the deprivation of liberty safeguards amendments to the mental capacity act 2005
TRANSCRIPT
THE DEPRIVATION OF LIBERTY SAFEGUARDS
Amendments to the Mental Capacity Act 2005
Deprivation of Liberty and the Mental Capacity Act
• The Deprivation of Liberty safeguards are part of the Mental Capacity Act
• They amend the Mental Capacity Act however…• Care and treatment must still adhere to the Mental
Capacity Act• The Safeguards provide legal authority but only to
detain the individual subject to certain strict criteria
Deprivation of Liberty Safeguards – care for those without capacity
• Will affect 1.those lacking capacity to give informed consent to
their care +2. Where the nature of the care could be depriving
them of their liberty +3. Must be over 18+4. Cared for in a hospital or care home (Care
Standards Act)
Deprivation of Liberty Safeguards
• Deprivation of liberty must be authorised via a legal procedure
• Assessment must establish eligibility criteria and best interest proportionate + no other viable alternative – 6 areas of assessment
• Assessor can attach conditions to the authorisation including time period of authorisation
• Maximum period of authorisation is 12mths• Person has right of appeal and a representative
appointed
What is Deprivation of liberty?
• Arises from the “Bournewood” case – a ECtHR case – Article 5.
• HL had been deprived of his liberty unlawfully, because of a lack of a legal procedure which offered sufficient safeguards against arbitrary detention (5(1)) and speedy access to court (5 (4)) – Bournewood Trust were found to have exercised complete and effective control.
• “The distinction between deprivation of and restriction upon liberty is merely one of degree or intensity and not one of nature or substance”
• Therefore no definition• A serious matter to be used sparingly and avoided wherever
possible
What is Deprivation of Liberty (cont)
• Draft Code of Practice refers to a need to consider the combined impact of all restrictions – degree and intensity rather than nature or substance
• The person is not or would not be allowed to leave the facility
• no or little choice about their life within the care home or hospital
• Prevented from maintaining contact with the outside world• Restraint may indicate the persons wishes being over
ridden and need to consider if liberty is being deprived
D) Best interest assessor recommends
period
Age assessment
A) Hospital or care home managers identify those at risk of deprivation of liberty & request authorisation from
supervisory body
B) Assessment commissioned by supervisory
body. IMCA appointed for unbefriended
C) Request for authorisation
declined
Mental health assessment
Mental capacity
assessment
No Refusals assessment
Best interest assessment
Eligibility assessment
Any assessment
says no
All assessments support
authorisation
In an emergency hospital or care
home can issue an urgent
authorisation for 7 days while obtaining
authorisation
F) Authorisation is granted and persons representative
appointed
E) Best interest assessor
recommends person to be appointed as
representative
G) Authorisation implemented by managing
authority
Managing authority requests review
because circumstances change
Authorisation expires and Managing authority
requests further authorisation
H) Review
Person or their representative
appeals to Court of Protection
which has powers to terminate
authorisation or vary conditions
Person or their representative requests
review
AssessorsCarry out assessments
Managing AuthorityHospital or Care Home
Responsible for care and requesting an assessment of deprivation of liberty
Relevant PersonPerson being deprived of liberty
RepresentativeProviding independent support
Family/Friends/CarersConsulted, involved and provided
with all information
Supervisory BodyPCT or LA
Responsible for assessing the need for and authorising deprivation of liberty
IMCA Court of Protection
Responsibilities in Deprivation of Liberty
Age Assessment
• To establish if the relevant person is 18 or over
Anyone deemed to be appropriate
Mental Capacity Assessment
• Purpose – To establish whether the relevant person lacks capacity to consent to the arrangements proposed for their care or treatment
Anyone eligible to act as a Mental Health Assessor or Best Interests Assessor
No Refusals Assessment
• Purpose – To establish whether an authorisation for DoL would conflict with other existing authority for decision making for that person
Anybody that the Supervisory Body considers has the skills and experience to perform the role
Eligibility Assessment
• Purpose – to establish whether the relevant person should be covered by the MHA 1983 of DoL under MCA 2005
Best Interests Assessor
Someone familiar with the Mental Health Act 1983
Mental Health Assessment• Purpose – Is the relevant person suffering from a
mental disorder within the meaning of the MHA 1983
Doctor
Approved under Section 12 of MHA 1983 or Registered medical practitioner who has special experience in diagnosis and treatment of mental disorder
Completed appropriate MCA 2005 mental health assessor training
Doctors cannot be Best Interests Assessors
Best Interests Assessment• Purpose – to establish firstly whether DoL is
occurring or is going to occur and if so whether it is in their best interests, it necessary to prevent harm to themselves and the DoL is proportionate to the likelihood and seriousness of the harm
AMHP; Social Worker, Nurse, Occupational Therapist, Psychologist:
With skills and experience required by the regulations
Has the required skills for the role
Has completed specific DoL Best Interests Assessor training
Suitability considering the circumstances of the case
Advocacy and deprivation of liberty
• IMCA – is appointed where the person being assessed has no family or friends to consult with.
• IMCA – Where family/friends are available and an IMCA is not instructed at point of assessment, where the appointed representative is an unpaid person, they may refer to an IMCA – issue specific
Person in need of care to prevent harm to themselves
Is it necessary to deprive them of their liberty?
Apply to SB for standard authorisation
Is application appropriate?
Conduct assessments
Do all assessments support DoL?
Grant authorisation
Monitor and Review DoL
Appoint a representative
Grant urgent authorisation
Reject application
Reject application
Yes
No
Now?
No
Yes
Yes
DoL Process
Purpose: To prevent unlawful deprivation of liberty
Summary responsibilities – Supervisory Bodies
• Receive application for Deprivation of Liberty
• Ensure communication between bodies
• Determine if request is appropriate - assess
• Appoint to the roles - assessors and IMCA
• Obtain written assessments to ensure relevant criteria are met
• Grant authorisation for specific period or decline based on the assessment outcomes
• Attach conditions where appropriate
• Communicate decision and support alternative care planning where relevant
• Appoint representative• Inform in writing relevant parties
of authorisation & appeals procedure
• Review Deprivation of Liberty authorisation
• End the authorisation• Governance of duty
Summary responsibilities – Managing Authorities
• Identify and minimise Deprivation of Liberty
• Determine if application for DoL is required in advance
• Grant urgent authorisation where required
• Submit application for DoL• Ensure communication between
relevant bodies • Support assessment – access to
information, consideration of appropriate representative
• Provide alternative care where authorisation is not granted
• Comply with any conditions attached to authorisation
• Monitor and review DoL authorisation including the representatives invovlement
• End deprivation of liberty• Inform relevant parties of
authorisation & appeals procedure• Review Deprivation of Liberty
authorisation• End the authorisation• Governance/recording
Further information
• www.eastmidlands.csip.nhs.uk
• www.justice.gov.uk
• www.dh.gov.uk