Transcript The Deprivation of Liberty Safeguards

The Deprivation of Liberty
Safeguards
Dr J S Phull
HRA 1998
• HRA took effect in E & W in October 2000
• Made it unlawful for a public authority to act
in a way that it is incompatible with a
convention right
Article 5
• Everyone has the right to liberty and security of
person. No one should be deprived of his liberty
save in the following cases and in accordance
with a procedure prescribed by law… the lawful
detention of… persons of unsound mind (Art.
5(1)(e))
• Everyone who is deprived of his liberty by arrest
or detention shall be entitled to take proceedings
by which the lawfulness of his detention shall be
decided speedily by a court and his release
ordered if the detention is not lawful (Art. 5(4))
Raises several issues
• What is the meaning of “deprivation of liberty.”
• What constitutes “lawful detention” – Winterwerp
(MD, kind/degree, cont detention based on persistence)
• “unsoundness of mind”?
• “procedure prescribed by law”?
• “speedy and effective challenge” – HL no means of
MHRT or NR discharge
• Art. 5 refers to detention not treatment - however
when a patient is entitled to be placed in a
“therapeutic environment” in Aerts v Belgium – prison
wing.
Very Topical
• “Winterbourne View hospital to close after
Panorama abuse allegations Castlebeck, which
ran the Bristol hospital, says all patients will
have been transferred to alternative services
by Friday.” guardian.co.uk, Monday 20 June
2011
Overview
The DoLS is a Legal procedure to enable lawful
detention of a person who is:
1. Over 18 +
2. lacking capacity to consent to the arrangements
for their care +
3. Receiving care where levels of restriction &
restraint are so high that they are being deprived
of their liberty +
4. Within a hospital or registered care home +
5. Where detention is not already authorised under
the Mental health Act
Principles of the MCA 2005
– Assume a person has capacity
– Do not treat people as incapable of making a
decision unless you have tried all you can to help
them.
– Unwise decisions.
– Best interests.
– Least restrictive approach.
Why?
•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)) –
Bournewood Trust were found to have exercised complete and
effective control.
•The legislation is part of the Mental Capacity Act 2005 and
amends the Act to meet the ‘Bournewood Gap’ – April 2009
•Deprivation of Liberty Safeguards provides compliance with the
Human Rights Act by providing legal authority for deprivation of
liberty & an appeals procedure
What is a deprivation of liberty?
• No single definition
• The distinction between restriction or
deprivation of liberty is one of degree and
intensity rather than nature or substance
• Must assess the specific situation of the
individual concerned – whole range of factors
including type, duration, effects and manner
the restrictions/restraints are implemented
What is deprivation of liberty?
All care must be in patients best interest and least restrictive as possible
High restriction
Authorised under section 5 & 6 of the Mental Capacity Act
Cumulative effect of restrictions giving
rise to complete and effective control
Requires
Deprivation of
Liberty
Authorisation
Important factors from case law
Restraint including
sedation to admit an
unwilling person to
hospital or care
home
Unable to
maintain social
contacts
Compete and effective control
for a significant period
Degree and
Intensity across
all restrictions
Lose of autonomy through
continuous supervision and
control
Person would not
be allowed to leave
& families could
not discharge
Staff exercise control over
assessments, treatment
contacts & residence
Code of Practice
• 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
Code of Practice
• 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 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
Authorisation process
Managing Authority
(Hospital/Care Home)
 Decide if it is necessary
to apply for authorisation
from Supervisory Body to
deprive someone of their
liberty in their best
interests
Supervisory Body
(PCT for Hospitals &
LA for care homes)
 Assess each individual
case and provide or refuse
authorisation for DOL as
appropriate
 6 assessment areas ‘requirements’ All must
be met for an
authorisation to be
granted
Managing Authority
 Manage the
authorisation, complying
with the Act and Code of
Practice- continue to
provide least restrictive
care
 Provide alternative
care where
authorisation is not
granted
Supervisory Body
Review cases to determine
if DOL is still necessary
and remove where no
longer appropriate
Timeframes
 Standard authorisation – where
considered Deprivation of
Liberty will be required – 21
days to conclude whole
process.
 A standard authorisation
cannot exceed 12 months.
 Urgent authorisation – where
deprivation of liberty is already
occurring or urgently required.
Hospital/care home grant
themselves an urgent authorisation
whilst applying for a standard
authorisation – 7 days to conclude
whole process
Responsibilities
Managing Authority
Hospital or Care Home
Supervisory Body
Responsible for care and requesting an
assessment of deprivation of liberty
PCT or LA
Responsible for assessing the need
for and authorising deprivation of liberty
Relevant Person
Person being deprived of liberty
Assessors
Family/Friends/Carers
Carry out assessments
Representative
Providing independent support
Consulted, involved and provided
with all information
IMCA
Court of Protection
Assessment overview
•
•
•
•
•
•
•
•
Identification of potential DoL
Application by MA
Acceptance by SB
Assessment process (6 steps) – medical + BIA
Authorisation granted (or not)
Review period agreed
Representative appointed
Authorisation implemented
Hospital or care home managers identify
those at risk of deprivation of liberty &
request authorisation from supervisory
body
Age
assessment
Mental health
assessment
Authorisation expires
and Managing authority
requests further
authorisation
Assessment commissioned by
supervisory body. IMCA
instructed for anyone without
representation
Mental
capacity
assessment
Eligibility
assessment
Best interests
assessment
All assessments
support
authorisation
Any
assessment
says no
Request for
authorisation
declined
No Refusals
assessment
In an emergency
hospital or care
home can issue
an urgent
authorisation for
seven days while
obtaining
authorisation
Best interests assessor recommends
period for which deprivation of liberty
should be authorised
Authorisation is granted and
persons representative
appointed
Best interests
assessor
recommends
person to be
appointed as
representative
Authorisation implemented by
managing authority
Managing authority
requests review
because circumstances
change
Person or their
representative requests
review
Review
Person or their
representative
appeals to Court
of Protection
which has
powers to
terminate
authorisation or
vary conditions
Assessments
•
•
•
•
•
•
1. Mental health
2. Best interests
3. Age
4. No refusals
5. Mental capacity
6. Eligibility
Assessments
1. Age - To establish if the relevant person is 18 or over
Assessed by a Best Interest Assessor
2. Mental Capacity – To establish whether the relevant person lacks
capacity to consent to the arrangements proposed for their care
or treatment
Assessed by anyone eligible to act as a
Mental Health Assessor or Best
Interests Assessor
Assessments
3. No Refusals Assessment
Purpose – To establish whether an
authorisation for DoL would conflict
with other existing authority for
decision making for that person i.e. a
valid and applicable AD or a refusal
by an attorney or deputy
4. Eligibility Assessment
Purpose – to establish whether the
relevant person is subject to the MHAct
1983 or whether they should be
covered by the MHA 1983 instead of a
DoL authorisation
Undertaken by
Best Interest
Assessor
5. Mental health assessment
Purpose – Is the relevant person
suffering from a mental disorder within
the meaning of the MHA 1983 (but
excluding additional criteria for learning
difficulty)
Undertaken by a Doctor who is sec 12 Approved ( MHA 1983 ) or
registered medical practitioner who has 3 yrs special experience in
diagnosis and treatment of mental disorder*
Completed approved MH assessor training
Doctors cannot be Best Interests Assessors
Winterwerp v Netherlands 1979
• Art. 5(1) dol in relation to a person with an
unsound mind:
• There must be objective medical expertise
establishing a true mental disorder
• The mental disorder must be a kind or degree
that justifies detention
• To justify continued detention there must be a
persistence of a mental disorder
6. Best interests assessor
Overall Purpose
–
to firstly establish whether DoL is occurring or is going to occur & if so
whether it is in their best interests, is necessary to prevent harm to
themselves and that the DoL is proportionate to the likelihood and
seriousness of the harm.
Evaluate care plan




To consider less restrictive alternative against likelihood of
harm
Seek the views of anyone involved or interested in the persons
welfare
Involve the relevant person and support them to take part in
the decision
Consider views of the mental health assessor
6. BIA







Decide whether it is in person’s best interests to deprive them of
their liberty
Make recommendation for care where requirement is not met.
State how long the authorisation should last
State any necessary conditions associated with DoL
Recommend someone to be appointed as relevant person’s
representative
Produce report, stating reasons for conclusion – submit to SB
Conduct review assessments
The use of the DoLS
• In its first year, the Department of Health
anticipated 21,000 assessments, resulting in 5250
authorizations. The Mental Health Act
Commission estimated 48,000 in the first year.
• Only one-third of the applications (c. 7000)
expected by the Department of Health (DH) have
been made, but some areas have seen much
more than double the DH estimate, suggesting
that the benchmark itself might have been set
very low in some cases.
Possible Explanation
• There may be a number of reasons for this:
• This could represent a reluctance of care homes to invite external
scrutiny or to accept the negative implications that they are
depriving someone of their liberty;
• The MA may have concerns over the financial implications of a DoLS
authorization;
• There may be a lack of awareness about the DoLS by professionals
within the MA
• The fact that there are such low rates of application appears
inconsistent with the expansive interpretation of deprivation of
liberty in JE and DE (2006), where Munby J stated that deprivation
of liberty occurred when an individual was ‘not free to leave.’*
Vs MHA
• Assessment is different: not S12 dr, no power
to enter, transfer, retrospective, lengthy.
• No aftercare (S.117) arrangement
• No automatic tribunal safeguard
• Does not enforce treatment
• Variable review interval
• Costs for review
• Guardianship(?)
• Physical / mental health treatment
‘Bournewood’
• An autistic man (HL) informally admitted to
hospital due to behavioural disturbance.
• Initially dealt with by High Court (He had been
DoL lawfully + not detained)
• CoA – he had been unlawfully detained
• Then HoL review – overturned the decision
• ECtHR ruled that there was a breech of articles
5(1) and 5(4) – “complete and effective control”
• Led to the formation of the DoLS
Key restrictions
•
•
•
•
•
•
•
•
•
Administration of sedative medications
Conveyance to A+E dept and an inpatient unit
Admission
No contact with his carers
Request for discharge by his carers was denied
HL was not free to leave the hospital
HL was under continuous observation by staff
HL was given treatment without his consent
HL was in hospital for 3 months under common law
doctrine of necessity
DoLS and Bournewood
• HL refused medical treatment and interventions: CT scans
and EEGs (i.e. objected to some of his treatment)
• He would have failed eligibility test of the DoLS, and would
be ineligible for the safeguards.
Case Law
• HL v UK 2005
• JE v DE Surrey 2006 EWHC 3459 (Fam) - crucial
question is whether he is “free to leave” Munby J
• Austin v Metropolitan police 2009 UKHL -Oxford
Circus demonstrators – police using crowd
control measures – not a breech of art 5(1) –
relevance of “purpose”.
• R (ZN) v South West London and St
George's Mental Health NHS Trust (2009)
CO/9457/2009 - the defacto repeated use of
S5(2) on an incapacitated patient was unlawful.
Case Law
• Re GJ (2009) – “primacy given to the Mental
Health Act”
• Re A and C (2010) and Re MIG and MEG
(2010) – family and residential home care
CD case law and Art. 5
• Conditional discharge:
• Re MP (2004) EWHC 2194 - (successful)
challenge to a condition to reside on 24 hr
staffed accommodation and not to leave the
accommodation without an escort.
• Re PH (2002) EWHC 1128 - conditions were
imposed for the benefit of PH rather than for
the protection of the public. PH was to be
escorted whenever he left the hostel.
Issues
•
•
•
•
•
Definition of DoLS
?Tip of the iceberg
Overlap in MHA
Non transferable to another institution
Potential “lost population” – failed eligibility
and 16-17 year olds.
Issues
• Guidance on reviews interval
• Monitoring see Kallert 2007 study
• Court of Protection- costs and reliance on
interim (s.16) court orders.
• Lack of aftercare provisions
• Resource implications
Summary
• Provides a framework for lawful authorisation
of a deprivation of liberty
• A part of the MCA 2005
• The application of DoLS appears to be less
than expected 1/3rd of the predicted number
(48,000)