Paul Wilkins Deprivation of Liberty Safeguards Team Manager

1. SAB Conference 2018 -Supporting providers to keep people safeMental Capacity Act Workshop March 2018 • Paul Wilkins • Deprivation of Liberty Safeguards Team Manager

2. Aims or workshop • Identify legal frameworks that we work under • Appreciate what common errors are made when applying the MCA • Define a deprivation of liberty • Update knowledge of relevant case law • Understand local issues relating to DoLS and what to do if a deprivation is occurring in a community setting • Appreciate that there may be a new scheme to replace DoLS

3. Legal foundation for care and treatment– Human Rights Act • Autonomy and self-determination • If we are departing from the HRA we need to find the lawful basis for our actions.

4. My driveway - The process • Complete a ‘Do I need planning permission?’ form • Choose and appoint an accredited contractor • Complete a vehicle crossing form to include kerb request • Pay fee • Get work done on specified date • Council reviews work at end

5. MCA – just like any other law

6. Making decisions for someone – The process • Assume capacity and promote decision making give the correct information • Assess and document capacity when you have cause to • If it is proven that the person lacks capacity a best interest decision can be made • Identify decision maker • Consult with others first • If family object don’t ignore this – it could be a problem.

7. Making a judgment on capacity • Process is not secretive or designed to trick or trip the person up.

8. Beware implied consent and lack of objection • A person experiencing a mental disorder may not object to admission, care or treatment however… • In order to make an informed and valid decision the person must be given all the relevant information and indicate that they have considered it and communicated their decision.

9. Learning from SARs • London Safeguarding Adults Board Report – 18 July 2017 (Suzy Braye and Michael Preston-Shoot). • Analysis of 27 safeguarding adults reviews • Mental capacity was mentioned in 21 of the 27 reports. • What were the main issues?

10. Learning from SARs – Main issues • Missing or poorly-performed capacity assessments • Absence of best interests decision-making • Difficulties practitioners experienced in reaching a “confident or agreed decision” in a mental capacity assessment • The use of advocacy services was a significant area of learning

11. Extracts from CQC Key Lines of Enquiry document Inadequate • “The service does not follow correct procedures when people lack capacity to make decisions about taking medicines and when they may need to be administered without their knowledge or consent. • The service does not ensure that it obtains people’s consent to care and treatment, and staff are unclear about the requirements relating to consent. • Managers do not check or audit consent activity. • The service does not ensure that people’s capacity to make decisions is assessed when needed. • Consent to care and treatment and best interests decisions have not been obtained in line with legislation and guidance, and staff do not understand these requirements.”

12. Article 5 Human Rights Act 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: (a)the lawful detention of a person after conviction by a competent court (b)the lawful arrest or detention of a person for non-compliance with the lawful order of a court (c)the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority (d)the detention of a minor by lawful order for the purpose of educational supervision (e)the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f)the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country

13. 2014 Supreme Court – “Acid test” • A deprivation of liberty is occurring if: • The person is not free to leave (to a place of their choice and never to return) • Under continuous supervision and control

14. R (Ferreira) v HM Senior Coroner for Inner South London and others - [2017] EWCA Civ 31 • “On this basis, any deprivation of liberty resulting from the administration of life-saving treatment to a person falls outside Article 5(1) (as it was said in Austin) “so long as [it is] rendered unavoidable as a result of circumstances beyond the control of the authorities and is necessary to avert a real risk of serious injury or damage, and [is] kept to the minimum required for that purpose”.

15. Covert Medication – Court guidance AG v BMBC and others [2016] EWCOP 37 • (i) if a person lacks capacity and is unable to understand the risks to their health if they do not take their prescribed medication and the person is refusing to take the medication then it should only be administered covertly in exceptional circumstances; • (ii) before the medication is administered covertly there must be a best interest decision which includes the relevant health professionals and the person’s family members; • (iii) if it is agreed that the administration of covert medication is in their best interests then this must be recorded and placed in the person’s medical records/care home records and there must be an agreed management plan including details of how it is to be reviewed; and • (iv) all of the above documentation must be easily accessible on any viewing of the person’s records within the care/nursing home. • (v) If there is no agreement then there should be an immediate application to Court.“

16. Covert medication - DoLS • The existence of such treatment must be clearly identified within the DoLS assessment and authorisation. • If the standard authorisation is to be for a period of longer than six months there should be a clear provision for regular, possibly monthly, reviews of the care and support plan. • There should at regular intervals be review involving family and healthcare professionals, all the more so if the standard authorisation is to be for the maximum twelve month period. • Where appointed an RPR should be fully involved in those discussions and review so that if appropriate an application for part 8 review can be made. • Any change of medication or treatment regime should also trigger a DoLS review where such medication is covertly administered.

17. Article 8 HRA • DoLS cannot authorise Article 8 restrictions

18. Why might the council not have assessed? ADASS criteria • Minimal evidence of control and supervision • No specific restraints or restrictions being used. E.g. in a care home not objecting, no additional restrictions in place. • Settled placement in care home/hospital placement, no evidence of objection etc. but still meet the requirements of the acid test. • End of life situations, intensive care situations which may meet the acid test but there will be no benefit to the person from the Safeguards Plus • Person only going to be in hospital or care home for a short period of time whatever the presentation.

19. Community deprivation of liberty • Streamlined process for non-contentious cases • Limited capacity to make court applications • Contact DoLS team for advice and support

20. Liberty Protection Safeguards • Unlikely to become law until 2020 at the very earliest. • DoH may trial some aspects sooner. • More responsibility for NHS teams.

21. Liberty Protection Safeguards will expect • Capacity assessment • If a person is unable to give valid consent to a particular restriction then there will be a relevant and up to date documented assessment of capacity in their care record.

22. March 2017 Law Commission proposal - 2 ‘tier’ system of authorisation • DoLS to be replaced by Liberty Protection Safeguards • Many people are still considered to be deprived of their liberty but…. • ‘Local’ arrangements will be sufficient for most. • Where person meets criteria that care/treatment amounts to a deprivation of liberty but they are not objecting - Can be authorised locally within hospital processes providing proper MCA procedure has been applied and evidenced.

23. Liberty Protection Safeguards will expect • The restrictions in place form part of a documented care plan. Evidence will be available to demonstrate how a decision was made in the person's best interests. This will include who was consulted, why the restrictions are necessary, that they are proportionate to the risks and there is no less restrictive option available.

24. Any (more) questions?

25. Cornwall CouncilCounty HallTruro TR1 3AYTel: 0300 1234 100www.cornwall.gov.uk