictions as part of care planning Take steps to review care plans for individuals lacking capacity and determine if DOL Where DOL identified explore least restrictive option (separate guidance available) Where DOL unavoidable it must be authorised Providers and LA’s to work together

23. Deprivation of Liberty Safeguards post Cheshire West Re: X Anticipated 10 fold increase in applications from 12,500 in year 2013/2014 to (expected) figure of 110,000 in year 2014/2015 As of November 2014 estimated by ADASS, that 19,400 applications have not been processed What to do?

24. Deprivation of Liberty Safeguards post Cheshire West Re: X, continued… The Court mandated a new streamlined process whereby applications under the deprivation of liberty safeguarding process were not being completed within the statutory timescales, an application to the Court for a paper determination should be made

25. Deprivation of Liberty Safeguards post Cheshire West Thank you for listening Simon Cheverst DDI: 0207 227 6750 simon.cheverst@rlb-law.com