Deprivation of liberty in housing
settings
March 2015
Sue Garwood
Housing LIN dementia lead
Plan for this session
• To explain and explore:
– new definition of deprivation of liberty
– some of the issues and implications for the
housing sector – not residential care
– developments and issues around authorising
deprivation of liberty in housing settings
• Case study and discussion
• Caveats
– “A little knowledge.....” - I am not a lawyer!
– Even lawyers and judges can’t agree
ECHR and Mental Capacity Act
• It is against the law for the state to deprive a person of
their liberty for the purpose of care or treatment if they
lack the capacity to agree, without fulfilling certain
conditions. It must be:
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Necessary
In the person’s best interests
Proportionate to the level of harm being prevented
The least restrictive option possible
• The Mental Capacity Act prohibits anyone from depriving
someone of their liberty without capacitated consent
• MCA allows people to do certain things without person’s
capacitated consent and be immune from prosecution if
the above conditions apply
• This does not apply to deprivation of liberty without
proper authorisation.
Authorisation
• In hospitals and care homes a mechanism
called the Deprivation of Liberty
Safeguards (DoLS) applies. It involves 6
different “assessments”:
Age; no refusals; mental capacity; mental
health; eligibility; best interests
• In housing settings authorisation is needed
from the Court of Protection - at present
• Without authorisation, false imprisonment,
kidnap or whatever
New definition of deprivation of liberty
• Supreme Court judgement in March 2014:
• Does person have capacity to consent to
arrangements? If not
– Is person subject to continuous supervision
and control? (Does not have to be in line of
sight) AND
– Is the person free to leave (even if s/he shows
no wish to do so)?
– Is confinement responsibility of the state?
Reduced threshold means many more people,
including in housing settings, now fall into
definition of deprivation of liberty
Definition open to interpretation
1. Continuous supervision and control – where do you
draw the line?
2. Freedom to leave – on a permanent basis or on a dayto-day basis?
3. State confinement – issue with self-funders
–
fairly clear if local authority arranges or funds the care (s73 of
Care Act), but what about taking part in allocation panel?
Or is that irrelevant ?
– Lawyer’s view that housing associations are public bodies and
therefore Article 5 of ECHR applies to them; another that it’s
enough for local authority to know about the situation
4. Incapacity to consent to what to trigger a deprivation of
liberty in supported housing?
–
Signing tenancy (LPA can); Making the move at all (?); Making
the move with a view to being under continuous supervision
and control (definitely); losing capacity once in situ (yes)
Nevertheless it is clear to me that...
• It is unlawful to deprive someone of their liberty
even in their best interests without their consent
or due authorisation
• The threshold for what is deemed to be
deprivation of liberty has been lowered
• Despite conceptual incompatibility between
housing rights and depriving someone of liberty,
it can be lawful for someone to be deprived of
their liberty within their own home
• Housing providers have responsibilities under
the MCA (principles and test of capacity) and
Care Act (safeguarding) amongst others
So..........
Implications for housing providers
• Housing providers need to see if this appears to apply to
any of their residents – it is quite likely
• If it does:
– It is sensible to err on the side of caution
– You should check that it’s been authorised & if it hasn’t
notify authority in writing
– Can you work with others to safely reduce the level of
restrictions so DoL is not necessary?
– Be prepared to challenge – both capacity assessment and
whether or not it constitutes DoL
– Suggest appointing IMCA or other independent advocate
– Keep accurate records, not only of what you do, but also
why
What impact are you seeing?
• Greater scrutiny by CQC?
• Local authorities more risk averse both in
referring people to HWC and enabling
them to stay when DoL needed?
• Different responses from different LAs
• Confusion over things like progressive
privacy doors, “wander-guard” monitoring
and access/entry door alarms
E-mail me with examples: dementia@housinglin.org.uk
Extending DoLs to housing settings
• Recommended by House of Lords
• Law Commission investigating along with whole DoLs
mechanism
• Will be going out to consultation in the summer
• Housing representatives met with Law Commission to
discuss issues and raise their understanding of housing
settings
• NHF and Law Society briefings pending, but individual
organisations should get own legal advice
• In months up to consultation, the sector needs to
– be aware of new definition
– think about the issues – e.g. local authority as poacher and
gamekeeper – is the motivation always in individual’s best
interests or is HWC currently a cheaper option?
The Law Commission asks:
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Should the new scheme apply to supported
living and domestic settings?
How effective are housing workers at spotting
deprivation of liberty?
How responsive are supervisory bodies to
referrals and conditions?
Is oversight needed over other forms of
restrictive care?
What are the issues around tenancies or
leases and incapacity, & how are landlords
dealing with them?
“Philosophical” issues
• Clear difference between someone who had capacity to
agree to the move when they made it and later needs to
be deprived of their liberty, and someone who lacks
capacity to agree at the point of moving in
• If people who move in need that level of supervision and
control, is there a risk of undermining the distinctive
features and benefits of housing settings?
– Self-contained property with control over who enters
– Ethos of supporting independent living
– Freedom to come and go
• If incapacity to exercise these rights and control, what
remains that person can actually derive benefit from
– that makes it better for him/her than a care home?
– that compensates for the lower level of regulator scrutiny?
Concerns
• Has the decision to move someone in to a HWC
setting genuinely been based on what is in their
best interests? – must be individually decided
• Is that level of supervision and control routinely
provided in the housing setting – if so, is it in
reality an unregulated care home?
– OR alternatively
• Is individual not actually receiving the quality
and level of care and supervision they need?
• Is there a risk of registration as a care home with
all the attendant repercussions, e.g. loss of
funding?
Best interests?
• Is the way care is being commissioned and delivered in
HWC settings capable of providing the quality, flexibility
and responsiveness of care needed in this situation?
• How can commissioners and providers...
– enable people who will genuinely benefit to move in to HWC
settings
– and also to remain there if they have lost capacity to agree to
restrictions/DoL when it is genuinely in their best interests
while at the same time
– ensuring safeguards are in place so HWC is only used when it is
in person’s best interest?
So
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Any questions?
Are you aware of the new definition?
Has it had any impact on you? Let us know
What concerns do you have?
What could you do now to minimise the restrictions
placed on occupants who lack the capacity to consent?
• Does supported housing retain key benefits for
incapacitated individuals without becoming a care home
by another name?
• What model of authorisation could work for housing
settings?
Mr Smith
• Has lived in HWC scheme for a while
• Has dementia - increasingly distressed
and confused
• Has over 10 hours care and support p.d.
• Can’t work the progressive privacy doors
so bangs or shouts to gain entry
• Has been stopped from going out of the
scheme
• Housing provider notified LA who said not
DoL
Information sources
• CQC briefing
http://www.cqc.org.uk/service-providers/registered-services/guidancemeeting-standards/how-mental-capacity-act-2005-affect
• The Right to Freedom: Joanna Burton
http://www.insidehousing.co.uk/home/blogs/the-right-tofreedom/7006274.article
• Deprivation of liberty in Supported Housing: Sue
Garwood; Law Commission meeting notes
http://www.housinglin.org.uk/pagefinder.cfm?cid=9290
• 39 Essex St MCA newsletters
http://www.39essex.com/resources-and-training/mental-capacity-law/
Thank you!
C/o EAC
3rd Floor, 89 Albert Embankment
London
SE1 7TP
email: info@housinglin.org.uk
tel: 020 7820 8077
website: www.housinglin.org.uk
Twitter: @HousingLIN