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Deprivation of Liberty Training For Care Providers

Deprivation of Liberty Training For Care Providers. Gary Underhill spearmanconsultancy@gmail.com 07933 393 885. Deprivation of liberty – Background.

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Deprivation of Liberty Training For Care Providers

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  1. Deprivation of Liberty Training For Care Providers Gary Underhill spearmanconsultancy@gmail.com 07933 393 885 Spearman Consultancy 21-5-2014

  2. Deprivation of liberty – Background • Art 5(1) ECHR Everyone has the right to liberty. No (person of unsound mind) shall be deprived of liberty without a procedure prescribed by law • Art 5 (4) Everyone deprived of their liberty shall be entitled to take proceedings to quickly decide the lawfulness of the detention • Bournewood case - ECJ found UK to be non compliant with Art 5 hence DoL s/guards Spearman Consultancy 21-5-2014

  3. When is there a deprivation? • No statutory definition “references to DOL” in the Act have the same meaning as in Art 5 • Therefore the definition is evolving and practitioners must look at case law of both European & UK courts Spearman Consultancy 21-5-2014

  4. Lining up your ducks Subjective Objective State Responsibility Spearman Consultancy 21-5-2014

  5. Weighing deprivation Objective A Multi-factorial Approach Look at P’s whole situation & context Confinement Objections or compliance Extent of control Carers – are they refused contact, discharge? Relative normality of life Where living Signs of normality Purpose of the restrictions Whether P has somewhere else they could go Spearman Consultancy 21-5-2014

  6. An easier way? • Objective • Relevant comparator • But subjective & no consistency • Means incapacitated people have less rights Spearman Consultancy 21-5-2014

  7. The Acid Test Supreme Court majority discovered in the case law that there was indeed a line of reasoning or litmus test running through the jurisprudence: Continuous Supervision & Control & Not free to leave Spearman Consultancy 21-5-2014

  8. Reasoning • Universality of Human Rights - so definition of deprivation not related to capacity or disability • Issue of DoL is separate to that of BI (instead of a view on BI affecting whether restrictions are DoL) • No longer relevant: • Presence or absence of objections • Relevant normality of placement • Reason or purpose of placement • Relevant comparator is a capacitated person of same age Spearman Consultancy 21-5-2014

  9. Debates about interpretation • Concrete situation still relevant, but now some clear objective guidance rather than a lucky dip! • CS+C – commonalities from P, Mig & Meg 24/7 • Not being allowed out without supervision • Control over contact; Control over activities • Where does the sub 24/7 care DoL lie? • Not free to leave • Likely means freedom to leave permanently • Is frequency away from care setting relevant? Spearman Consultancy 21-5-2014

  10. Some Implications • Lots more DoLS cases especially 39D • Dementia Care homes • ITU patients • More sectioned patients • Residence requirements NFTL e.g. g/ship • Supported Living placements • P supported in own homes Spearman Consultancy 21-5-2014

  11. Finally • If in doubt – apply for the safeguards • Watch for forthcoming guidance Spearman Consultancy 21-5-2014

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