Deprivation of Liberty Safeguards – implications for purchasers and providers Belinda Schwehr Care and Health Law 01252 725890 belinda@careandhealthlaw.com Why we need to get our heads around this topic The paperwork and the staffing implications, if we don’t think carefully and strategically (and in partnership) could sink us – it’s double the mental incapacity care management workload, effectively, for anyone not yet ‘in’ the system. The Surrey case – making many more people likely to be covered by the procedural protective provisions than the government thought The fact that the ‘necessity’ to deprive someone of their liberty, comes down to money, in the end, for staffing – so that it affects all purchasers and providers very particularly, regardless of sector. The possibility that the need to deprive a person of their liberty is an eligibility trigger for free NHS health care Ultimately, the fact that uncertificated DOL will be unlawful, even though that was not the point of the Bournewood case! The reality of life in supported living – it’s completely outside the safeguards, despite the need for it to be inside! The Sunderland case – suggesting that going to court first is what we should be doing right NOW, for those needing to be DoL’d in care homes What is the legislative framework for the safeguards? The legislative provisions can be found in the Mental Capacity Act 2005 They were introduced into that Act by the Mental Health Act 2007 – due in in April 2009 The special addition to the MCA Code of Practice was subject to consultation and the final version is now available So is the final version of the new MHA Code, which needs to be read in conjunction Regulations are now approved and finalised. Implementation networks are being given planning aids Approved training for assessors should be booked People coming within the scope of the Bournewood provisions The safeguards can cover anyone aged 18 or over in England and Wales who meets the relevant criteria They must have a mental disorder (as defined by Sec 1 of the MHA 1983 (it will be as amended by the time in force) ie a disorder or disability of the mind They must lack the capacity to give their consent to the basic plans made for their care and accommodation; and they must, at the same time, be basically acquiescent….yes, acquiescent… If they are capacitatedly objecting, they cannot be treated for mental or physical symptoms under the MCA anyway. The more vehement and coherent a person’s objection, the less likely it is that it is an incapacitated objection. If they are capacitatedly consenting, they are not deprived of their liberty. If incapacitatedly objecting, they can be treated for physical conditions, under best interests, anywhere, and any mental conditions in care homes. If they object so much that more than restraint is required, without that objection becoming a capacitated one, and DOL is necessary, they can be DOL’d. BUT if they meet the critieria for an MHA section, they cannot be DOL’d for treatment for mental conditions in a hospital, unless their attorney or deputy OKs the proposed admission or treatment - in which case they become re-eligible for a DOL anyway, so they don’t need to be admitted under s131. Their attorney cannot authorise deprivation of liberty. So a section 2 or 3 under the MHA is required if the person unavoidably needs to be treated for mental health problems in a hospital, in circumstances where they will not be allowed to leave. For the provisions to be relevant, the person in question must as a matter of fact and law be deprived of their liberty within the meaning of Article 5 of the Convention despite not being subject to formal detention under the MHA 1983 Making sense of this coverage If the person is capacitated on the issue in question, then the MCA can’t apply at all - it would then be a civil law wrong to imprison him or her, without some other specific legal authority. If consenting, then no section or DOL would be needed. If the person is incapacitated but non-compliant, we can treat the person, using restraint, etc, if we dare, under the MCA, but we should not use the safeguards to deprive him of his liberty in a hospital, because the MHA provides specific safeguards for the detention of any people whose non-compliance warrants ‘detention’ in a hospital. If the person is mentally disordered (it is thought that all incapacitated people, other than those who are purely temporarily high or drunk, will fit the new definition of mental disorder) the MHA could then be used – that means sectioning or guardianship. Effectively, the MHA question is not relevant to DoL as such, but it is relevant to whether it is necessary or fairest to use the MHA. Making sense of this coverage If the person is in their own home or in assisted living, the safeguards don’t apply at all; and an application to the court has to be made, or perhaps private guardianship as amended, taken out by eg an LA deputy, might work; If the person is already in MHA detention or guardianship, use of the MCA DoL safeguards to require something inconsistent, is excluded; If the person is under 18, then the position is very complicated and depends on whether mental or physical treatment is involved because of the application of the MHA to all children, the possibility of a s25 Children Act application, and the special rules on capacitated young persons’ refusal of consent to admission to mental hospital. What should we be doing about keeping people safe in the meantime? In care homes and hospitals: thinking about who wanders and who does not, so that we are not ‘blanket’ managing by reference to corridors or condition assumptions; Identifying whether anyone has any objections to the person’s situation; the person or a relative. Inviting an application to court, if so; asking the LA to bring one, if no-one else will. Considering the use of guardianship to justify being able to require a person’s return to the care home, and after November 3rd, their conveyance to a care home. In people’s own homes: recognising that since the MCA was brought in, the discharge of public functions does not authorise actual deprivation of liberty, however great the risk is. So this means that there are some people who cannot be kept in their own homes, unless we go to court. Impact on assessment, care planning, contracting and monitoring Assessment: staff will have to specifically focus on mental in capacity, in relation to wandering and selfharm, in order to assess risk and need properly. In clearcut DoL cases, the arrangements will have to be timed to fit with a DoL ‘urgent’ process. Care planning: LAs and care homes will have to acknowledge, at the planning stage, whether deprivation of liberty is required – you have a duty to plan for and deliver appropriate care, and that means reasonably safe care, yet lawful care. Resource issues: If no certificate is granted, where is the additional expense going to fall – on purchasers, because less restrictive care costs more? Or on providers – because they have to go on caring lawfully, if they are going to continue? Then again, they can give notice, but the public sector has a statutory duty of care….The latest guidance indicates that the cost falls on the purchaser…. Impact on assessment, care planning Performance targets: there will be at least a few incapacitated people for whom you would want to provide care in their own homes, but who will have no-one to keep them safe, and be at risk. You cannot lock them in, or contract to lock them in, or get permission from their relatives (not even an attorney or deputy) to lock them in. NB Personalisation makes no difference. Best value for these community based cases: LAs will need either to fund or provide daytime supervision, or nightsitting, or accept that the person needs to go into a care home, or spend the money going to the Court of Protection for an order covering deprivation of liberty in their own home or within daycare. Or you could organise assistive technology to be provided in their home, which stops short of deprivation of liberty, but enables you to honour your duty of care… ‘Own home’ abuse cases: relatives may contend that necessity is the reason for imprisoning their loved one, and LAs will have to respond, in the context of safeguarding, without any Bournewood process as a framework. How these provisions will affect contracting and monitoring Contracting: commissioners will have to purchase a level of care that involves providers in the deprivation of liberty safeguards. Providers will have to come forward and acknowledge deprivation of liberty even where the purchaser is a private person and does not see why it is anyone else’s business. Providers and commissioners will have to work out whether expenditure on alarms, bleeps, sensors and monitoring equipment, plus the staff to react to the bleeps when they go off, are worth it, in terms of reducing the number of people who would otherwise have to be put through the safeguards. Monitoring: CSCI will have to treat a provider’s attitude to deprivation of liberty as an aspect of fitness for the role; and a home’s equipment and ironmongery as relevant to whether deprivation of liberty is going on, in any given registered setting. CSCI will also also have to address whether regimes in supported living and extra care settings amount to deprivation of liberty, and take that up with the providers if so. Is deprivation of liberty potentially an NHS function? Ie more than what is ancillary or incidental to social care? ...The DH’s 2007 decision support tool says funding should follow these profiles and this pattern: Clear Recommendation in favour of full funding: A level of priority, in one of the four domains that carry it. or A total of two or more incidences of identified severe needs. Potential Eligibility (and ADASS would say ‘shared care’, even if not full funding, on this profile) One domain recorded as severe, together with needs in a number of other areas. A number of domains with high and/or moderate needs. ‘Behaviour’ as a domain, with regard to DoL Challenging behaviour in this domain includes but is not limited to: Aggression, violence, or passive non-aggressive behaviour severe disinhibition intractable noisiness or restlessness resistance to necessary care and treatment (this may therefore include non-concordance and non-compliance, but see note below) severe fluctuations in mental state extreme frustration associated with communication difficulties inappropriate interference with others. Priority “Challenging” behaviour of severity and/or frequency that presents an immediate and serious risk to self and/or others. The risks are so serious that they require access to an urgent and skilled response at all times for safe care. Severe “Challenging” behaviour of severity and/or frequency that poses a significant risk to self and/or others. The risk assessment identifies that the behaviour(s) require(s) a prompt and skilled response that might be outside the range of planned interventions. High “Challenging” behaviour that poses a predictable risk to self or others. The risk assessment indicates that planned interventions are effective in minimising but not always eliminating risks. Compliance is variable but usually responsive to planned interventions. ‘Cognition’ as a domain, in the context of DoL “This may apply, but is not limited to, individuals with learning disability and/or acquired and degenerative disorders which places them at risk of self-harm (including deterioration of health), neglect or exploitation. “ Severe: severe cognitive impairment which may include, in addition to lacking short-term memory, problems with long-term memory or severe disorientation. The individual is unable to assess basic risks, and is dependent on others to anticipate even basic needs and to protect them from harm. High: level of cognitive impairment which is likely to include marked short-term memory issues and maybe disorientation in time and place. The individual has a limited ability to assess basic risks with assistance but finds it extremely difficult to make their own decisions/choices, even with prompting and supervision. Struggling with the question whether the patient is ‘objecting’ 4.15 [avoiding use of the MHA] may be possible even if the provision of treatment unavoidably involves depriving patients of their liberty. Deprivation of liberty for the purposes of [physical] care or treatment in a hospital or care home or mental treatment in a care home can be authorised in a person’s best interests under the deprivation of liberty safeguards in the MCA if the person is aged 18 or over. [ie assuming any attorney/deputy does not refuse DoL] 4.16 If admission to hospital for assessment or treatment for mental disorder is necessary for a patient who lacks capacity to consent to it, an application under the Mental Health Act should be made if: providing appropriate care or treatment for the patient will unavoidably involve depriving them of their liberty and the MCA deprivation of liberty safeguards cannot be used [because the patient is objecting to treatment or admission] NB but one can go back to DOLS if an attorney or deputy consents to those things] Putting this all another way… [non-DoL] treatment in a hospital for a mental disorder CAN be done and/or consented to by a welfare deputy or attorney and if they did say yes to those things, the person – despite their objection would not warrant detention because they would not need treatment in a hospital….they could be admitted informally. But if the proposed treatment in a hospital unavoidably involved DoL, the attorney can’t consent, and the person’s objection means the safeguards can’t apply, so he or she must still be sectioned. Treatment in a care home for a mental condition does not attract the risk of ineligibility for DOLS. The person’s objection is not determinative. The attorney can consent to the treatment, but not to the restraint, but it can still be done in the best interests of the person, and under DOLS if DOL is needed. Struggling with the meaning of objecting to mental health treatment in hospital…. The Code then says “(unless an attorney or deputy validly consents on their behalf to admission or treatment)”. We don’t know - but we think that the authors mean to convey that they think a person could, despite an incapacitated objection, still be admitted informally and treated in mental hospital, on the say so of an attorney, albeit not detained) so that they would not have to be sectioned. The Code Addendum under the MCA confirms that this is the correct interpretation: the words in that Code are “(unless an attorney or deputy, acting within their powers, had consented to the things to which the person is objecting)”. So the person with an attorney need not be sectioned. And if that much had been achieved by way of consent from an attorney, the person could then be DOL’d, via the safeguards, (not via the attorney’s consent to the DOL.) Practitioners might think one would be better off being DOL’d than s131’d in that regard, because of the route to Court to challenge the DOL as opposed to no challenge to s131 admission. Other reasons for sectioning a person rather than using the MCA… 4.21 MHA Code • the patient’s lack of capacity to consent is fluctuating or temporary, and the patient is not expected to consent when they regain capacity. This may be particularly relevant to patients having acute psychotic, manic or depressive episodes; • a degree of restraint needs to be used which is justified by the risk to other people but which is not permissible under the MCA because, exceptionally, it cannot be said to be proportionate to the risk to the patient personally; • there is some other specific identifiable risk that the person might not receive the treatment they need if the MCA is relied on and that either the person or others might potentially suffer harm as a result (I think this is to do with no-one wanting the person in their care unless sectioned) These are all reasons to section, even when only restraint and not DOL is needed… Person-centred reasons for choosing to section a person, rather than merely using the MCA to provide treatment Jones points out that parts I and IV of the Mental Health Act protect patients in significant ways in relation to medical treatment; whereas the MCA concept of best interests means that decision making is unregulated, if no-one challenges it. Again, the Nearest Relative has some protective powers under the MHA, and none under the MCA. The MHA patient has automatic tribunal access and a referral obligation exists even if the right is not exercised; whereas the MCA patient has no guarantee of judicial oversight, unless someone hustles on their behalf. The MHA route gives specific legal authority to convey patients and return absconding patients. MHA patients will get free aftercare; MCA patients will be chargeable after discharge from hospital. Guardianship - its role now and in the future Guardianship is free, and merely an administrative discretionary process (unless the LA needs to displace an objecting nearest relative). Guardianship does not give anyone access to an injunction, backed with a power of arrest. Guardianship cannot be used to deny contact with someone with whom the guardian-ed patient positively chooses to have contact. Guardianship depends on a s12 doctor agreeing that someone has a mental illness or the kind of arrested development linked with seriously irresponsible conduct. Guardianship - its role now and in the future That finding of aggravating elements can be appealed within an appeal from displacement of a nearest relative. The use of powers towards the guardian can only be challenged via judicial review! Guardianship only lasts for 6 months Guardianship provides no procedural rights for the subject of the application (apart from recent changes to allow the person to object about their own nearest relative’s identity – and they will get advocates under the MHA 2007). Guardianship analysed Valid Guardianship is not dependent on proof of incapacity. What one could actually do with or to someone, under it, did always turn on incapacity, because of the common law. Where a guardianed person had capacity, and was clearly physically adamantly opposed to your proposals, guardianship may not have ever been sufficiently clear to justify assertive intervention, and the common law could not have helped. Where the person was acquiescent, although lacking any insight into their situation, the old common law would have meant that a best interests decision could be taken, with necessity as a defence to legal criticism, for actions short of deprivation of liberty, even outside the s8 express powers. Guardianship analysed Guardianship has (properly understood) always given us a means to promote a person’s welfare – an implied statutory power, subject only to judicial review – see Marston 1997 and Re F (2000) for a debate on this issue. Guardianship analysed “True, as the judge below accepted, Section 8 of the 1983 Act, …does not confer upon the guardian any express powers or duties to act in the best interests of the patient. It can be seen in this regard to present a marked contrast, no doubt an intended contrast, with the legislative regime which it replaced. … But it seems to me, as it seemed to Owen J below, implicit in Section 7 of the Act that the guardian is entitled in certain respects to act so as to promote the welfare of the patient. Owen J recognised, as I would too, that the precise extent and consequence of such an implicit duty to act for the welfare of the patient is not clear… Guardianship in the eyes of the court… “I envisage that that may well need clarification at some future date. For example, if there were good reason to suppose that an authority was acting in some totalitarian fashion or was not properly having regard to the interests of its patients, then it seems to me clear that someone would have the standing, would have a sufficient interest to bring the case before the court, so that the matter could be properly investigated and the true extent of the authority's discretion be clarified. “ And now the MCA best interests duty and cloak of legal protection is NOT – for any steps short of deprivation of liberty – in any sense - excluded by the MHA regime. The government’s new finalised MHA Code, on choosing guardianship over the MCA 26.12 …guardianship may still be appropriate in such cases if: • there are other reasons – unconnected to the move to residential care – to think that the patient might benefit from the attention and authority of a guardian; • 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; or • it is thought to be important that decisions about where the patient is to live are placed in the hands of a single person or authority – for example, where there have been long-running or particularly difficult disputes about where the person should live. When not to use guardianship 26.13 However, it will not always be best to use guardianship as the way of deciding where patients who lack capacity to decide for themselves must live. In cases which raise unusual issues, or where guardianship is being considered in the interests of the patient’s welfare and there are finely balanced arguments about where the patient should live, it may be preferable instead to seek a best interests decision from the Court of Protection under the MCA. Belinda’s comment: especially if a tenancy agreement is involved because you cannot use guardianship to force an incapacitated person to take a tenancy!! The government’s view, in the MHA code of practice, on the limitations on guardianship 26.29 The power to take or return patients to the place they are required to live may be used, for example, to discourage them from: • living somewhere the guardian considers unsuitable; • breaking off contact with services; • leaving the area before proper arrangements can be made; or • sleeping rough. But it may not be used to restrict their freedom to come and go so much that they are effectively being detained. 26.30 The power to require patients to reside in a particular place may not be used to require them to live in a situation in which they are deprived of liberty, unless that is authorised separately under the MCA. That authorisation will only be possible if the patient lacks capacity to decide where to live. If deprivation of liberty is authorised under the MCA, the LSSA should consider whether guardianship remains necessary, bearing in mind the guidance earlier in this chapter. ”. More about the pros and cons of guardianship 26.32 …Nor does guardianship prevent an authorisation being granted under the deprivation of liberty safeguards2 in the MCA, if the person needs to be detained in a hospital in their best interests in order to receive care and treatment, so long as it would not be inconsistent with the guardian’s decision about where the patient should live. 26.33 Otherwise, guardianship should not be used to require a patient to reside in a hospital except where it is necessary for a very short time in order to provide shelter while accommodation in the community is being arranged. While the reception of a patient into guardianship does not affect the continued authority of an attorney or deputy appointed under the MCA, such attorneys and deputies will not be able to take decisions about where a person subject to guardianship is to reside, nor take other decisions which conflict with those of a guardian [within their powers]. This is because the guardian’s powers are expressly conferred to the exclusion of all others, under the MH Act) Changes to Guardianship Under the new Act, a person with learning disabilities, whilst mentally disordered, because of the widening of the definition, still won’t be able to ‘qualify’ for guardianship, unless the disability is associated with abnormally aggressive or seriously irresponsible conduct, on his part. But a person can be seriously irresponsible due to their disability, even if they are being so well looked after that nothing is being given a chance to happen. Autism is a disorder in its own right, as well, so the exclusion from guardianship of people with LDs need not apply to ASD sufferers. Under other MHA 2007 changes, a Guardian will have powers to: Convey P to where s/he doesn’t want to go, using force if necessary (s.18(7) and s.137 MHA) To insist they remain at that place (s.8(1)(a)) Return P to that place if they leave without authority, using force if necessary or the help of the police (s.18(4), s.137) Make P see professionals who may consider treatment if the person is incapacitated Take P to a place where they could be given medical treatment under MCA (s.8(1)(b) MHA and s.5 and s.6 MCA). Changes to Guardianship Even if this were to amount to a deprivation of liberty, it would be lawful protective custody: It would be done under ‘a procedure prescribed by law’ (complying with art 5(1) ECHR) s.7 MHA grounds meet substantive and procedural requirements for lawful detention of those of unsound mind: Winterwerp v Netherlands P has access to an MHRT to challenge the lawfulness of the applying the regime to him or her – and an advocate to help, under the new MHA. Choosing between formal guardianship, and reliance on the MCA for certain steps Jones points out that there are good person - centred reasons for using guardianship, when one could either use it OR the MCA best interests power to move a person to another home: The responsible social services authority must provide for visits to patients under guardianship, not less than every three months; and one such visit per year must be by a s12 doctor The nearest relative has protective powers in relation to guardianship, whereas that person has no special role under the MCA. He points out that the specific legal authority given to the authorities to convey patients under guardianship and to return them to their place of required residence are good public body based reasons for using guardianship too! Thanks for listening! Belinda Schwehr Care and Health Law www.careandhealthlaw.com