Deprivation of Liberty and Restrictive Care Packages what
Deprivation of Liberty and Restrictive Care Packages – what do you need to know? An Introduction 26 January 2017
Hannah Taylor | Senior Associate Chair | South West Court of Protection Practitioner Association t: 0370 194 3046 m: 07500047520 e: hannah. taylor@bevanbrittan. com Ruth Atkinson-Wilks | Solicitor t: 0370 194 8931 m: 07876685080 e: Ruth. Atkinson-Wilks@bevanbrittan. com
Overview • • • Deprivation of Liberty in Community Setting: • What is it? • Who is responsible? • What is the right legal framework? Restrictive Care Packages: • When do they interfere with human rights? • Who is responsible? • What is the right legal framework? Workshop
MENTAL CAPACITY ACT 2005
ECHR Two main rights * 1. Article 5 – right to freedom of movement 2. Article 8 – right to personal integrity/autonomy and family life; *for the purposes of the MCA 2005
Article 5 Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: • e. the lawful detention of persons of unsound mind Article 5(1)
Article 8 Everyone has the right to respect for his private and family life, his home and his correspondence. Art. 8(1) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with law and is necessary in a democratic society…for the protection of health or morals or for the protection of the rights and freedoms of others. Art. 8(2)
Human Rights Act 1998 • • Unlawful for a public authority to act in a way which is incompatible with a Convention right (s. 6(1)) Public authority is any person certain of whose functions are functions of a public nature (s. 6(3)(b): • Obvious public authorities – NHS Trust, CCG, Local Authority • Not so obvious – GP, care homes and HOUSING PROVIDERS, SUPPORTED LIVING PROVIDERS, REGISTERED SOCIAL LANDLORDS
Does the placement/package of care interfere with their rights under Article 5?
What does this mean? …. You need a legal framework for depriving someone of their liberty. In England Wales, for adults who require a deprivation of liberty due to their mental disorder, you have the following legal frameworks: 1. MHA (hospital only) 2. MCA - Do. LS/Co. P 3. Inherent Jurisdiction 4. Doctrine of Necessity (very limited circ. – life/death)
How do you identify a Do. L?
Restraint or a deprivation? • • Restraint: an act which is intended to restrain • Necessary to prevent harm to P • Proportionate response to likelihood and seriousness of that harm • Includes use or threat of force s. 6 MCA 2005 Deprivation of liberty: …….
Elements of a Do. L All three of the following must be met: 1. Objective Element – Does the degree and intensity, type, duration, effects and manner amount to a DOL? 2. Subjective Element – Valid consent to the confinement prevents a DOL – must have capacity; 3. State Involvement - Is the State responsible for the confinement? Storck v Germany (2005) 43 EHRR 66 “there must be a confinement for an appreciable period, which is non-consensual, at the behest of the State. ” Mr Justice Mostyn
Restraint vs Do. L in practice Commissioner of Police for the Metropolis v ZH [2013] EWCA Civ 69 • 19 year old man with autism and epilepsy. • Police called to swimming pool to deal with his behaviour. • Police not aware of MCA, relied on doctrine of necessity
Objective Element - the test Supreme Court’s acid test: Whether P is not free to leave and is under continuous supervision and control Relevant factors: Intensity and degree not nature or substance Concrete situation of P Type, duration, effects and manner of implementation Irrelevant factors: P's compliance P's lack of objection Relative normality – comparator test Purpose – a gilded cage is still a cage
Objective Element – Factors to Consider • Is restraint, including sedation, required? However, restraint by itself is not usually a deprivation of liberty; • Do staff exercise complete and effective control over care and movement of the person for a significant period? • Do staff exercise control over assessments, treatment, contact and residence? • Has the State decided that the person will only be cared for in circumstances that it considers appropriate? • • Has the State refused a request for discharge/move by family/carers? • Has the person lost autonomy by being under continuous supervision and control? • Does the person, or his family/carers object to confinement? Consider the behaviour, views, wishes and values; Is the person unable to maintain social contacts because of restrictions imposed?
Subjective Element • It is only a deprivation of liberty if there is no valid consent; • Capacity assessment; • Caution against relying on consent of a Deputy or Attorney; • Parent cannot consent to Do. L on behalf of 1617 yr old; • Parent can consent to a Do. L for a child if in scope of parental responsibility for that child; • Local Authority with parental responsibility cannot consent to a Do. L for a child.
State Imputability • Private care packages in private property? • SRK Case: If state on notice of a private Do. L in a private property, this must be authorised by the Court of Protection. • When on notice? (i) compensation awarded by Civil Court (ii) deputy appointed by Court of Protection. • At present duty to report potential private Do. L to the Local Authority relates to courts, trustees, deputies, attorneys BUT something to be aware of as likely to be further expanded.
Do. L: Housing Associations and Registered Social Landlords Consider action regarding DOL if: • CQC registered • State commissioned package • Safeguarding obligations • Acting as trustee / deputy / attorney
Practical Issues to Consider in Identifying a Do. L • Decisions on residence, care, contact and activities being made by others; • Medication to control behaviour; • High levels of support for many ADLs; • Real-time monitoring – e. g. supervision, CCTV, other assistive technology, door sensors, location devices, movement sensors; • Regular restraint and/or seclusion; • Locked door – P’s inability to open door; • Supervised access to community – esp. where access is limited by staff availability; • Restricted access to rooms e. g. kitchen
Practical Steps to Limit a Do. L • • Ensure decisions are structured and recorded Use good practice for care planning Proper assessment of capacity Consider less restrictive options Engage with and ensure contact with family, carers, friends Employ advocacy services Review regularly Avoid arbitrary restrictions
Legal Framework • Hospital/registered care home = Do. LS Standard Authorisation; • Private home = Court of Protection Application: • Full Application; • Streamline Application: − No dispute
Streamline Process For uncontentious Do. L outside care homes and hospitals: 1. Use Co. P DOL 10 Form; 2. Identify, where possible, a family member/friend willing to fulfil the representative role; 3. Confirm willingness to act as such (witness statement). We have a fixed fee Do. LS Streamline Application service.
Does it interfere with their rights under Article 8?
What might interfere? • • • CCTV Door sensors/alarms Seclusion Physical restraint Covert medication Forced medication Personal/room searches Monitoring correspondence/telephone calls Supervision Regulation of access to the internet Regulation of access to social activities
J Council v GU [2012] EWHC 3531 (COP) Interferences with Article 8 must be in accordance with the law.
What is “law” for Article 8 justification? • • • Statute Regulations Rules of European law Common law – case law Rules of a professional body Policies of or overseen by a public authority
Article 8 Policies • • • Grounded in law; Adequately accessible; Precise, certain and foreseeable; Proportionate; Authorised either by way of: • best interest decision under the MCA; • declaration by the Court of Protection. We have Knowledge Packs for CCTV and Seclusion.
Rule of thumb with Article 8 The more invasive and/or the more frequent the interference, the more likely it is that a detailed policy will be required to regulate that interference and that it will need the declaration of the Court of Protection rather than a normal best interest decision. Cf. Not every case where there is some interference with Article 8 rights will require detailed policies with oversight by a public authority.
Who is responsible? • Organisation undertaking the deprivation of liberty or the interference with Article 8.
Article 5 vs. Article 8 Authorisation • Do. LS Standard Authorisation cannot authorise Article 8 interferences; • Court of Protection Order can authorise Article 8 interference as long as it expressly does so.
WORKSHOP
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