The Newcastle upon Tyne Hospitals NHS Foundation Trust
Deprivation of Liberty Safeguards
Version No.:
Effective From:
Expiry Date:
Date Ratified:
Ratified By:
1
2.0
7 March 2013
7 March 2016
1 March 2013
MCA Steering Group, Strategic Risk Management Group
Introduction
1.1 The Deprivation of Liberty Safeguards (DoL) were introduced to provide a legal
framework around deprivation of liberty, specifically, they were introduced to
prevent breaches of the European Convention on Human Rights (ECHR) such as
the one identified by the judgment of the European Court of Human Rights
(ECtHR) in the case of HL v the United Kingdom (commonly referred to as the
„Bournewood‟ judgment).
1.2 Should a member of staff feel that a patient is, or may be, being deprived of their
liberty the Trust‟s MCA/DoL lead, based within the Adult Safeguarding Team, must
be contacted for advice and guidance.
1.3 Although the MCA Code of Practice (COP) does not cover the DoL Safeguards,
the principles of the COP and much of its content are directly relevant to the DoL
Safeguards. It is important that both the Act and the main Code are adhered to
whenever capacity, best interest‟s issues and the DoL Safeguards are being
considered. The DoL Safeguards are in addition to, and do not replace, other
safeguards in the Act.
1.4 The DoL Code of practice and the main Code have statutory force, which means
that certain people are under a legal duty to have regard to them. More details can
be found in the Introduction to the main Code, which explains the legal status of
the Code and who should have regard to it.
2
Scope
2.1 The DoL Safeguards provide legal protection for those vulnerable people aged 18
and older, who are, or may become, deprived of their liberty within the meaning of
Article 5 of the ECHR, in a hospital or care home, whether placed under public or
private arrangements.
2.2 The DoL Safeguards do not apply to patients:
Detained under the Mental Health Act 1983
Who have capacity to consent to admission and treatment in hospital
Under the age of eighteen
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Where there are none, or very few, restrictions or restraints used to keep
the patient on the ward
3
Aims
This policy explains the Mental Capacity Act 2005 (MCA), DoL Safeguards and the
Trust process in identifying, responding and implementing the DoL Safeguards.
4
Duties (Roles and responsibilities)
4.1
The Role of the Trust’s MCA/DoL Lead
All DoL enquiries and applications to the supervisory body must be via the Trust‟s
MCA/DoL lead.
The Trust‟s MCA/DoL lead will have overall responsibility for the overseeing and
administration of the DoL process including:
- Dealing with day to day MCA/DoL enquiries
- Obtaining and completing appropriate forms (other than medical
information) for submission to the supervisory body
- Submitting applications and review requests for DoL
- Liaising with the supervisory bodies
- Monitoring granted DoL applications, including any conditions that may
have been attached to the granted DoL
- Submitting monitoring reports to MCA Steering group and Clinical
Governance and Quality Committee
- Submitting the appropriate returns to CQC
In the absence of the Trust‟s MCA/DoL lead (annual leave, sickness, etc.) then the
DoL responsibilities will be undertaken by a suitable member of the adults
Safeguarding Team.
5
Definitions
5.1
Advance Decision to Refuse Treatment
A decision to refuse specified treatment made in advance by a person who has
capacity to do so. This decision will then apply at a future time when that person
lacks capacity to consent to, or refuse, the specified treatment (see Policy on
Lasting Power of Attorney).
5.2
Assessor
A person who carries out a deprivation of liberty safeguards assessment.
5.3
Best Interests Assessment
An assessment, for the purpose of the deprivation of liberty safeguards, of whether
deprivation of liberty is in a detained person‟s best interests, is necessary to
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prevent harm to the person and is a proportionate response to the likelihood and
seriousness of that harm.
5.4
Capacity
Short for mental capacity. The ability to make a decision about a particular matter
at the time the decision needs to be made. A legal definition is contained in section
2 of the Mental Capacity Act 2005.
5.5
Conditions
Requirements that a supervisory body may impose when giving a standard
deprivation of liberty authorisation, after taking account of any recommendations
made by the best interest‟s assessor.
5.6
Consent
Agreeing to a course of action – specifically in this document, to a care plan or
treatment regime. For consent to be legally valid, the person giving it must have
the capacity to take the decision, have been given sufficient information to make
the decision, and not have been under any duress or inappropriate pressure.
5.7
Court of Protection
The specialist court for all issues relating to people who lack capacity to make
specific decisions.
5.8
Deprivation of Liberty
Deprivation of liberty is a term used in the European Convention on Human Rights
about circumstances when a person‟s freedom is taken away. Its meaning in
practice is being defined through case law.
5.9
Deprivation of Liberty Safeguards
The framework of safeguards under the Mental Capacity Act 2005 for people who
need to be deprived of their liberty in a hospital or care home in their best interests
for care or treatment and who lack the capacity to consent to the arrangements
made for their care or treatment.
5.10 Deputy
Someone appointed by the Court of Protection with ongoing legal authority, as
prescribed by the Court, to make decisions on behalf of a person who lacks
capacity to make particular decisions.
5.11 Eligibility Assessment
An assessment, for the purpose of the deprivation of liberty safeguards, of whether
or not a person is rendered ineligible for a standard deprivation of liberty
authorisation because the authorisation would conflict with requirements that are,
or could be, placed on the person under the Mental Health Act 1983.
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5.12 European Convention on Human Rights (ECHR)
A convention drawn up within the Council of Europe setting out a number of civil
and political rights and freedoms, and setting up a mechanism for the enforcement
of the obligations entered into by contracting states.
5.13 Independent Mental Capacity Advocate (IMCA)
Someone who provides support and representation for a person who lacks
capacity to make specific decisions, when the person has no-one else to support
them. The IMCA service was established by the Mental Capacity Act 2005 and is
not the same as an ordinary advocacy service.
5.14 Mental Capacity Assessment
An assessment, for the purpose of the deprivation of liberty safeguards, of whether
a person lacks capacity in relation to the question of whether or not they should be
accommodated in the relevant hospital or care home for the purpose of being
given care or treatment.
5.15 Mental Disorder
Any disorder or disability of the mind, apart from dependence on alcohol or drugs.
This includes all learning disabilities.
5.16 Mental Health Assessment
An assessment, for the purpose of the deprivation of liberty safeguards, of whether
a person has a mental disorder.
6
The aim of the Deprivation of Liberty Safeguards
The safeguards provide legal protection for those vulnerable adults who are deprived of
their liberty (Excluding the Mental Health Act 1983) to prevent arbitrary decisions to
deprive a person of liberty and to give rights to challenge any deprivation of liberty
authorisations. The safeguards apply to people who lack capacity to consent to care or
treatment, and who are suffering from a disorder of the mind.
In some cases members of this vulnerable group need to be deprived of their liberty for
treatment or care because this is necessary in their best interests to protect them from
harm.
The Mental Capacity Act will not permit someone being deprived of their liberty
without a DoL authorisation (unless it is a consequence of following a decision of
the Court of Protection on a personal welfare question).
6.1
Identifying a DoL
Whenever the Trust identifies that a person who lacks capacity is, or risks being,
deprived of their liberty, the Trust must apply to the “Supervisory Body” for
authorisation to deprive the patient of their liberty within the Trust.
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The supervisory body for the Trust is currently the PCT for which the patients care
and treatment is commissioned from. For example, a patient with a Newcastle GP,
the supervisory body will be Newcastle PCT; a patient from Blyth, the supervisory
body will be Northumberland PCT.
From 1st April 2013 the PCT‟s supervisory responsibilities transfer to the local
authority, from this date the supervisory body will be the local authority from where
the patient is „ordinarily resident‟.
Once a DoL has been identified as occurring, or is likely to occur, the member of
staff who identifies this must contact the Trust‟s MCA/DoL lead based within the
Adults Safeguarding Team and inform of the situation/circumstances so that the
MCA/DoL lead can decide if a DoL application to the supervisory body is required.
(Currently there is not a definition of what is a DoL, case law is expected to resolve
this situation in due course)
6.2
The DoL Application Process
As stated, the DoL process is administered by the Trust‟s MCA lead and anything
concerned with DoL applications, potential or actual, must go via the Trust‟s MCA
lead.
6.2.1 Upon notification of a DoL or potential DoL the MCA lead will gather as much
information about the relevant patient and their circumstances on the ward to
assess if there is or may be a DoL occurring.
6.2.2 If a DoL is not occurring, or likely to occur, the MCA lead will inform as such
and offer appropriate advice/guidance.
6.2.3 If a DoL is, or is likely to occur, then the Trust‟s MCA lead will administer the
application process by completing the relevant forms with the clinician in
charge of the patient‟s treatment.
6.2.4 The MCA lead will copy the forms; place them in a red folder with a cover
sheet explaining the wards statutory obligations and to contact the MCA lead
if there are any changes in the patients care, capacity or circumstances.
This red folder will be placed in the front of the patient’s notes.
6.2.5 The MCA Lead will email the consultant in charge of the persons care to
inform that the patient is subject to the DoL Safeguards and their statutory
obligations under the MCA
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6.2.6 The MCA lead will submit the forms, via secure transmission, to the
appropriate supervisory body and record all dates and relevant information
relating to the DoL application
6.2.7 The MCA lead will submit the CQC notification/outcome forms via the
Trust‟s Quality Assurance Lead
6.2.8 The DoL Best Interest assessor, appointed by the supervisory body, will
notify the ward directly on the outcome of their assessment and
recommendation as to whether the DoL application has been granted or
denied.
6.2.9 If a DoL is granted the MCA lead will liaise with the ward on any conditions
that have been attached to the authorisation and update the patients red
DoL folder.
6.2.10 It is the ward staff’s responsibility to inform the DoL lead if there are
any changes to the patients circumstances and/or care arrangements
6.2.11 If the patient dies whilst subject to a DoL the coroner must be
informed as soon as practicable.
6.2.12 Please see Appendix 1 for the Standard Operating Procedure used by
the Safeguarding Team for the DoL process
7
Training
The Trust expects all staff responsible for patient care to have a good basic
understanding of the Mental Capacity Act 2005 in relation to their role in delivering
patient centred care.
To support this, the Trust has developed an online training package (Breeze) that once
staff have completed equips them with a good understanding of the act, how to
implement it and how it relates to the DoL Safeguards.
The MCA Breeze package is one of three Safeguarding Adults training modules, the
other elements are Safeguarding Adults and Learning Disabilities.
8
Equality and diversity
The Trust is committed to ensuring that, as far as is reasonably practicable, the way we
provide services to the public and the way we treat our staff reflects their individual
needs and does not discriminate against individuals or groups on any grounds. This
document has been appropriately assessed.
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9
Monitoring compliance
Standard /
process / issue
Monitoring and audit
Method
By
Committee
Frequency
DoL Safeguards
Minutes of MCA steering
group including activity
data submitted to
MCA
Lead
MCA steering group &
Strategic Risk
Management Group
Quarterly
Independent Mental
Capacity Advocate
(IMCA)
Report to identify potential
qualifying patients
MCA
lead
MCA steering group &
Strategic Risk
Management Group
Weekly
10
Consultation and review
The DoL policy is reviewed informally on an ongoing basis via the MCA/DoL lead who
maintains an up to date knowledge of latest case law that impacts upon the policy and
as a consequence the Trust.
In addition the MCA steering group regularly discuss and make recommendations that
may lead to the policy being amended
The following are also considered when the policy is reviewed:
MCA Code of practice
Deprivation of Liberty Code of Practice
DoH guidance
CQC guidance and inspection reports
Recent case law
The MCA steering group membership consists of a wide spectrum of professionals from
across the Trust and any consultation, whether specifically on the MCA policy or
otherwise, is cascaded/distributed by the membership to their respective departments
for comment and feedback.
11
Implementation (including raising awareness)
Currently there is not a definition as to what constitutes a Deprivation of Liberty, making
implementation of the policy difficult. (Case law is expected to offer guidance in due
time)
However, the Trust has devised an online Breeze training package which is available to
all Trust staff which equips them with the requisite knowledge of both the MCA and DoL
safeguards.
In addition, the Trust MCA lead provides bespoke training, guidance and advice across
the Trust and distributes „promotional material‟ whenever available.
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12
References
Mental Capacity Act 2005 Code of Practice
Deprivation of Liberty Code of Practice
Mental Health Act 2007
SCIE: PoC1B2B 100563 4.00 The Mental Capacity Act 2005: Guidance for
providers
13
Associated documentation
The MCA policy impacts upon the Trust as a whole especially with regard to direct
patient care, the following lists Trust policies that the MCA form a major part of:
Deprivation of Liberty Safeguards
Consent
Lasting Power of Attorney (LPA)
Deciding Right
Advance Decisions to Refuse treatment (ADRT)
Discharge
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Appendix 1
Standard Operating Procedure for:
Applications to Deprive a Patient of their Liberty to Provide Care/Treatment
Objectives:
This procedure is to inform of the correct process in applying for a
Deprivation of Liberty under the Mental Capacity Act 2005,
Deprivation of Liberty Safeguards. Reference should be made to:
-
Mental Capacity Act 2005: Code of Practice
-
Deprivation of Liberty Safeguards: Code of Practice
-
NUTH - The Mental Capacity Act 2005 Policy Including the
Deprivation of Liberty Amendment 2009
-
NUTH - Policy and Procedure for the Deprivation of Liberty of a
Patient under the Mental Capacity Act 2005
Scope:
This procedure applies to any inpatient service within NUTH that may
have cause to deprive a patient, aged over 18 years old, of their liberty
in order to provide care/treatment.
Responsibility: It is the responsibility of all inpatient staff to identify if there is, or may
be, a Deprivation of Liberty occurring and to notify the Trust MCA/DoL
lead.
It is the responsibility of the Trust MCA/DoL lead to guide and support
staff through the DoL application process, administer all
documentation, ensure timescales are met, liaise between Trust staff
and the Supervisory Body (Either PCT or LA)and submit the correct
documentation to the appropriate bodies.
If the Trust MCA/DoL lead is not available then a member of the
Safeguarding Adults Team will undertake this role and follow this
SOP.
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Safeguarding Adults Team
Receive Notification
Possible Deprivation of Liberty (DoL)
- Has patient‟s lack of capacity been documented?
- Identify restrictions being placed upon patient
- Is there a planned discharge?
- Is there an MDT due? (Possible discharge)
- Are family friends allowed to visit/see patient?
- Is patient being sedated?
Advise
NO
Is DoL
Occurring
?
Arrange to visit ward ASAP to
complete forms by most
senior/available doctor
YES
Download
Forms 1 (Urgent Authorisation) & 4
(Standard Application) from: DoH
Complete and print both Forms but do not
complete medical sections such as diagnosis,
treatment etc. as consultant has to complete
these.
Notify: Northumberland S.A.
Team that a DoL application
is being submitted
(Telephone 01670 622 683)
Compile:
1. Patients DoL folder (storing all documents)
2. „DoL Red Folder‟ for patients medical file
3. Complete & print cover sheet for red folder with
details (name, dates etc)
4. Insert DoL leaflets into Red Folder
Send both forms 1 & 4 to Northumberland SA team:
Safe Haven Fax: 01670 626 040
Email (only via NHS.net) [email protected] and/or
[email protected]
(If email, completed forms need to be scanned by NUTH SA
admin)
Notify via Email:
Francis Blackburn – ward, site, gender
etc.
Patients Consultant – informing patient
subject to DoL, Red folder in notes and
their statutory duties.
1.
2.
3.
4.
Visit ward as arranged for
consultant to complete and sign
both forms
Copy Form 1 and place in patients Red
Folder
Place Red Folder at front of patients file
Put „DoL stickers‟ on patients notes
Inform Sister of Red folder and DoL
responsibilities
Note in diary when
DoL decision due.
1.
NO
2.
Check reasons in BIA report why denied &
if required notify patient‟s consultant of any
changes that are needed.
Remove Red folder from patients file
YES
DoL
Granted
?
1.
2.
Check BIA report for any conditions attached. If so notify
consultant/ward
Make note in diary:
a. End date of DoL
b. Weekly e-record check ensure patient still on ward
If patient discharged complete and
print form 19 (Request for review)
and send to Northumberland SA
Team.
If patient moves site (e.g. FH to RVI)
then new DoL applications is required
i.e. start this process again.
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Complete CQC DoL
notification form (CQC
website) print for folder
copy and email to
[email protected]
hs.uk
If patient dies whilst subject to
DoL the coroner must be informed
– ensure this has been done