Deprivation of Liberty Safeguards – a few thoughts

I’ve written about the Deprivation of Liberty Safeguards (aka DoLs)  and Best Interests Assessments before but the last time I touched on them in detail was a back in 2009 when I looked at some of the initial assessments I had done.

Now, almost two years down the line, there is a slightly better understanding of the process and it is something I’ve been asked specifically about so I thought I’d run through a few thoughts on the issue.

The Deprivation of Liberty Safeguards were introduced as a part of the Mental Capacity Act 2005 and ‘went live’ in April 2009.

They were introduced as the government’s response to a European Court ruling on the HL v Bournewood case. The details are in the link but very very basically, it involved a man who was an informal patient at the Bournewood Hospital and the illegality under the European Convention of Human Rights, to be deprived of his liberty in ‘informally’.

Article 5(4) of the European Convention of Human Rights – now (and since the incident at Bournewood) incorporated into UK law as the Human Rights Act 1998 – states that

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

Article 5 is a limited rather than universal right – meaning that  had HL been held under the Mental Health Act this would not have applied (and in any case, he would have had the right of appeal through the tribunal process). However as an informal patient he had no such right.

The Deprivation of Liberty Safeguards were an attempt to bridge the so-called ‘Bournewood Gap’ so that there was a legal framework which applies to people who are detained without consent and capacity and who are being deprived of their liberty and who are not subject to the Mental Health Act.

The process of identifying a Deprivation of Liberty falls on what is the ‘management authority’. This would be the care home or the hospital. Deprivations of Liberty must be instigated by a ‘public authority’ so this law does not apply to private homes or supported housing.

One of the biggest dilemmas for someone involved in the process is deciphering what a ‘deprivation of liberty’ actually is. There is little guidance and a little case law.

I tend to refer back to the Deprivation of Liberty Safeguards Code of Practice which attempts to give some examples. For me, the important thing to consider (as one of the ‘assessments’ I complete as a Best Interests Assessor involves establishing if a Deprivation of Liberty actually exists) is the difference between a restriction of liberty and a deprivation of liberty – one of which is liable to the legal framework and the other not. Chapter Two of the DoLs Code of Practice is useful in identifying some of the main issues to be aware of but as it emphasises each decision is unique in the way it plays out for that individual.

Incidentally – for those who were asking about the locked doors and keypads to ‘keep residents/patients’ in in residential homes and hospitals – this is dealt with in the Code of Practice. The existence of the locks themselves would not alone be a deprivation of liberty but there may be deprivations due to cumulative effects of ‘full and effective control’ by care staff or nurses on someone’s activities or by the degree and intensity of other co-existing controls.

Jones as well, in his commentary in the Mental Capacity Act Manual gives some examples of differentiation between restrictions and deprivations of liberty. This is something that we frequently discuss when we, as Best Interests Assessors meet and share practice and experience. Two people may not make the same judgement as to whether there is a deprivation or not.

So if the managing authority believes there to be a (or that there will be)  Deprivation of Liberty – they request an authorisation. These can either be urgent or standard. They can allow themselves a few days if they see an immediate deprivation of liberty but they have to apply for a standard authorisation in the meantime which means the full assessments.

The managing authority asks the supervisory body (Local authority for care homes and PCT for hospitals) for an authorisation of the deprivation of liberty. The supervisory body arranges the assessment.

There are six assessments. Usually they are done by two individuals – they have to be done by at least two although more can be involved, I’ve never known it. The reason there have to be two is that the Mental Health Assessment has to be done by a different person to the one who does the Best Interests Assessment. The other assessments are usually done by one or the other of those assessors.

Neither assessment can be done by anyone involved in the care of the individual being assessed – although they can be done by people who are employed by the local authority/PCT etc who has asked fro the assessment.

Age Assessment – is the person over 18?  Seriously, that’s it. I quite like this one. It’s very straightforward. Particularly in older adults services.

No refusals – Advance decisions or decisions made by legal deputies or donees and lodged with the Court of Protection apply to treatment and care decisions under the Mental Capacity Act.  The wishes of the deputy or donee or the individual if they have made an advanced direction, remain valid and would supersede any Deprivation of Liberty order made.  Again, this is usually conducted by the Best Interests Assessor

Mental Capacity Assessment – The Deprivation of Liberty Safeguards only apply to people who lack the capacity to make decisions about their care needs and/or placement of treatment. This would be done in the same way that capacity decisions are made in other areas – starting from the base of an assumption of capacity. The Mental Health Assessor or the Best Interests Assessor can do this.

Mental Health Assessment – Any person that this applies to has to be have some kind of ‘disorder or impairment of the mind’ as defined in Section 1 of the Mental Health Act. The assessor must be a doctor with additional training completed. The assessment must take into account how that person’s mental health may be affected by the proposed deprivation of liberty.

Eligibility Assessment – if someone is subject to detention under the Mental Health Act or may meet the criteria for detention under the Mental Health Act they are not eligible for an authorisation of a deprivation of liberty. This assessment must be completed by a suitably trained doctor (s12 doctor) or an AMHP – because the assessor has to be familiar with the Mental Health Act.

Best Interests Assessment – this has to be carried out by someone who is registered as an AMHP, a social worker, an occupational therapist or a chartered psychologist who has more than two years post-qualifying experience and has undertaken additional training specifically for this purpose. They would be ‘approved’ by the supervisory body on an annual basis.

They must determine whether there is a deprivation of liberty existing and also if it is in that person’s best interest and/or if there is any less restrictive option that could be taken.  It can be a lengthy process and always involves family members, care staff/nursing staff, contacting anyone with any involvement with that person to get significant background information etc.  There are some situations in which an IMCA (Independent Mental Capacity Advocate) has to be employed.

If a decision is made to authorise a deprivation of liberty, the person to whom that refers has a ‘representative’ who would have the right to appeal. The representative is appointed by the supervisory body. Usually it is a relative but if there are no relatives, the supervisory body would employ an IMCA in that role.

Chapter 7 of the DoLs Code of Practice gives guidance about the role of the representative.

For me while understanding it is a protection for someone who may be deprived of their liberty, the actual process is remarkably (although unsurprising clunky). The paperwork (in England, at least) is a horrific mash up of tick boxes that seem to lend themselves to repetitiveness. Assessments I have completed as a Best Interests Assessor are generally very interesting as I quite enjoy the process of trying to find out as much about a person as possible and digging around for information, the forms suck any interest in the process straight out of my every pore.

Personally, I think the whole process could have been better thought through. The ‘review’ and ‘appeal’  are much less accessible than the Mental Health tribunal systems which are in place and in my mind, there is less protection under the DoLs framework when compared to the protections under the Mental Health Act.

Relying on managing authorities (residential and nursing homes and hospitals) to identify there own deprivations of liberty has led to some unusual interpretation of the law. Particularly as they are reluctant to refer as they can feel that there is an implied criticism.

I  have  no doubt whatsoever there are many many of these deprivations of liberty that exist and are not referred.

Usually, you’d think the CQC might pick them up on inspection but the CQC don’t seem to inspect any more.

Has it actually helped practice? I’m not sure.

Generally, I’m a great fan of the Mental Capacity Act but this part of it I have many reservations about. I think it was actually poorly drafted and no-one thought through the practicalities before implementation but it isn’t going anywhere so we might as well deal with it.

For further reading, I’d definitely recommend the

Deprivation of Liberty Safeguards Code of Practice – it’s remarkably easy reading for a government document. And it’s free to download.

Jones Mental Capacity Act Manual – has the text of the Act and some useful commentary.

The Mental Capacity Act 2005  –  A Guide for Practice (actually, I don’t have this book, but I have the previous edition which has been very useful for putting the some more difficult concepts into easier to manage forms – and I’m a great fan of Robert Brown’s books so I would happily recommend it even though I haven’t read it!).

Assessing Best Interests – Part 1

So I’m in the middle of a training course at the moment which will enable me to act as a Best Interests Assessor come April. It is fairly intensive training which, quite honestly, left me shattered at the end of the day – although I have to say – it was much more interesting than I was expecting. The post, therefore, might be a bit more haphazard than usual but I wanted to fill in some random thoughts I had yesterday.

Just to clear up though, the Best Interests Assessor role is a new one that is being created in response to a European Court ruling in HL v Bournewood (2004) which, to cut a long story short, found that Bournewood Hospital had acted illegally in detaining a patient who lacked capacity in an informal manner when he had no way of leaving the hospital. He was, as the judgement say, being deprived of his liberty.

The result of the judgement is that if someone lacks capacity and is not being held in hospital under the Mental Health Act (1983) , they may be being deprived of their liberty.

The so-called ‘Bournewood Gap’ is being papered over by adjustments to the Mental Health Act and the Mental Capacity Act which mean that those who are being deprived of their liberty in a hospital or a care home setting will need to be placed, according to Article 5 of the European Convention of Human Rights (incorporated now, into the Human Rights Act 1998) within a legal procedure that enables this deprivation of liberty and – as became a point of much discussion yesterday – under Article 5 (4).

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

So here we are, having a new procedure in place to assess and, if necessary, through legal process – authorise a deprivation of liberty for up to a year, maximum – of someone who lacks capacity.

IMG_1187 (can a cat be deprived of his liberty?)

There seems to be ongoing consternation about how the actual assessments will be undertaken. One of the benefits of doing the training – such as I am doing – is that there are people there present from a wide variety of local authorities. None seem terribly well prepared (including my own).

There were stories of people hearing about other authorities that were much better (and  much worse) prepared. Some of it is quite frightening really.

One person attending the training was the sole person undertaking this course in the borough that she works in. I wouldn’t want to be in her shoes. There were a couple of people who had recently or were about to retire and were looking for an ongoing income stream which seems particularly canny.

The course I’m attending is particularly for people who are already working as AMHPs so we are all social workers – although Best Interests Assessors can equally by nurses, chartered psychologists or occupational therapists. There are different (and longer) training courses for those who are not practising AMHPs – basically to fill in on the Mental Health Act interfacing that we are already up to date on.

The worrying thing is that the assessments look to be fairly time-consuming. Each assessment will need to be carried out by at least two people – a doctor (for the Mental Health part of the assessment)  and  Best Interests Assessor (for the.. er.. best interests part).

I might come down to more of the details in a future post and as the course progresses.

We make ample use of the Mental Capacity Act (2005) in our team already. My impression is that it is most widely used currently in services that relate to Older People. Certainly the people in these teams (I know, it’s not very modest because I’m including myself) have a better working knowledge of the Act to date. We’ve done lots of training around the Mental Capacity Act and are all fairly used to the new forms of Mental Capacity Assessments and the ways and means of the decision-maker through this process – but there really is no room for complacency because, as I am discovering, there is a whole lot more to learn.

I have to say Bournewood Hospital was cursed once or twice throughout the day.

Ultimately though, safeguards are important – it is just a process that I imagine will need a lot of fine-tuning – probably through case-law, before it is perfected – if it ever is.

Guardianship – Making decisions

From my earlier posts about the possible use of Guardianship and the interrelation with powers under the  Mental Capacity Act in the context of a current decision that needs to be made at work, it seemed that in general, the Mental Capacity Act offers a similar authority to the Mental Health Act.

It allows for some restraint to be applied (Mental Capacity Act 2005 s 6) if it is a proportional response.

So what guidance is there about the differences? I am curious now as to whether I was asked to prepare a Guardianship application because the people doing the asking weren’t perhaps as aware of the scope of the Mental Capacity Act as I had assumed (this is not meant as a disservice it’s just that quite a lot of people are still unsure of the scope of the new legislation).  It seems to be a least restrictive option.

image piccadillywilson at Flickr

I’ll try and sum up so as not to turn this into an essay!

The issue that we need to address is not able compelling A to stay in one place (her residential home – where she has stated that she is happy to stay) but more about how to prevent her from leaving and going to her ex-husband (not necessarily to prevent her from seeing him)  and what can be done to ensure that she returns when she does go.

The Mental Health Act Code of Practice currently (because it changes in November!) says that

21.4 A person absent without leave while under guardianship may be taken into custody by any officer on the staff of the local social services authority, or by any person authorised in writing by the guardian or the local social services authority.

and to me, this is the main difference between the usage of the two acts. There are some (bluntish) teeth to the powers of Guardianship regarding ensuring that someone who leaves their place of residence can return. The Mental Capacity Act allows for some form of restraint to prevent a person from leaving in the first place (assuming it is proportional) but no powers to compel A to return – (I don’t think.. ).

We are needing to look at the powers to bring someone back to a particular place if A does go back to her (potentially abusive) ex-husband.

The principle of maintaining the path of least restrictive practice remains crucial.

Can we honestly imagine that forcibly trying to remove A from her ex-husband’s house would be feasible? It’s a question I did actually ask to which I had a positive response.

What would his response be? Would the legal force be enough to ‘scare’ him into not allowing his ex-wife to enter? In which case, would the appointment of a deputy serve exactly the same purpose if no ‘power’ were needed?

A new Code of Practice has been published which will come into force in November. A quick glance foresees some of the interplay between the Mental Health Act and the Mental Capacity Act and there is an explicit statement 26.12 that the Mental Health Act (namely Guardianship)  should be used where

• there is a particular need to have explicit statutory authority for the patient to be returned to the place where the patient is to live should they go absent;

In this case, the particular need would be the potential abusive situation.

The Mental Capacity Act Code of Practice 13.20 says that

Decision-makers must never consider guardianship as a way to avoid applying the MCA

But I’m not sure that is the case in this situation. Guardianship could be considered if it were the best for A and not as a way of avoiding applying the Mental Capacity Act – indeed, in many ways, the Mental Capacity Act would be favourable.

There is also the issue of potential deprivation of liberties under the Human Rights Act (1998) (Article 5). This will, no doubt, be picked up over the next few months with additional provisions being added to the Mental Health Act – but now, today, I am working in a situation prior to those provisions being enforced.

While the Mental Capacity Act allows for some kind of restraint, it does not seem (to me, anyway, although I am happy to be corrected) there are any powers to return A to her home if she has already left.

So where am I with this? Still looking at the Mental Health Act to be honest. The care coordinator who knows A thinks that the sanctions available to guardians are necessary and that she will respond to them. Sometimes when we know that there is a situation of (potential) abuse and a vulnerable adult, we are obliged to take action at the firmest level.

Would the deputyship be a better case scenario? – possibly in some circumstances – it is definitely worth consideration –  but it looks for the moment that the Guardianship will be favoured. I am taking the two options to the multi-disciplinary meeting though.

Now I need to plough through the local authority procedures – but don’t worry, I won’t share those!