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Deprivation of Liberty Safeguards Project

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Deprivation of Liberty Safeguards Project

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    1. Deprivation of Liberty Safeguards Project Paul Gantley National Programme Implementation Manager Mental Capacity Act 2005 Paul.Gantley@dh.gsi.gov.uk 020 7972 4431

    3. 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)) Therefore no definition Subsequent cases have found examples where deprivation of liberty was and wasnt judged to have occurred in similar circumstances A serious matter to be used sparingly and avoided wherever possible

    4. What is deprivation of liberty? Draft supplement to the MCA Code of Practice 2.5 The ECtHR and UK courts have determined a number of cases about deprivation of liberty. Their judgments indicate that the following factors can be relevant to identifying whether steps taken involve more than restraint and amount to a deprivation of liberty. It is important to remember that this list is not exclusive; other factors may arise in future in particular cases. Restraint is used, including sedation, to admit a person to an institution where that person is resisting admission. Staff exercise complete and effective control over the care and movement of a person for a significant period. Staff exercise control over assessments, treatment, contacts and residence.

    5. What is deprivation of liberty? Draft supplement to the MCA Code of Practice 2.5 (contd.) A decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate. A request by carers for a person to be discharged to their care is refused. The person is unable to maintain social contacts because of restrictions placed on their access to other people. The person loses autonomy because they are under continuous supervision and control.

    6. How can deprivation of liberty be identified? Draft supplement to the MCA Code of Practice 2.5 All the circumstances of each and every case What measures are being taken in relation to the individual? When are they required? For what period do they endure? What are the effects of the restrictions on the individual? Why are they necessary? What aim do they seek to meet? What are the views of the relevant person, their family or carers? Do any of them object to the measures?

    7. How can deprivation of liberty be identified? Draft supplement to the MCA Code of Practice 2.5 (contd.) How are the restraints or restrictions implemented? Do any of the constraints on the individuals personal freedom go beyond restriction or restraint to the extent that they constitute a deprivation of liberty? Are there any less restrictive options for delivering care or treatment that avoid deprivation of liberty altogether? Does the cumulative effect of all the restrictions imposed on the person amount to a deprivation of liberty, even if individually they would not?

    8. Responsibilities in Deprivation of Liberty

    9. When should it be used and what does it look like?

    11. Some key points The deprivation of liberty safeguards are in addition to and do not replace other safeguards in the MCA Deprivation of liberty is for the purpose of providing treatment or care under MCA it does not authorise it Essential that hospital and care home managers and assessors understand the distinction between deprivation and restriction of liberty Every effort should be made to avoid instituting deprivation of liberty care regimes wherever possible Local authorities, PCTs, Hospitals, Care Homes and other key stakeholder organisations need to work in partnership to deliver DoL safeguards and reduce the numbers referred unnecessarily for assessment

    12. How do DOLS relate to the rest of the MCA? Any action taken under the deprivation of liberty safeguards must be in line with the principles of the Act: A person must be assumed to have capacity unless it is established that he lacks capacity A person is not 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 An act done, or decision made, under this Act or on behalf of a person who lacks capacity must be done, or made, in his 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 persons rights and freedom of action.

    13. Authorisations The MA can give an urgent authorisation for DoL where it believes the need is immediate Should normally only be used in response to sudden unforeseen needs but also may be used in care planning e.g. to avoid delays in transfer for rehabilitation where delay would reduce the likely benefit of rehab Must not exceed 7 days (or 14 in exceptional circumstances) Standard authorisations need to be assessed within 21 days Cannot be applied for more than 28 days in advance

    14. Assessments Assessments have to ensure that all the requirements are met in relation to deprivation of liberty. Regulations will determine who does assessments Doctors have to do MH assessments AMHPs, SWs, OTs, Nurses and psychologists proposed best interests assessors

    15. Monitoring the safeguards Will be inspected by the new health and adult social care regulator; Commission for Social Care Inspection + Healthcare Commission + Mental Health Act Commission Care Quality Commission Will be established during 2008 Will be part of routine inspection / monitoring not unduly burdensome Expected to be fully operational by 2009/10

    16. Implementation Published regulatory impact assessment (RIA) assumes 21,000 people in England and Wales will need an assessment in first year 2009/10 17,000 in care homes / 4,000 in hospital at an average cost of 500 per assessment. Training courses need to be approved by Secretary of State Need to train all those with a formal role Best interests and mental health assessors (who will also assess mental capacity); IMCAs Need to brief those with an admin / managerial role in care homes, hospitals, PCTs and LAs Need to raise awareness of all others affected more indirectly i.e. staff who provide day to day care and treatment but who are not involved in the statutory DOLS process

    17. Implementation issues and structures Timescale Availability of workforce for a possible early peak Level of familiarity with MCA prior to DOLs Need for local health and social care communities to work together to prepare and run the system need for local impact assessments Continuation of MCA Local Implementation Networks (LINs) x 150 for DoLS regional CSIP leads Availability of standard forms

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