Best interests decision-making, the Bournewood Gap and Deprivation of Liberty

1. Best interests decision-making, the Bournewood Gap and Deprivation of Liberty Belinda Schwehr www.careandhealthlaw.com 01252 725890 belinda@careandhealthlaw.com

2. Today’s agenda An overview of the implications for everyone concerned When will it be lawful to deprive people of their liberty? What deprivation of liberty is - and what it is not… What assessments will need to be done to ensure deprivation of liberty is lawful? Impact on ordinary care management, planning, commissioning and monitoring The role of the relatives and post-holders in decision-making for DoL situations What should we be doing about keeping people safe in the meantime?

3. Why it really matters… • The paperwork and the staffing implications, if we don’t think carefully and strategically – 6 assessments within 14 days, 2-3 staff per person • The Surrey case – making many more people likely to be covered by the provisions than the government thought • The reality of supported living – 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 NOW for those in care homes • The fact that ‘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. • Ultimately, the inability of the Court of Protection to tell a carer what to do. • Public sector Deputies may owe duties as employees of the supervisory authority, public law duties as public officers with public functions, and private law duties as fiduciaries for those whom they represent.

4. Detention under MCA 2005 The MHA 2007 amends the MCA to allow for lawful deprivation of liberty where it is: • Necessary for life-sustaining treatment or the doing of a vital act • The deprivation gives effect to a Court of Protection decision • Or is authorised under the new Bournewood procedure Bournewood Detention covers: • Patients over 18, suffering from mental disorder, who are incapacitated, where their hospital or registered residential regime may amount to deprivation of liberty, but where they are not non-compliant….

5. 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 the person is incapacitated but non-compliant, we can treat the person, using restraint, etc, if we dare, under the MCA, but we cannot deprive him of his liberty, in the context of treatment for a mental disorder or keeping him in a hospital, because the MHA provides for the detention of people whose non-compliance warrants detention. • 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. • If the person is in their own home or in assisted living, the safeguards don’t apply and an application to court has to be made, or perhaps private guardianship as amended, taken out by a deputy, might work; • 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 be used – that means sectioning or guardianship. • If the person is already in MHA detention or guardianship, use of the MCA DoL safeguards is excluded

6. DE and JE v Surrey County Council Facts: • The supposedly incapacitated person’s wife brought declaratory relief proceedings against a County Council for keeping her husband in a care home for 9 months before the action. • Man repeatedly asked to go home and his wife insisted he was there against his will. • Couple was told that the police would be called if an attempt was made to take the man home • No perimeter security and man could leave at any time by operating a push pad but nonetheless he was de facto deprived of his liberty • Wife and Official Solicitor joined in bringing proceedings against Surrey CC Result: • The key issue is whether the person is free to leave • The distinction between deprivation of and a restriction upon liberty is one of degree or intensity and not one of nature and substance • In this case the man was deprived of his liberty • Misrepresenting one’s legal powers can be as bad as locking someone up Lesson: Assess for capacity and document best interests, and don’t wait to be sued – go to Court and ask first, if you really don’t want to provide care at home with 24 hour supervision….

7. Re PS (An Adult) (2007) – The Sunderland Case Facts : • Case involved an elderly lady born in 1925 who it was subsequently found lacked capacity and suffered from physical ill health • Admitted to hospital on 22 January 2007. Ready for discharge by 7 February 2007. • Crisis emerged when her daughter informed the hospital that she was intending to discharge her mother into her own care rather than that of a residential care and elderly mentally infirm unit where elderly lady had lived since July 2006 which had been identified as being suitable for meeting her needs. Daughter asked hospital not to tell the LA of what she was planning. Issues : • Can the court make an order preventing the elderly woman’s discharge from the care of the treatment unit preferred by the LA • Can the court appoint a receiver under the Supreme Court Act to prevent the daughter from dissipating her mother’s savings and pension rather than require the LA to make an application under the Mental Health Act 1983 Results: • A judge exercising the inherent jurisdiction of the court has power to direct that the adult shall be placed at and remain in a specified institution such as a hospital, residential unit, care home or secure unit. The court is public authority for this purpose and any exercise of inherent jurisdiction must be compatible with Art 5. Any order must observe the Convention principles of necessity and proportionality to be lawful • There is no reason why the mere existence of an available remedy under Part VII of the MHA 1983 should preclude the exercise of the Court’s other jurisdictions in an appropriate case. What does this mean for the relationship between deputyship and receivership under the SCA?

8. Factors which amounted to deprivation of liberty in previous cases • Restraint was used, including sedation, to admit a person who was resisting • Professionals exercised complete control over assessments, treatments, contacts and residence • A person would be prevented from leaving if they made a meaningful attempt to do so • A request by carers for the person to be discharged from their care was refused • A person was unable to maintain social contacts because of restrictions placed on access to other people • A person lost autonomy because they were under continuous supervision and control

9. Factors the court may deem relevant when considering whether someone is deprived of their liberty or not….. • The person is not allowed to leave the facility • The person has no or very limited choice about their life within the care home or hospital • The person is unable to maintain contact with the world outside the care home or hospital • Restraint is/was used on admission to hospital or care home and the person is not realistically subsequently able to leave

10. The assessment process • An authorisation can only be granted where it is : • In the best interests of the person that they be detained as a resident of the hospital or care home in circumstances which amount to a deprivation of liberty; • Necessary that the person be a patient in the hospital or care home in order to prevent harm to him/herself; and • A proportionate response to the likelihood of him/her suffering harm and the seriousness of that harm

11. Six written assessments • In order to ensure that the deprivation of liberty provisions apply and criteria met, the supervisory body must obtain six written assessments of the relevant person • Age assessment • Mental Health Assessment • Mental Capacity Assessment • Best Interests Assessment • Eligibility Assessment • No refusals Assessment

12. Age assessment • Establish whether the relevant person has reached 18. The legal basis for depriving a person who lacks capacity and is under the age of 18 in a Bournewood type scenario is Section 25 of the Children Act 1989 which meets the requirements of Article 5 of the ECHR, or under the MHA. • Person undertaking this assessment will be anyone deemed appropriate and could be an individual doing other assessments

13. Mental health assessment • This is to confirm that the person has been diagnosed as having a mental disorder within the meaning of the MHA 1983 (as reformed – ie any learning disability counts as a disorder) • This is stricter than the notion of an impairment of or disturbance in the functioning of the mind of brain under the MCA – why, we do not know, but there can only be very few people who count as incapacitated but don’t count as having a mental disorder. • Likely to be undertaken by a doctor approved under Sec 12 MHA 1983 or specialist registered medical practitioner who has completed MCA 2005 mental health assessor training

14. Mental Capacity assessment • The capacity of the person to make a decision about whether they should be accommodated in the relevant hospital or care home will need to be assessed • If they are incapacitated but personally object, then IF they have a mental disorder warranting treatment, they should be MHA’d. If they have a physical problem, they could and should be treated under the MCA. If they have made an advance decision against physical treatment, they can not be treated. If they have made an advance decision against treatment for mental disorder, it can be overridden by using the MHA. • It is likely this assessment will be undertaken by AMHP, professionals such as a doctor, social worker, nurse, occupational therapist or chartered psychologist

15. Best Interests assessment • Involves two stages • Likely to be carried out by approved mental health professional or by other professionals who possess the skills and experience that would enable them to apply for approved mental health professional status • Stage one is to establish whether deprivation of liberty is occurring or likely to occur • Stage two is to assess whether • It is in the best interests of the person to be deprived of liberty • Whether it is necessary for the person to be so deprived in order to prevent harm to him/herself • Whether the detention is a proportionate response to the likelihood of the person suffering harm and the seriousness of that harm • Should state for how long authorisation should be given and any conditions

16. Eligibility assessment • It must be confirmed that person is not already detained under the MHA 1983 or under Guardianship • If the proposed deprivation of liberty in a hospital is wholly or partly for the purpose of treatment for mental disorder, the assessment will have to establish that there is no evidence that the person objects to mental health treatment or admission to hospital – if they do, they must be sectioned, regardless of their capacity. • If the person is unable to state their objection, then wishes, feelings, behaviour, views, beliefs and values should be taken into account. • If assessment concludes the person is not eligible but the best interests assessment concludes that deprivation of liberty is required, it may be appropriate to use MHA 1983 • Likely the Mental Health and Eligibility assessments will be done by the same person where MHA 1983 being considered or Best Interests Assessor

17. No refusals assessment • It must be ascertained whether an authorisation would conflict with a prior or valid refusal on behalf of a person who now lacks capacity to consent. • Likely to be undertaken by anybody supervisory body deems has appropriate skills • A “refusal” includes • A valid advance decision relating to some or all of the treatment that the person would receive if an authorisation was granted; and • A valid decision refusing deprivation of liberty by a Lasting Power of Attorney donee or Court Appointed Deputy

18. The role of the relatives and post-holders in decision-making for DoL situations • Next of Kin: no decision-making status under the MHA or MCA, other than as an obvious consultee for all best interests decision-making • Spouses/cohabitees: they count as close relatives and therefore as consultees for all best interests decision-making – they may be joint bank account holders and therefore able lawfully to spend the person’s money and contract for the person’s benefit, but in his or her own name. • The statutory Nearest Relative under the MHA – no status under the MCA, other than as a consultee – but specific functions and powers under the MHA. • A Guardian – private or public – top dog, as far as the s8 powers of the guardian are concerned – but no special powers under the MCA which would still be relevant to treatment decisions, but not DoL

19. The role of the relatives and post-holders in decision-making for DoL situations • Lasting power of attorney – financial – duty to maintain – primary decision-maker about spending money, in the absence of a safeguarding concern and intervention • Lasting power of attorney – welfare – the primary decision-maker on matters to do with welfare – in the absence of a safeguarding concern – and cannot authorise deprivation of liberty – can refuse it, however • Trustee of a fund left by someone else – fiduciary duty owed to the beneficiary and decision maker on spending money unless challenged by the official solicitor • Deputy – private – the primary decision-maker over whatever has been placed within the deputyship, but not in relation to how others’ public functions should be discharged • Deputy – public sector – potentially the welfare decision-maker AND care planner, commissioner and maybe even the Supervisory Authority for a DoL situation! • IMCA – a consultee / sounding board for all professional people discharging public functions

20. Impact on assessment and care planning • Assessment: staff will have to specifically focus on capacity in relation to wandering and self-harm, in order to assess risk and need properly. In clear-cut DoL cases, the arrangements will have to be timed to fit with a DoL process. • Care planning: you will have to acknowledge, at the planning stage, whether deprivation of liberty is required – you have a duty to plan for appropriate care, and that means reasonably safe care, and 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? They can give notice, but the public sector has a duty of care…. • 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. • Best value for community cases: LAs will need either to fund or provide daytime supervision, or night-sitting, 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… • Abuse cases: relatives may contend that necessity is the reason for imprisoning their loved one and LAs will have to respond, without teeth.

21. 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, is 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 as relevant to whether deprivation of liberty is going on in any given registered setting. • CSCI will 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.

22. What should we be doing about keeping people safe in the meantime? • In care homes: thinking about who wanders and who does not, so that we are not ‘blanket’ managing; asking whether anyone has any objections to the person’s situation; inviting an application to court, if so; asking the LA to bring one, if no-one else will. • Consider the use of guardianship to justify being able to require a person’s return to the care home, and after October, 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.

23. Thank you for listening Further information is available at: • www.careandhealthlaw.com free and chargeable information on the legal framework and an email alert service so that you get to hear of developments. • www.dh.gov.uk/MentalHealth • www.dh.gov.uk/en/Consultations/Liveconsultations/DH_079832: consultation docs on secondary legislation including draft regs. for Approved Clinicians and AMHP, IMHA, hospital and community treatment etc • www.dh.gov.uk/en/Consultations/Closedconsultations/DH_079842Draft Code of Practice • www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4009673: Framework for restrictive physical intervention policy and practice • http://mhact.csip.org.uk: details of the DoH’s implementation programme • www.mhrt.org.uk: MHRT website • www.mhac.org.uk/files/POLICY%20BRIEFING%20issue%2017%20July%202007%20_2_.pdf: MHAC’s policy briefing on the MHA ‘07