deprivation of liberty safeguards policy

Deprivation of Liberty Safeguards Policy v4.0 1

Policy Title

Deprivation of Liberty Safeguards Policy

Policy Number

OP57

Version Number

6.0

Ratified By

Safeguarding Committee

Date Ratified

07/08/2020

Effective From

01/09/2020

Author(s) (name and designation)

Jill Lax, Strategic Safeguarding Lead

Sponsor

Hilary Lloyd, Director of Nursing, Midwifery and Quality

Expiry Date

01/08/2023

Withdrawn Date

Unless this copy has been taken directly from Pandora (the Trust’s Sharepoint document management system) there is no assurance that this is the most up to date version This policy supersedes all previous issues

Deprivation of Liberty Safeguards Policy v6 2

Version Control

Version Release Author/Reviewer Ratified

by/Authorised by

Date Changes

(Please identify page no.)

1.0

29/03/2009

Judith Gibson Central Team 29/03/2009

2.0

08/10/2012 Claire Downes Safeguarding Committee

14/09/2012 New policy format

2.1 22/08/2013 Claire Downes Director of Transformation

and Compliance

21/08/2013 New Appendix 3 included (amalgamation of previous appendices 3 and 4 now as one form)

3.0 21/08/2014 Claire Downes Safeguarding

committee 18/07/2014 6.4 Identifying a

possible Deprivation of Liberty amended following Supreme Court Judges ruling 19.03.2014

4.0 02/10/2017 Simon Rowland Joanne Coleman


02/06/2017 Updated Appendix 2, 3 and 5. 6.4 Identifying a possible Deprivation of Liberty amended following Law Society guidance. Change in Training matrix. Change in contact details.

5.0 01/10/2019 Jill Lax Safeguarding Committee

02/08/2019 5 Amendment to definition of Mental Health Assessor

6.0 01/09/2020 Sarah Williams Safeguarding Committee

07/08/2020 9 & 10 Amendments to procedure for application. Appendix 1 DoLS Application Flow Chart


Contents

Section Page

1 Introduction ......................................................................................................................

2. Policy scope ...................................................................................................................... 3. Aim of policy......................................................................................................................

4 Duties (roles and responsibilities) .................................................................................... 5 Definitions ......................................................................................................................... 6 The Legal Framework ........................................................................................................

6.1 Qualifying Requirements ...................................................................................... 6.2 Assessing whether the Qualifying Requirements are met ................................... 6.3 Assessing Time Limits ............................................................................................ 6.4 Identifying a Possibly Deprivation of Liberty ........................................................ 6.5 Procedure for Standard Authorisation ................................................................. 6.6 Procedure for Urgent Authorisation ..................................................................... 6.7 Requesting an Extension of an Urgent Authorisation .......................................... 6.8 Possible Unauthorised Deprivations ..................................................................... 6.9 Record Keeping ..................................................................................................... 6.10 Relevant Person’s Representative ........................................................................ 6.11 Independent Mental Capacity Advocate (IMCA) .................................................. 6.12 Court of Protection ...............................................................................................

7. Training ............................................................................................................................. 8. Diversity and inclusion ...................................................................................................... 9. Monitoring compliance with the policy ............................................................................ 10. Consultation and review ................................................................................................... 11 Implementation of policy (including raising awareness) .................................................. 12 References......................................................................................................................... 13 Associated documentation (policies) ................................................................................ Appendices Appendix 1 DoLS Application Flow Chart ...................................................................................... Appendix 2 Form 1 Urgent Autorisation and Standard Authorisation ......................................... Appendix 3 Form MCA 1 ............................................................................................................... Appendix 4 Form MCA 2 ...............................................................................................................


Policy Title

1 Introduction

The Mental Capacity Act 2005 provides a statutory framework for acting and making decisions on behalf of individuals who lack the mental capacity to do so for themselves. From 1 April 2009, the Act contains procedures for authorising the deprivation of liberty in hospitals and care homes of some people who lack capacity to consent to being there. Guidance on the operation of the procedures is contained in the Deprivation of Liberty Safeguards Code of Practice, which is a supplement to the main Mental Capacity Act 2005 Code of Practice. The Safeguards provide a statutory framework in circumstances where a person, aged 18 years or over, lacks the necessary capacity to consent to care or treatment and the circumstances / environment in which that care or treatment is to be provided amounts to a deprivation of liberty. This deprivation of liberty must be for the prevention of harm to the incapacitated person and in the best interests of the person. The Safeguards do not apply to people detained under the Mental Health Act 1983.

2 Policy scope

This document gives guidance to practitioners regarding the identification of a potential deprivation of liberty and the process is to be followed if an unavoidable deprivation of liberty is going to occur. This policy is relevant to all identified deprivation of liberties within a Gateshead Health NHS Trust hospital.

3 Aim of policy

This policy is to ensure the Trust, as a managing authority, meets its responsibilities under the Mental Capacity Act Deprivation of Liberty Safeguards. It explains the procedures and identifies responsibilities everyone has and includes the deprivation of liberty safeguards standard forms, standard letters and other records that need to be completed and kept by the Trust when these procedures are used.

4 Duties (roles and responsibilities)

Trust Board The Trust Board is responsible for implementing a robust system of corporate governance within the organisation. This includes having a systematic process for the development, management and authorisation of policies. Chief Executive The Chief Executive has overall responsibility to ensure that policies and procedures are in place for the Deprivation of Liberty Safeguards.


Divisional Directors, Service Managers, Senior nurses, Ward and Department Managers Are responsible for ensuring that the Deprivation of Liberty Safeguards are adhered to. All staff Are responsible for ensuring they are aware of the implications of the Deprivation of Liberty Safeguards.

5 Definitions

Best Interests Assessor (BIA) – A professional person who has undertaken specialist training. Court of Protection – A specialist Court introduced by the Mental Capacity Act 2005. Deprivation of Liberty - A term used in the European Convention on Human Rights to describe situations when a person’s freedom is taken away. ECtHR – European Court of Human Rights Independent Mental Capacity Advocate (IMCA) – An advocacy service introduced by the Mental Capacity Act 2005. Lasting Powers of Attorney – The ability, whilst you have capacity, to appoint a person to make decisions on your behalf at a time in the future when you may lack capacity to make specific decisions yourself relating to property, finance or health and welfare. Managing Authority – In the case of a NHS hospital, the managing authority is the NHS body responsible for the running of the hospital in which the relevant person is. In the case of a Care Home the Managing Authority will be the person registered under part 2 of the Care Standards Act 2000 in respect of the care home. Mental Health Assessor – A doctor who is approved under Section 12 of the Mental Health Act and who have completed the standard training for mental health assessors. Or be a registered medical practitioner with at least three years’ post-registration experience in the diagnosis or treatment of mental disorder, eg, a GP with a special interest.

Relevant Person- The individual who is being cared for under the Deprivation of Liberty Safeguards either urgent or standard authorisation. Relevant Persons Representative – The person appointed by the Supervisory Body to maintain contact with and support the person who is being cared for under a Deprivation of Liberty Authorisation. Restriction of Liberty – A situation where care and treatment necessitates some restrictions to a person’s liberty for a short or limited time period. Standard Authorisation – The authorisation in advance required by a managing authority, given by the relevant supervisory body, when it appears likely that, at some time in the next 28 days, someone will be accommodated in its hospital or care home in circumstances that amount to a deprivation of liberty.


Supervisory Body – A supervisory body is responsible for considering requests for authorisations, commissioning the required assessments and, where all the assessments agree, for authorising the deprivation of liberty. If a Primary Care Trust (PCT) commissions the relevant care or treatment then they are the supervisory body, in any other case, the PCT for the area in which the hospital is situated is the supervisory body. Where the deprivation of liberty safeguards are applied to a person in a care home, the supervisory body will be the local authority for the area in which person is ordinarily resident. If the person is of no fixed abode then the supervisory body will be the local authority for the area in which the care home is situated. Urgent Authorisation – Where a standard authorisation in advance is not possible, and the managing authority believes it is necessary to deprive someone of their liberty in their best interests before the standard authorisation process can be completed, the managing authority must apply an urgent authorisation themselves which will allow up to seven days for the standard authorisation to be applied.

6 The Legal Framework

The legal framework states that: A person may not be deprived of their liberty in a hospital or care home unless a

standard or urgent authorisation is in force. The Safeguards apply to local authority, NHS, independent and voluntary sector

hospitals and care homes and to anybody being treated or cared for in those environments irrespective of whether they are publicly or privately funded.

Managing Authorities must request a standard authorisation from the Supervisory Body, when one is necessary, in advance of a deprivation of liberty commencing wherever possible. They must also ensure that any conditions attached to a standard authorisation are complied with.

If it is necessary to deprive a person of their liberty before a standard authorisation can be given, the managing authority must grant itself an urgent authorisation. This may last for a maximum of seven days only, by which time a standard authorisation must be in place. A supervisory body may, however, extend an urgent authorisation for a maximum of a further seven days if, in exceptional circumstances, it has not been possible to complete the standard authorisation process within the timescale of the original urgent authorisation.

Supervisory Bodies will undertake an assessment on receipt of an application and will appoint a relevant person’s representative to support the person being deprived of their liberty.

For the purposes of the Mental Capacity Act 2005, references to deprivation of a person’s liberty have the same meaning as in Article 5(1) of the European convention on Human Rights.

There are two main exceptions to this scheme. Firstly, the Court of Protection may authorise the deprivation of a person’s liberty in a hospital or care home and secondly some hospitals are registered to detain people under the Mental Health Act 1983. In some circumstances the Mental Health Act may be used instead.


Deprivation of Liberty must be for the purpose of providing care and treatment but an urgent or standard authorisation does not authorise such care or treatment. The arrangements for providing care or treatment to a person in respect of whom a deprivation of liberty authorisation is given are subject to the wider provisions of the Mental Capacity Act 2005.

6.1 Qualifying Requirements

Certain conditions must be met before a person may be deprived of their liberty under a standard authorisation. These conditions are known as the ‘qualifying requirements’. The qualifying requirements are: • Age requirement.

The relevant person must be 18 years of age or over.

• No refusals requirement. An authorisation to deprived the relevant person of their liberty would not conflict with other existing authority for decision-making for that person.

• Mental capacity requirement. The relevant person must lack the capacity to decide whether or not they should be accommodated in the hospital or care home.

• Mental health requirement. The mental health assessment is to establish whether the relevant person has a mental disorder within the meaning of the Mental Health Act 1983.

• Eligibility requirement. Relates specifically to the relevant person’s status, or potential status, under the Mental Health Act 1983.

• Best interests requirement. The purpose of the best interests assessment is to establish whether a deprivation of liberty is occurring or is going to occur and if it is in the person’s best interests.

6.2 Assessing Whether the Qualifying Requirements are Met

Once a standard authorisation is requested, the relevant person will be assessed by professionals chosen by the supervisory body. The assessors must decide whether or not the person satisfies the qualifying requirements. Because a standard authorisation may be applied for before the person needs to be deprived of their liberty, the person’s circumstances may change before the authorisation is granted. When assessing whether or not a person meets a particular qualifying requirement, the assessor must take into account the circumstances as they are expected to be when the requested standard authorisation comes into force. Assessors may at all reasonable times examine and take copies of:


• any health record relating to the person; • any local authority record compiled in accordance with a social services

function; and any record held by a person registered under Part 2 of the Care Standards Act 2000 which

the assessor considers may be relevant to their assessment. 6.3 Assessment Time Limits

If a managing authority has granted itself an urgent authorisation, all of the assessments required for a standard authorisation must be completed during the period the urgent authorisation is in force. Where no urgent authorisation is in force, all assessments required for a standard authorisation must be completed within 21 days from the date the supervisory body receives a request for such an authorisation.

6.4 Identifying a Possible Deprivation of Liberty

The Supreme Court has clarified that there is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights in the following circumstances: a. The person is under continuous supervision and control and b. Is not free to leave and c. The person does not have capacity to consent to these arrangements. This is now known as the ‘Acid Test’. Whether a person is compliant or does not object to these arrangements are not relevant, neither is the reason or purpose behind these arrangements. It is always necessary in each case to consider whether the deprivation of liberty lasts more than a negligible period of time. Precisely how long such a period of time is has not been clarified but it is advisable to allow a period of assessment in order to establish the likelihood of the person regaining capacity and the length of time the patient is expected to remain in hospital. As a general principle, the Trust view is that if after five days following admission the patient has not regained capacity and there is no discharge plan then authorisation to deprive that individual of their liberty should be sought.

6.5 Procedure for Standard Authorisation The decision to apply for authorisation for a deprivation of liberty will be a multi-disciplinary one. A professionally qualified member of the care team will be nominated by the multi-disciplinary team to complete the application using Form 1 (Appendix 2).


The DoLS application must be emailed to the Safeguarding Adults Team ([email protected]), the Safeguarding Adults team will then review each application and forward it to the relevant Supervisory Body. If the person is considered to be deprived of their liberty while waiting for the standard authorisation an urgent authorisation should be granted by the Trust (see 6.8 below). The Supervisory Body will then arrange for a Mental Health Assessor and a Best Interest Assessor to carry out an assessment of the six qualifying requirements. An authorisation will not be given if any of the requirements are not fulfilled. The Supervisory Body will then issue a written authorisation to deprived that person of their liberty which will state the duration which the authorisation is to be in force, the purpose for which the authorisation is given and any conditions subject to which the authorisation is given. It is the responsibility of the supervisory body to appoint a representative for the person being deprived of their liberty. Once the application has been assessed by the Supervisory Body, the outcome of the assessment and relevant paperwork will be forwarded to the ward. This must be filed within the patient’s health records. The Safeguarding Adults Team will then inform the CQC of the outcome of the application. The managing authority must take all practical and possible steps to ensure that the person deprived of their liberty understands the effects of the authorisation and their rights around it. These include their right to challenge the authorisation via the Court of Protection, their right to request a review, and their right to have an IMCA instructed. Appropriate information must be given to the person deprived of their liberty both orally and in writing. Any written information must also be given to the relevant person’s representative. The managing authority is responsible for ensuring that it does not deprive a person of their liberty without an authorisation. The managing authority must comply with the law in this respect: where a request for an authorisation is turned down, it will need to review the relevant person’s actual or proposed care arrangements to ensure that a deprivation of liberty is not allowed to either continue or commence. The managing authority must apply for a new standard authorisation no less than one week of the original authorisation expiry date in the event that a deprivation of liberty is required to continue after that expiry date. To request a further authorisation, Form 2 (available on the intranet) must be completed and emailed to the Safeguarding Adults team. If this is not completed in the necessary time frame, a new authorisation must be sought by completing Form 1 again. If the relevant person no longer meets any of the other qualifying requirements or the person has been discharged then the managing authority must complete Form 10 to request a review of the authorisation. Form is available on the Safeguarding Adults Intranet page in the MCA/DoLS section.


6.6 Procedure for Urgent Authorisation Urgent authorisation cannot be made without a request for a standard authorisation being made simultaneously. Therefore before giving urgent authorisation the Trust, via the multi-disciplinary team will have a reasonable expectation that the six qualifying requirements for a standard authorisation are likely to be met (see 6.1 above). The views of the relevant person’s family, friends, carers, other staff who have involvement in the person’s case should be sought and considered at an early stage and outcome recorded in the person’s records. Once a decision has been made to apply for a standard authorisation consideration should be given to the person’s status at that point and the time during the assessment process, if it is considered that the person is or will be deprived of their liberty at any point during this time an urgent authorisation will be made. A professionally qualified member of the care team will be nominated by the multi-disciplinary team to provide the authorisation and complete the process using Form 1 (Appendix 3). The maximum period for which a managing authority can give itself an urgent authorisation is seven days. Once an urgent authorisation is given, the law provides that all of the assessments required for a standard authorisation must be completed before the urgent authorisation expires. The notification must be emailed to the Safeguarding Adults Team ([email protected]).

6.7 Requesting an Extension of an Urgent Authorisation

There may be exceptional reasons where it appears that the urgent authorisation might expire before the assessors can complete all of the assessments necessary for a standard authorisation. The authorisation can be extended by a maximum of a further seven days by the supervisory body. A few days in advance of the expiry of an urgent authorisation, the Safeguarding Adults Team should check with the supervisory body how the standard authorisation assessment process is progressing. If an extension of the urgent authorisation is needed, the Safeguarding Adults Team will liaise with the relevant ward to ensure a request is made.

6.8 Possible Unauthorised Deprivations

If the relevant person themselves, any relative, friend or carer or any other third party (such as a person carrying out an inspection visit or a member of an advocacy organisation) believes that a person is being deprived of liberty without the managing authority having applied for an authorisation, they should draw this to the attention of the managing authority. In the first instance, they should ask the managing authority to apply for an authorisation if it wants to continue with the care regime, or to change the care regime immediately. Given the seriousness of deprivation of liberty, the managing authority must respond within a reasonable time to the request. This would normally mean within 24 hours.

mailto:[email protected]


In the first instance the managing authority should try and resolve the matter. However, if the managing authority is unable to do this with the concerned person quickly, they should submit a request for a standard authorisation to the supervisory body. If the concerned person has raised the matter with the managing authority, and the managing authority does not apply for an authorisation within a reasonable period, the concerned person can ask the supervisory body to decide whether there is an unauthorised deprivation of liberty. They should: • tell the supervisory body the name of the person they are concerned about

and the name of the hospital or care home, and • as far as they are able, explain why they think that the person is deprived of

their liberty. 6.9 Record Keeping

The Safeguarding Adults Team will open a new file for a person whenever an urgent authorisation is given or a standard authorisation is requested. This file will remain open until the person ceases to be deprived of their liberty under the Mental Capacity Act 2005. It will contain all of the completed forms, notices, requests and other documents concerning the person and their deprivation of liberty. Completed application / urgent authorisations are to be forwarded to the Safeguarding Adults Team and a copy of all forms will be kept in the relevant person’s medical notes. Ward staff must record any contact made by the Relevant Person Representative, any IMCA and relatives and record their comments and/or views regarding the persons case. This should be recorded in the persons health records.

6.10 Relevant Person’s Representative

The supervisory body must appoint a relevant person’s representative for every person to whom they give a standard authorisation for deprivation of liberty. It is important that the representative is appointed at the time the authorisation is given or as soon as possible and practical thereafter. The role of the relevant person’s representative, once appointed, is: • to maintain contact with the relevant person, and • to represent and support the relevant person in all matters relating to the

deprivation of liberty safeguards, including, if appropriate, triggering a review, using an organisation’s complaints procedure on the person’s behalf or making an application to the Court of Protection.

As soon as possible and practical after a standard deprivation of liberty authorisation is given, the managing authority must seek to ensure that the relevant person and their representative understand: • the effect of the authorisation • their right to request a review • the formal and informal complaints procedures that are available to them


• their right to make an application to the Court of Protection to seek variation or termination of the authorisation, and

• their right, where the relevant person does not have a paid ‘professional’ representative, to request the support of an Independent Mental Capacity Advocate (IMCA).

6.11 Independent Mental Capacity Advocate (IMCA)

A person who is being deprived of their liberty will be in a particularly vulnerable position during any gaps in the appointment of the relevant person’s representative, since there may be nobody to represent their interests or to apply for a review on their behalf. In these circumstances, if there is nobody who can support and represent the person (other than a person engaged in providing care and treatment in a professional or paid capacity) the managing authority must notify the supervisory body, who must instruct an IMCA to represent the relevant person until a new representative is appointed. Both the person who is deprived of their liberty under a standard authorisation and their representative have a statutory right of access to an IMCA. It is the responsibility of the supervisory body to instruct an IMCA if the relevant person or their representative requests one. The role of the IMCA is to help represent the relevant person and to assist the relevant person and their representative to understand the effect of the authorisation and what it means, why it has been given, how long it will last, conditions attached to the authorisation and how to trigger a review or challenge in the Court of Protection.

6.12 Court of Protection

To comply with Article 5(4) of the European Convention on Human Rights, anybody deprived of their liberty in accordance with the safeguards is entitled to the right of speedy access to a court that can review the lawfulness of their deprivation of liberty. The Court of Protection, established by the Mental Capacity Act 2005, is the court for this purpose. The relevant person, or someone acting on their behalf, may make an application to the Court of Protection before a decision has been reached. Once a standard authorisation has been given, the relevant person or their representative has the right to apply to the court to determine: • whether the relevant person meets one or more of the qualifying

requirements • the period for which the standard authorisation is to be in force • the purpose for which the standard authorisation has been given • the conditions attached to the standard authorisation

Where an urgent authorisation has been given, the relevant person or certain persons acting on their behalf, such as a donee or deputy, has the right to apply to the court to determine:


• Whether the urgent authorisation should have been given • The period for which the urgent authorisation is to be in force • The purpose for which the urgent authorisation has been given

The following people have an automatic right of access to the Court of Protection and do not have to obtain permission from the court to make an application:

• A person who lacks, or is alleged to lack, capacity in relation to a specific decision or action

• The donor of a Lasting Power of Attorney to whom an application relates, or their donee

• A deputy who has been appointed by the court to act for the person concerned

• A person named in an existing court order to which the application relates • The person appointed by the supervisory body as the relevant persons

representative

Details are available from the Office of the Public Guardian (http://www.publicguardian.gov.uk/).

7 Training

Type Staff Group Frequency Safeguarding Adults presentation at Trust Mandatory Training – signposts staff to MCA & DoLS training

All staff groups attend. As per Mandatory Training

MCA & DoLS presentation during Trust Induction Programme

All Health Care Profession staff attend.

Induction programme undertaken each month as necessary.

8 Diversity and inclusion

The Trust is committed to ensuring that, as far as is reasonably practicable, the way we provide services to the public and the way we treat staff reflects their individual needs and does not unlawfully discriminate against individuals or groups on the grounds of any protected characteristic (Equality Act 2010). This policy aims to uphold the right of all staff to be treated fairly and consistently and adopts a human rights approach. This policy has been appropriately assessed.

9 Monitoring compliance with the policy

Standard / Process / Issue Monitoring and Audit

Method By Committee Frequency Statutory notification of all Applications to deprive someone of their liberty will be sent to CQC and the outcome of the assessment.

Statutory notifications will be sent and a data base will be kept of all DoLS

Safeguarding Adults Team


Data will be reported upon on a quarterly basis

http://www.publicguardian.gov.uk/


Standard / Process / Issue Monitoring and Audit Method By Committee Frequency

applications and their outcomes.

10 Consultation and review

This policy has been reviewed against the Mental Capacity Act 2005, The Mental Capacity Act 2005 Code of Practice and the Deprivation of Liberty Safeguards Code of Practice and in discussion with the Strategic Safeguarding lead and the Trust’s Equality Officer.

11 Implementation of policy (including raising awareness)

This policy will be implemented within the Trust in compliance with the Policy for the Development, Management and authorisation of policies and procedures and through the Trust in-house training programme for Deprivation of Liberty Safeguards.

12 References

Mental Health Act 1983 Code of Practice TSO, 2015. Reference Guide to the Mental Health Act 1983 TSO, 2015. Mental Capacity Act 2005 Code of Practice, TSO, 2007. Mental Capacity Act Deprivation of Liberty Safeguards Code of Practice. TSO 2008. The Law Society Identifying a deprivation of liberty: a practical guide 2015

12 References OP25 – Advanced decision to Refuse Treatment policy OP75d – Safeguarding Adults policy RM74 – Mental Capacity Act policy


Appendix 1


Case ID Number:

DEPRIVATION OF LIBERTY SAFEGUARDS FORM 1 REQUEST FOR STANDARD AUTHORISATION AND URGENT AUTHORISATION

Request a Standard Authorisation only (you DO NOT need to complete pages 6 or 7)

Grant an Urgent Authorisation (please ALSO complete pages 6 and 7 if appropriate/required)

Full name of person being deprived of liberty

Sex

Date of Birth (or estimated age if unknown)

Est. Age

Relevant Medical History (including diagnosis of mental disorder if known)

Sensory Loss Communication Requirements

Name and address of the care home or hospital requesting this authorisation

Date of Admission

Telephone Number

Person to contact at the care home or hospital, (including ward details if appropriate)

Name

Telephone

Email

Ward

Usual address of the person, (if different to above)

Telephone Number

Name of the Supervisory Body where this form is being sent

How the care is funded Local Authority please specify

NHS Local Authority and NHS (jointly funded)

Self-funded by person Funded through

insurance or other

Appendix 2


REQUEST FOR STANDARD AUTHORISATION

THE DATE FROM WHICH THE STANDARD AUTHORISATION IS REQUIRED: If standard only – within 28 days If an urgent authorisation is also attached – within 7 days

PURPOSE OF THE STANDARD AUTHORISATION • Please describe the care and / or treatment this person is receiving or will receive day-to-day and attach a relevant care plan. • Please give as much detail as possible about the type of care the person needs, including personal care, mobility, medication,

support with behavioural issues, types of choice the person has and any medical treatment they receive. • Explain why the person is or will not be free to leave and why they are under continuous or complete supervision and control. • Describe the proposed restrictions or the restrictions you have put in place which are necessary to ensure the person receives

care and treatment. (It will be helpful if you can describe why less restrictive options are not possible including risks of harm to the person.)

• Indicate the frequency of the restrictions you have put in place.


INFORMATION ABOUT INTERESTED PERSONS AND OTHERS TO CONSULT Family member or friend Name

Address

Telephone

Anyone named by the person as someone to be consulted about their welfare

Name

Address

Telephone

Anyone engaged in caring for the person or interested in their welfare

Name

Address

Telephone

Any donee of a Lasting Power of Attorney granted by the person

Name

Address

Telephone

Any Personal Welfare Deputy appointed for the person by the Court of Protection

Name

Address

Telephone

Any IMCA instructed in accordance with sections 37 to 39D of the Mental Capacity Act 2005

Name

Address

Telephone


WHETHER IT IS NECESSARY FOR AN INDEPENDENT MENTAL CAPACITY ADVOCATE (IMCA) TO BE INSTRUCTED Place a cross in EITHER box below Apart from professionals and other people who are paid to provide care or treatment, this person has no-one whom it is appropriate to consult about what is in their best interests

There is someone whom it is appropriate to consult about what is in the person’s best interests who is neither a professional nor is being paid to provide care or treatment

WHETHER THERE IS A VALID AND APPLICABLE ADVANCE DECISION Place a cross in one box below

The person has made an Advance Decision that is valid and applicable to some or all of the treatment

The Managing Authority is not aware that the person has made an Advance Decision that may be valid and applicable to some or all of the treatment

The proposed deprivation of liberty is not for the purpose of giving treatment

THE PERSON IS SUBJECT TO SOME ELEMENT OF THE MENTAL HEALTH ACT (1983)

Yes No If Yes please describe further e.g. application/order/direction, community treatment order, guardianship

OTHER RELEVANT INFORMATION Names and contact numbers of regular visitors not detailed elsewhere on this form: Any other relevant information including safeguarding issues:

PLEASE NOW SIGN AND DATE THIS FORM

Signature Print Name

Date Time

I HAVE INFORMED ANY INTERESTED PERSONS OF THE REQUEST FOR A DoLS AUTHORISATION (Please sign to confirm)


RACIAL, ETHNIC OR NATIONAL ORIGIN Place a cross in one box only

White Mixed / Multiple Ethnic groups

Asian / Asian British Black / Black British

Not Stated Undeclared / Not Known

Other Ethnic Origin (please state)

THE PERSON’S SEXUAL ORIENTATION Place a cross in one box only Heterosexual Homosexual

Bisexual Undeclared

Not Known

OTHER DISABILITY While the person must have a mental disorder as defined under the Mental Health Act 1983, there may be another disability that is primarily associated with the person. This is based on the primary client types used in the Adult Social Care returns. To monitor the use of DoLS, the HSCIC requests information on other disabilities associated with the individual concerned. The presence of “other disability” may be unrelated to an assessment of mental disorder or lack of capacity. Place a cross in one box only Physical Disability: Hearing Impairment Physical Disability: Visual Impairment

Physical Disability: Dual Sensory Loss Physical Disability: Other

Mental Health needs: Dementia Mental Health needs: Other

Learning Disability Other Disability (none of the above)

No Disability

RELIGION OR BELIEF Place a cross in one box only

None Not stated

Buddhist Hindu

Jewish Muslim

Sikh Any other religion

Christian (includes Church of Wales, Catholic, Protestant and all other Christian denominations)


ONLY COMPLETE THIS SECTION IF YOU NEED TO GRANT AN URGENT AUTHORISATION BECAUSE IT APPEARS TO YOU THAT THE DEPRIVATION OF LIBERTY IS ALREADY OCCURING, OR ABOUT TO OCCUR, AND YOU REASONABLY THINK ALL OF THE FOLLOWING CONDITIONS ARE MET URGENT AUTHORISATION Place a cross in EACH box to confirm that the person appears to meet the particular condition

The person is aged 18 or over

The person is suffering from a mental disorder

The person is being accommodated here for the purpose of being given care or treatment. Please describe further on page 2

The person lacks capacity to make their own decision about whether to be accommodated here for care or treatment

The person has not, as far as the Managing Authority is aware, made a valid Advance Decision that prevents them from being given any proposed treatment

Accommodating the person here, and giving them the proposed care or treatment, does not, as far as the Managing Authority is aware, conflict with a valid decision made by a donee of a Lasting Power of Attorney or Personal Welfare Deputy appointed by the Court of Protection under the Mental Capacity Act 2005

It is in the person’s best interests to be accommodated here to receive care or treatment, even though they will be deprived of liberty

Depriving the person of liberty is necessary to prevent harm to them, and a proportionate response to the harm they are likely to suffer otherwise

The person concerned is not, as far as the Managing Authority is aware, subject to an application or order under the Mental Health Act 1983 or, if they are, that order or application does not prevent an Urgent Authorisation being given

The need for the person to be deprived of liberty here is so urgent that it is appropriate for that deprivation to begin immediately before the request for the Standard Authorisation is made or has been determined

AN URGENT AUTHORISATION IS NOW GRANTED This Urgent Authorisation comes into force immediately. It is to be in force for a period of: days The maximum period allowed is seven days. This Urgent Authorisation will expire at the end of the day on: Signed Print name

Date Time


REQUEST FOR AN EXTENSION TO THE URGENT AUTHORISATION If Supervisory Body is unable to complete the process to give a Standard Authorisation (which has been requested) before the expiry of the existing Urgent Authorisation An Urgent Authorisation is in force and a Standard Authorisation has been requested for this person. The Managing Authority now requests that the duration of this Urgent Authorisation is extended for a further period of DAYS (up to a maximum of 7 days) It is essential for the existing deprivation of liberty to continue until the request for a Standard Authorisation is completed because the person needs to continue to be deprived and exceptional reasons are as follows (please record your reasons): Please now sign, date and send to the SUPERVISORY BODY for authorisation Signature Date

RECORD THAT THE DURATION OF THIS URGENT AUTHORISATION HAS BEEN EXTENDED This part of the form must be completed by the SUPERVISORY BODY if the duration of the Urgent Authorisation is extended. The Managing Authority does not complete this part of the form. The duration of this Urgent Authorisation has been extended by the Supervisory Body. It is now in force for a further days Important note: The period specified must not exceed seven days. This Urgent Authorisation will now expire at the end of the day on:

SIGNED (on behalf of the Supervisory Body)

Signature

Print Name

Date Time


Appendix 3 Form MCA1

Record of a Mental Capacity Assessment

For further guidance, please refer to chapters 2 and 3 of the Mental Capacity Act 2005 Code of Practice.

Name of person being assessed Date of Birth

Assessment start date This assessment must adhere to the principles of the Mental Capacity Act:-

A person must be assumed to have capacity unless it is established that he lacks capacity. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

What is the decision that the person needs to make? Be specific, relate it to the person and try to capture it in one sentence

Does this decision need to be taken now? Can it be delayed? Is there a likelihood of the person regaining capacity? What is the timescale for making this decision?

What is the information relevant to this decision? What is the nature of the decision? Why is the decision needed? Who requires it? What choices are available? What are the likely consequences of or risks involved in deciding one way or another, or making no decision at all?

Is there an impairment of, or disturbance in the functioning of the person’s mind or brain? E.g. dementia, delirium, acquired brain injury, mental illness, learning disability, phobia, confusion, drowsiness or loss of consciousness due to a physical or medical condition, treatment, or because drunk or under the influence of drugs. Summarise how you have reached your conclusion. Give the source of the information e.g. medical reports, social work records, information from family or carers, your own observations or professional judgement etc. Indicate whether the impairment is temporary or permanent.


If you have answered No to the last question, then the person cannot lack capacity within the meaning of the Mental Capacity Act 2005. Go straight to the Outcome of assessment section at the end of this form, record that the person has capacity and the decision that they have made, then sign and date this form.

How have you planned this assessment? Summarise what consideration you have given to the timing of your assessment – you may need to visit more than once, at different times of the day or at different venues. The person’s communication needs – verbal, non- verbal, is a translator needed? Will photographs, cue cards etc be helpful and if so are they available? The involvement of others in the assessment – professionals, family, friends, advocates etc. The best way to present the relevant information – e.g. without unnecessary complication; supported by written materials if appropriate; on more than one occasion

1 Do you consider the person able to understand the information relevant to the

decision to be made? Summarise how you reached your conclusion by reference to the relevant information and the circumstances under which you discussed it with the person.

Yes No

2 Do you consider the person able to retain the information for long enough to

use it in order to make the decision? Most decisions require a person to be able to retain the information for a short time only. Significant or more difficult decisions may require the person to retain the information over several days. Summarise how you reached your conclusion by reference to the relevant information and the circumstances under which you discussed it with the person.

Yes No

3 Do you consider the person able to use or weigh that information as part of the decision-making process? Was the person able to consider the advantages and disadvantages of possible outcomes? Were they able to adjust their position in the light of new information? Summarise how you reached your conclusion by reference to the relevant information and the circumstances under which you discussed it with the person.

Yes No


4 Do you consider the person able to communicate – verbally or non-verbally – their decision? Summarise how you reached your conclusion with reference to the relevant information and the circumstances under which you discussed it with the person.

Yes No

If you have answered Yes to all of questions 1 - 4 above, then the person is considered, on the balance of probability, to have the capacity to make this particular decision at this time.

If you have answered No to any of questions 1 – 4 above, then you have found that the person does not have the capacity to make this particular decision at this time.

Outcome of assessment Select the relevant statement (Tick) I do not believe that the person has the capacity to make this particular decision at this particular time.

Unless there is a valid and applicable advance decision or another person has the authority to make this decision - for example a Lasting Power of Attorney or a Court Appointed Deputy - a decision will now be made following the best interests process (use form MCA2).

Or (Tick) I believe that this person has the capacity to make this particular decision at this particular time. The decision that the person has made is recorded below

Details of those consulted/ involved in this assessment Name Role/Relationship Views

Signature of assessor: Date: Name and Job Title: Contact Details: THIS ASSESSMENT IS VALID FOR THE DECISION INDICATED AT THE TIME OF COMPLETION. CAPACITY MAY IMPROVE, PARTICULARLY WITH THE PROVISION OF POSITIVE SUPPORT, AND THIS WOULD THEN REQUIRE A REASSESSMENT


Appendix 4 Form MCA2

Record of actions taken to make a best interests decision under the Mental Capacity Act 2005

For further guidance, please refer to Chapter 5 of the Mental Capacity Act 2005 Code of Practice. Name of person to whom this best interests decision relates Date of Birth

Assessment start date This process must adhere to the principles of the Mental Capacity Act:-

An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action

What is the decision that needs to be made? Be specific, relate it to the person and try to capture it in one sentence

Has the Person been determined as lacking capacity to make this particular decision at this time? Yes

Give details of when the capacity assessment was completed and where it is recorded

No You cannot proceed to make a best interests decision. Complete form MCA1 to determine whether the person has capacity to make this decision.

To the best of your knowledge, are any of the following in place? Yes/No

Advanced Decision to Refuse Treatment {ADRT}

If a capacitous person over 18 has made a valid and applicable decision to refuse treatment, it cannot be overruled. Doubts about validity must be determined by the Court of Protection

Registered Lasting Power of Attorney – Personal Welfare

Unless restrictions or conditions have been added, the attorney/s can make decisions in the person’s best interests about residence, contact, day-to-day care, medical treatment, care packages, social or educational activities, correspondence and papers, access to personal information and complaints.

Registered Enduring Power of Attorney or Registered Lasting Power of Attorney – Property and Affairs

Unless specifically restricted, the attorney can make decisions in the person’s best interests about buying/selling property, banking, benefits, pensions, rebates, income, inheritance, tax, mortgages, rent, household expenses, insurance, maintenance of property, investments, repaying loans, payment of medical or care fees, purchasing vehicles, equipment or any other help the person needs.

Court Appointed Deputy Check whether the Deputy has been appointed to manage

Property and Affairs or Personal Welfare and what remit/restrictions the Court has placed on their deputyship


N.B. Do not proceed any further with this best interests decision if you have identified that it comes under the remit of one of the above. However, if you believe that an attorney/ deputy is not acting in the person’s best interests, you should raise your concerns as a Safeguarding alert and with the Office of the Public Guardian.

Who is making this Best Interests Decision? The Decision Maker is the person or body who will take action following the decision. There may be different views, and it is the responsibility of the Decision Maker to listen and weigh up all of these views before reaching the Best Interests Decision. Decision Maker’s Name Role

Where practical and appropriate you should consult: anyone previously named by the person as a person to be consulted in decisions of this kind, anyone engaged in caring for the person, close relatives, friends or others who take an interests in the person’s welfare, any attorney or Court appointed deputy and any other relevant person IMCA Instruction If the incapacitated person has no friends or family who it would be appropriate to consult as part of the decision making process, there are certain situations in which the Decision Maker must or may need to instruct an IMCA Is this decision about Yes/No

Serious medical treatment providing, withholding or stopping

If yes, you have a statutory duty to instruct an IMCA and must do so.

Accommodation A Local Authority or NHS organisation proposes to place the person in accommodation - or move them to different accommodation - for a period likely to exceed 8 weeks (or which has turned out to be for more than 8 weeks) or An NHS organisation proposes to place the person in hospital – or move them to another hospital - for longer than 28 days (or a period which has turned out to be more than 28 days)

If yes, you have a statutory duty to instruct an IMCA and must do so.

A care review Relating to decisions about accommodation

If yes, you should instruct an IMCA if you believe it will be of benefit to the person

Safeguarding adults proceedings the incapacitated person may be the adult at risk or the alleged perpetrator

If yes, you should instruct an IMCA if you believe it will be of benefit to the person even if they have family or friends

If you have answered yes to any of the statements above, but do not intend to instruct an IMCA, please give your reasons below e.g. the person has an appropriate friend/family member to support them, action needs to be taken urgently and cannot be delayed etc.


List the options that are being considered (add more boxes as needed) Option

1

Definite advantages e.g. benefits for the person; less restrictive

Definite disadvantages e.g. risks, cost, effect on relationships, restrictive

Possible advantages Possible disadvantages

Option

2




Option

3




The boxes below capture the checklist of 7 factors that the Decision Maker must always consider when reaching a Best Interests Decision, as set out in Section 4 of the Mental Capacity Act 2005. No one factor will always be more important than another and the weight to be given to each will differ depending on the individual circumstances of the case. 1 Show equal consideration and non discrimination Confirm that you have not made assumptions about what is in the person’s best interests purely on the basis of their age, appearance, condition or behaviour.


2 Consider all relevant circumstances What would the person be likely to consider if they were making the decision? E.g. beliefs, values, priorities, benefit to a third party

3 Encourage and enable the person’s participation throughout the decision

making process What has been done to encourage the person to take part, or improve their ability to take part?

. 4 Consider whether the person can regain capacity Is there a likelihood of the person regaining capacity? If so, when, and can the decision be delayed?

5 Is the decision about life sustaining treatment? If it is, confirm that your decision is not be motivated by a desire to bring about the person’s death, and demonstrate that you have not made assumptions about the person’s quality of life.

6 Take into account the person’s past and present feelings about this decision What has the person previously expressed verbally, in writing or through their behaviours and habits? What are their beliefs and values (e.g. religious, cultural, moral or political)?

7 Take the views of others into account What are the views of the carer/family/friends? Name & Relationship Summary of views


What are the views of professionals involved in the person’s care? Name & Role Summary of views

If it was not practicable to consult any relevant person(s), state who, what efforts were made to consult them, or why it was decided not to

What are the views of the IMCA if one is involved? Reference the IMCA’s written report, whether you have accepted or rejected their views, and why. Name & Role Summary of views

Are there any areas of disagreement? is important to capture and consider opposing views, however, the Decision Maker alone is responsible for making the decision, and does not need universal agreement. If there is strong disagreement, seek advice from the MCA Coordinator or your legal rep.

What is the decision you have reached in the person’s Best Interests? State clearly the decision and explain your rationale for reaching it reference to the 7 factors and the views of the relevant persons you have consulted,

Signature of Decision Maker: Date: Date decision will be reviewed:

deprivation of liberty safeguards policy

Documents