1. Deprivation of Liberty and housing with care models Housing and Dementia Research Consortium June 2015 Sue Garwood Housing LIN Dementia Lead

2. ECHR and Mental Capacity Act It is against the law for the state to deprive a person of their liberty for the purpose of care or treatment if they lack the capacity to agree, without fulfilling certain conditions. It must be: Necessary In the person’s best interests Proportionate to the level of harm being prevented The least restrictive option possible MCA allows people to do certain things without person’s capacitated consent and be immune from prosecution if the above conditions apply BUT this does not apply to deprivation of liberty without proper authorisation.

3. Authorisation In housing settings, authorisation is needed from the Court of Protection - at present Without authorisation, false imprisonment, kidnap or whatever Lords recommendations to extend Deprivation of Liberty Safeguards* to housing Law Commission looking at the whole question and scheduled to go out to consultation July to October –Events on 21 st and 22 nd September –Do go and do respond to consultation

4. New definition of deprivation of liberty Supreme Court judgement in March 2014: Does person have capacity to consent to arrangements? If not –Is person subject to continuous supervision and control? (Does not have to be in line of sight) AND –Is the person free to leave (even if s/he shows no wish to do so)? –Is confinement responsibility of the state? Reduced threshold means many more people, including in housing settings, now fall into definition of deprivation of liberty...but each element open to interpretation

5. Capacity – at point of entry and once in situ Incapacity to consent to what to trigger a deprivation of liberty in HWC? –Signing tenancy (Not a DoL and LPA can sign on P’s behalf) –Making the move at all (Probably not a DoL – LPA can sign) –Making the move with a view to being under continuous supervision and control (definitely a DoL; needs authorisation) And once there, as capacity to consent to restrictions declines, what would meet acid test? –Physical barrier, e.g. Doors requiring codes, handles inaccessible? –Remote monitoring – e.g. Door opening sensor, movement sensors, CCTV –Locator devices or being persuaded not to go out unless unaccompanied How, if at all, does this tie in with models of HWC??

6. Integrated schemes Possibly less at risk of being seen by CQC as a care home Probably more difficult to impose restrictions that would amount to DoL Arrangement recognises that wherever people are, they may develop dementia and cognition may decline But also may not be as dementia-friendly, unless specific programme e.g. Enriched Opportunities Programme Is the way care is typically commissioned and delivered in HWC (core and add-on) capable of providing the quality, flexibility and responsiveness needed? But may protect from registration as a care home Perhaps better for couples where one has dementia

7. Schemes with a separate dementia housing “wing” Probably easier to impose restrictions May be more likely to use physical barriers May be able to support for longer Potential ghetto without good enhancements to justify it e.g. often do not enhance staffing levels and training Not ideal for couples where one without dementia Possibly at greater risk of being seen as care home by CQC

8. Specialist or dedicated schemes More likely to have restrictions in place? May be more likely to have people living there with reduced mental capacity – –at point of entry?? –once there because may be able to support for longer Therefore greater risk of registration as care home if tenancies not seen as valid by CQC On the other hand, more likely to have enhancements specifically for people with dementia, e.g. staff levels & training, LPAs in place Probably not great for couples where one doesn’t have dementia

9. “Hybrid” developments Combine different provisions on one site – complementary (e.g. HWC, specialist care home and resource centre) Those meeting acid test at point of entry more likely to move to care home on site, so DoL and registration risks for HWC less of an issue Can enable a genuine progression, so those needing continuous supervision and control have chance to move on same site if in best interests Could be good for couples

10. But we don’t know: we need research How many people move into HWC who lack the capacity to: sign a TA; or agree to the move; or require continuous supervision and control? How does being part of a couple affect this? Who made the decision and why? What process, e.g. best interests decision-making took place to reach the decision? What was outcome for P? Was it in his/her best interest? Did it maximise wellbeing? Who signed the agreement – if it was signed? How many people move elsewhere from the scheme and why? What difference do the different models of HWC make to the findings?

11. “Philosophical” issues Clear difference between someone who had capacity to agree to the move when they made it and later needs to be deprived of their liberty, and someone who lacks capacity to agree at the point of moving in If people who move in need that level of supervision and control, is there a risk of undermining the distinctive features and benefits of housing settings? –Self-contained property with control over who enters –Ethos of supporting independent living –Freedom to come and go If incapacity to exercise these rights and control, is anything left that person can actually derive benefit from –that makes it better for him/her than a care home? –that compensates for the lower level of regulator scrutiny?

12. Whose best interests? Has the decision to move someone in to a HWC setting genuinely been based on what is in their best interests? – must be individually decided Is that level of supervision and control routinely provided in the HWC scheme – if so, is it in reality an unregulated care home? –OR alternatively Is individual not actually receiving the quality and level of care and supervision they need? Will the new DoL threshold change – what LAs seek to develop in their areas? – and how they use HWC for people with dementia?

13. Best interests? How can commissioners and providers... –enable people who will genuinely benefit to move in to HWC settings –and also to remain there if they have lost capacity to agree to restrictions/DoL when it is genuinely in their best interests while at the same time –ensuring safeguards are in place so HWC is only used when it is in person’s best interest? Important not to get hung up on technicality of DoL: –Any restrictions need to be proportionate to level of harm being prevented and the least restrictive option –Acid test doesn’t cover things like freedom to choose who to associate with in line with Article 8 of ECHR

14. Information sources Housing LIN Deprivation of Liberty website http://www.housinglin.org.uk/Topics/browse/HousingandDementia/Legislati on/DoL/ Law Society Practical Guide http://tinyurl.com/pcepksz CQC briefing http://www.cqc.org.uk/service-providers/registered-services/guidance- meeting-standards/how-mental-capacity-act-2005-affect The Right to Freedom: Joanna Burton http://www.insidehousing.co.uk/home/blogs/the-right-to- freedom/7006274.article 39 Essex St MCA newsletters http://www.39essex.com/resources-and-training/mental-capacity-law/

15. C/o EAC 3rd Floor, 89 Albert Embankment London SE1 7TP email: info@housinglin.org.ukinfo@housinglin.org.uk tel: 020 7820 8077 website: www.housinglin.org.ukwww.housinglin.org.uk Twitter: @HousingLIN Thank you!