Deprivation of liberty in housing settings whats changed

Deprivation of liberty in housing settings: what’s changed December 2014 Sue Garwood Housing LIN Dementia Lead

Plan for this session • Me – To explain new definition of deprivation on liberty and some of the issues for housing – To explain developments and issues around authorising deprivation of liberty in housing settings • Joseph – To briefly outline current Deprivation of Liberty Safeguards (Do. LS) process in care homes – To explain impact of re-definition on LAs – Update on “streamlining” Court of Protection (Co. P) applications • Discussion

European Convention on Human Rights • 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 • Under the Mental Capacity Act, people can continue to do certain things without person’s capacitated consent and be immune from prosecution if the above conditions apply, but this does not apply to deprivation of liberty without proper authorisation.

Authorisation • In hospitals and care homes a mechanism called the Deprivation of Liberty Safeguards (Do. LS) applies. Joseph will briefly outline process. • In housing settings authorisation is needed from the Court of Protection - at present

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

Implications for housing providers • Likely to have such people in your schemes now • Housing providers need to see if this applies to any of their residents • If it does, they should check that it’s been authorised & if it hasn’t notify authority in writing • Housing providers have responsibilities under the Mental Capacity Act and safeguarding responsibilities under the Care Act • Can you work with others to safely reduce the level of restrictions so Do. L is not necessary?

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 Do. L needed? • Different responses from different LAs • Confusion over things like progressive privacy doors, “wander-guard” monitoring and access/entry door alarms

Points needing clarification and issues 1. Which settings? I think it applies in any setting where state has mediated and person is deprived of liberty 2. Meaning of state responsibility – at least arranged or funded by LA (s 73 of Care Act). . . but what about involvement in panel decision in different scenarios*? 3. Does incapacity to agree to a move (as distinct from capacity to sign agreement) automatically trigger deprivation of liberty? 4. Legal responsibility of different people and bodies 5. Any scope for interpretation around definition? e. g. Use of location device? Persuading person to stay in? 6. Is authorisation only needed when making a long-term move, or also – as I had understood – if people are not free to come and go as they please on a day-to-day basis? 7. Recent Rochdale judgement adds to confusion 8. Conceptual incompatibility of rights conferred by “own home” and deprivation of liberty within it

“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?

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?

Extending Do. Ls to housing settings • Recommended by House of Lords • Law Commission investigating along with whole Do. Ls mechanism • Will be going out to consultation in June • Housing LIN and others met with Law Commission to shape and assist consultation and raise their understanding of housing settings • Have asked NHF to get legal advice but individual organisations may need to do so as well • In months up to consultation, the sector needs to – be aware of new definition – seek legal clarification on certain points – think about the issues

Some issues to consider • Local authority’s conflicting agendas – poacher and gamekeeper – is the motivation always in individual’s best interests or is HWC currently a cheaper option? • 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? • Is there a way to. . . – enable people who will genuinely benefit to move in to HWC settings – and also to remain there if they have lost capacity to agree 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?

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?

Information sources • CQC briefing http: //www. cqc. org. uk/service-providers/registered-services/guidancemeeting-standards/how-mental-capacity-act-2005 -affect • The Right to Freedom: Joanna Burton http: //www. insidehousing. co. uk/home/blogs/the-right-tofreedom/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: //39 essex. us 7. listmanage. com/subscribe? u=ce 957 ecbf 2 d 9 a 46 c 94 dfd 1336&id=0 dd 23690 b 2

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