1. Deprivation of Liberty Safeguards, Cheshire West Update Deprivation of Liberty Safeguards, Cheshire West Update

2. Icebreaker

3. Learning Objectives for the day Following this course delegates will: have an understanding of how the requirements of the Deprivation of Liberty Safeguards relate to professional practice. understand when an authorisation to deprive a person of their liberty may necessary. be aware of what may constitute a deprivation of liberty and what procedure should be followed when you think a person might be deprived of their liberty. Appreciate the importance of current case law, including the Supreme Court decision in Cheshire West, in understanding the Deprivation of Liberty Safeguards.

4. The House of Lords Select Committee on the Mental Capacity Act 2005 asked: Is it working? The answer: The verdict: “Poorly drafted…not well understood & poorly implemented.” Law Commission. Failure of DoLS related to professionals not applying 5 principles of the MCA. Interim arrangements for supported accommodation.

5. DoLS in the News… “ Court eyes ‘streamlined’ deprivation of liberty process to cope with surge in cases.” (re. hearing to be held at the Royal Courts of Justice on 5 th June 2014) to consider: ‘bulk’ applications allowing court officials to sign off applications instead of judges Few oral hearings for applications.

6. DoLS in the news… “Mental capacity legislation hits ‘rock bottom’” The Law Society Gazette, March 2014 (re the Select Committee Report & changes to legal aid provision). “Judge condemns council for ‘unlawful detention’ of pensioner moved to care home” The Telegraph, May 2014. “Council stole my son, it took me a year to get him back.” The Sun, 2011. “Former Labour politician suffering from dementia wins right to return to her home of 60 years because care home made her ‘miserable.’” Mail Online, 2014. “Woman to be force fed against her will.” Mail Online, 2012.

7. Background to DoLS Introduced into Mental Capacity Act 2005 (MCA) through the Mental Health Act 2007 Prevent arbitrary decisions that deprive vulnerable people of their liberty Safeguards are to protect service users; when someone is deprived of their liberty the DoLS process provides representatives, rights of appeal and enables the “deprivation” to be reviewed and monitored. Safeguards cover people in hospital and care homes registered under the Care Standards Act 2000

8. The Impact of P v Cheshire West & Chester Council (2014) Since the 19 March 2014 Supreme Court judgment: Over 55,000 applications in the six months following the judgment more than 8 fold-plus increase on 2013-14 figures. (The next data set is due for release on 3 February 2015).

9. P v Cheshire West & Chester Council “A gilded cage is still a gilded cage.” 1) Is the person subject to continuous supervision 2) & continuous control? 3) Is the person free to leave? NOT the person’s compliance or lack of objection. NOT the suitability or relative normality of the placement. NOT the reason or purpose leading to a particular placement.

10. Case study - Helen & Joe

11. Lady Hale on human rights “…human rights are for everyone, including the most disabled members of our community, and…those rights include the same right to liberty as everyone else.”

12. Lady Hale on the fact that the living conditions are comfortable “If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, & unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of liberty of a disabled person. The fact that my living arrangements are comfortable, & indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a gilded cage.”

13. If in doubt… “Err on the side of caution.” The threshold for referral under DoLS is that the person is “at risk” of being deprived of their liberty rather than it being a certainty.

14. Hedley, J. Re. P (2013) “The intention of the MCA is not to dress an incapacitous person in forensic cotton wool, but to allow them as far as possible to make the same mistakes that all other human beings are at liberty to make and not in infrquently do.”

15. CQC Guidance April 2014 It may not be a deprivation of liberty, although the person is not free to leave, if the person is not supervised or monitored all the time and is able to make decisions about what to do and when, that are not subject to agreement by others. If a provider suspects, from the initial care plan or prior knowledge of the person, that someone coming in to their care may be deprived of liberty, the authorisation should be in place before the person arrives. It protects the person’s rights; it does not mean they have to restrict the person’s freedoms unless they have to do so in the person’s best interests. Whenever a person might lack the mental capacity to make their own decisions about care or treatment, providers must work within the principles of the Mental Capacity Act, for example by doing everything possible to empower people to make as many decisions for themselves as they can. Care plans for people lacking mental capacity to agree to arrangements for their care or treatment should show evidence of best interests decision-making in accordance with the Mental Capacity Act, based on decision- specific capacity assessments. In particular, providers should ensure that restrictions on the freedom of anyone lacking capacity to consent to them are proportionate to the risk and seriousness of harm to that person, and that no less restrictive option can be identified.

16. CQC Guidance example of a DoL A typical situation that might now fall within the expanded definition of deprivation of liberty is that of an older person with dementia, living at home with considerable support. Staff monitor her well-being continuously at home because she forgets to eat, is unsafe in her use of appliances, and leaves the bath taps running; she is accompanied whenever she leaves her home because she forgets where she lives and is at risk of road accidents or abuse from others. She shows no sign of being unhappy or wanting to live elsewhere, but, in her best interests, she would not be allowed to leave to go and live somewhere else even if she wanted to.

17. Case study - Peter

18. Streamlining Court of Protection for those in supported living & shared living schemes (not covered by DoLS) known as the “Re X procedure” 17 November 2014 - new streamlined process went live for applications to the Court of Protection to authorise deprivations of liberty outside of care homes and hospitals. Feedback to: COPDOLS/S16@hmcts.gsi.gov.uk. supported by a new Court of Protection application form and a new practice direction. (Guidance: http://www.39essex.com/docs/newsletters/judicial_deprivation_of_lib erty_authorisations_guide.pdf) In a nutshell: The Care Plan is central to evidence provided to Court & will be scrutinised to establish DoL is proportionate & necessary. If the Care Plan changes during the ‘review period’ & restrictions materially increase then a return to Court is required. £400 application fee & £500 hearing fee.

19. What the Code of Practice advises are relevant factors (this now needs to be read in the light of Cheshire West): Restraint is used, including sedation, to admit a person to an institution where that person is resisting admission Restraint is used, including sedation, to admit a person to an institution where that person is resisting admission Staff exercise complete and effective control over the care and movement of a person for a significant period Staff exercise complete and effective control over the care and movement of a person for a significant period Staff exercise control over assessments, treatment, contacts and residence Staff exercise control over assessments, treatment, contacts and residence

20. A decision has been taken by the institution 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. A decision has been taken by the institution 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. A request by carers for a person to be discharged to their care is refused. A request by carers for a person to be discharged to their care is refused. The person is unable to maintain social contacts because of restrictions placed on their access to other people. The person is unable to maintain social contacts because of restrictions placed on their access to other people. The person loses autonomy because they are under continuous supervision and control. The person loses autonomy because they are under continuous supervision and control.

21. What the Code of Practice advises, factors which would not, by themselves, constitute a deprivation of liberty (this now needs to be read in the light of Cheshire West): 1. Benign force (i.e. force that is not being used to overcome resistance) being used to take a confused patient to the hospital or care home. 2. The patient being treated or cared for in a locked environment. 3. The design of door handles or the use of key pads making it difficult for a confused patient to leave the hospital or care home. 4. Staff bringing the patient who has wandered back to the hospital or care home

22. Case law suggests that the following circumstances would not, by themselves, constitute a deprivation of liberty 5. The use of benign force to feed, dress or provide medical treatment for the patient. 6. The use of restraint, medication or seclusion in an emergency situation in order to respond to the patient’s disturbed, threatening or self harming behaviour. 7. Dissuading a confused patient from attempting to leave the hospital or care home, using benign force if necessary. This would be the case even if the confused patient had attempted to leave the premises on more than one occasion. 8.Placing reasonable limitations on the visiting of the patient by relatives or carers.

23. Case law suggests that the following circumstances would not, by themselves, constitute a deprivation of liberty 9. A temporary refusal to let the patient leave the hospital or care home in the absence of an escort whose role would be to support the patient rather than to protect the public.

24. Rochdale MBC v KW [2014] EWCOP 45 Case study

25. DoH MCA Update January 2015 (letter from DoH to MCA Leads): Government intends to form a ‘National Mental Capacity Act Forum’ for health & social care professionals along with those from other sectors (police, finance, legal, housing etc) to improve implementation. Law Commission guidance on what constitutes a deprivation of liberty due at the end of February 2015. Online ‘MCA Directory’ of MCA tools from SCIE by end of Feb 2015 New DoLS forms introduced 14 th January, reduced from 32 to 13: http://www.adass.org.uk/mental-health-Drugs-and-Alcohol/key- documents/New-DoLS-Forms/ http://www.adass.org.uk/mental-health-Drugs-and-Alcohol/key- documents/New-DoLS-Forms/ Chief Social Worker’s MCA Seminar 13 th March 2015 for professionals to share best practice/challenges & initiate local multi- agency collaboration to raise MCA awareness.

26. An NHS Trust & The Patient (Dec 2014) Case study

27. RB v Brighton [2014] Case study

29. The importance of case law & how to stay updated. 39 Essex Street, free Newsletters: http://www.39essex.com/newsletters/

30. The importance of case law & how to stay updated. Lexology: http://www.lexology.com/ (register free for updates on preference selected case law) http://www.lexology.com/ UK Human Rights Blog (1 Crown Office Row): http://ukhumanrightsblog.com/ – not solely on MCA/DoLS but always useful comment on related cases.

31. The importance of case law & how to stay updated. The Small Places blog: http://thesmallplaces.blogspot.com/ The Department of Health: http://www.dh.gov.uk/en/AdvanceSearchResult/i ndex.htm?searchTerms=deprivation+of+liberty+ safeguards http://www.dh.gov.uk/en/AdvanceSearchResult/i ndex.htm?searchTerms=deprivation+of+liberty+ safeguards www.mentalhealthlaw.co.uk http://www.bailii.org Family Law Week: http://www.familylawweek.co.uk

32. Further information: New DoLS forms (January 2015) http://www.adass.org.uk/mental-health- Drugs-and-Alcohol/key-documents/New- DoLS-Forms/

33. Further Information: Where to find information on the IMCA service & DoLS: http://www.dh.gov.uk/en/Publicationsandstati stics/Publications/PublicationsPolicyAndGui dance/DH_097320 Leaflet of the IMCA service: http://www.dh.gov.uk/en/Publicationsandstati stics/Publications/PublicationsPolicyAndGui dance/DH_095891

34. Further information: Find guidance booklets: For Local Authorities: http://www.dh.gov.uk/en/Publicationsandstatistics/Public ations/PublicationsPolicyAndGuidance/DH_094347 For hospitals & care homes: http://www.dh.gov.uk/en/Publicationsandstatistics/Public ations/PublicationsPolicyAndGuidance/DH_094348 For relevant person’s representative: http://www.dh.gov.uk/en/Publicationsandstatistics/Public ations/PublicationsPolicyAndGuidance/DH_094346

35. Further Information: Department of Health, Frequently Asked Questions on DoLS: http://www.dh.gov.uk/en/SocialCare/Deliveringa dultsocialcare/MentalCapacity/MentalCapacityAc tDeprivationofLibertySafeguards/index.htm MCA/DoLS Department of Health newsletters: http://www.dh.gov.uk/en/SocialCare/Deliveringa dultsocialcare/MentalCapacity/MentalCapacityAc tDeprivationofLibertySafeguards/index.htm#jum pTo11

36. Further Information: Information on Lasting Powers of Attorney, Deputies & the Court of Protection: http://www.justice.gov.uk/guidance/protectin g-the-vulnerable/mental-capacity- act/index.htm & http://www.direct.gov.uk/en/Governmentcitiz ensandrights/Mentalcapacityandthelaw/index.htm Koha Learning & Development Consultancy email: viv.thackray@koha.org.uk

37. Assessors Carry out assessments Managing Authority Hospital or Care Home Responsible for care and requesting an assessment of deprivation of liberty Relevant Person Person being deprived of liberty Representative Providing independent support Family/Friends/Carers Consulted, involved and provided with all information Supervisory Body LA Responsible for assessing the need for and authorising deprivation of liberty IMCACourt of Protection