The Deprivation of Liberty Safeguards Dr J S

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 Do. LS 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 ECt. HR 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) Ø 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) Ø Assess each individual case and provide or refuse authorisation for DOL as appropriate Ø 6 assessment areas ‘requirements’ All must be met for an authorisation to be granted Managing Authority Ø Manage the authorisation, complying with the Act and Code of Practice- continue to provide least restrictive care Ø 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 Ø Standard authorisation – where considered Deprivation of Liberty will be required – 21 days to conclude whole process. Ø A standard authorisation cannot exceed 12 months. Ø 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 Assessors Person being deprived of liberty 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 Do. L 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 Do. L 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 Do. L 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 Do. L 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 Do. L is proportionate to the likelihood and seriousness of the harm. Evaluate care plan l l 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 l l l l 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 Do. L 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 Do. LS • 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 Do. LS authorization; • There may be a lack of awareness about the Do. LS 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 S 12 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 Do. L lawfully + not detained) • Co. A – he had been unlawfully detained • Then Ho. L review – overturned the decision • ECt. HR ruled that there was a breech of articles 5(1) and 5(4) – “complete and effective control” • Led to the formation of the Do. LS

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

Do. LS 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 Do. LS, 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 S 5(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 Do. LS ? 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 Do. LS appears to be less than expected 1/3 rd of the predicted number (48, 000)