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Deprivation of liberty in housing settings March 2015

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

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Deprivation of liberty in housing settings March 2015

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  1. Deprivation of liberty in housing settings March 2015 Sue Garwood Housing LIN dementia lead

  2. 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

  3. 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: • 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.

  4. 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

  5. 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

  6. Definition open to interpretation • Continuous supervision and control – where do you draw the line? • Freedom to leave – on a permanent basis or on a day-to-day basis? • 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 • 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)

  7. 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..........

  8. 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

  9. 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

  10. 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?

  11. The Law Commission asks: • 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?

  12. “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?

  13. 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?

  14. 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?

  15. So • 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?

  16. 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

  17. Information sources • CQC briefing http://www.cqc.org.uk/service-providers/registered-services/guidance-meeting-standards/how-mental-capacity-act-2005-affect • The Right to Freedom: Joanna Burton http://www.insidehousing.co.uk/home/blogs/the-right-to-freedom/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/

  18. 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

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