Policy No: Version: OP57 3.0 Name of Policy: Deprivation of Liberty Safeguards Policy Effective From: 21/08/2014 Date Ratified Ratified Review Date Sponsor Expiry Date Withdrawn Date 18/07/2014 Safeguarding Committee 01/07/2016 Deputy Chief Executive 17/07/2017 This policy supersedes all previous issues. Deprivation of Liberty Safeguards Policy v2.1 Version Control Author/Reviewer Ratified by/Authorised by Judith Gibson Central Team Version Release 1.0 2.0 29/03/2009 08/10/2012 2.1 22/08/2013 Claire Downes 3.0 21/08/2014 Claire Downes Claire Downes Date 29/03/2009 Changes (Please identify page no.) Safeguarding 14/09/2012 New policy Committee format Director of 21/08/2013 New Appendix 3 Transformation included and Compliance
(amalgamation of previous appendices 3 and 4 now as one form) Safeguarding 18/07/2014 6.4 Identifying a committee possible Deprivation of Liberty amended following Supreme Court Judges ruling 19.03.2014 Deprivation of Liberty Safeguards Policy v2.1 2
Contents Section Page 1 Introduction ................................................................................................................. 4 2 Policy scope .................................................................................................................. 4 3 Aim of policy ................................................................................................................ 4 4 Duties (Roles and responsibilities) .............................................................................. 4 5 Definitions .................................................................................................................... 5 6 The Legal Framework ................................................................................................... 6 6.1 Qualifying Requirements ................................................................................. 7 6.2 Assessing whether the Qualifying Requirements are met .............................. 7 6.3 Assessment Time Limits ................................................................................... 8 6.4 Identifying a Possible Deprivation of Liberty ................................................... 8 6.5 Procedure for Standard Authorisation ............................................................ 8 6.6 Procedure for Urgent Authorisation ................................................................ 10 6.7 Requesting an Extension of an Urgent Authorisation ..................................... 10 6.8 Possible Unauthorised Deprivations ................................................................ 10 6.9 Record Keeping ................................................................................................ 11 6.10 Relevant Person’s Representative ................................................................... 11 6.11 Independent Mental Capacity Advocate (IMCA) ............................................. 12 6.12 Court of Protection .......................................................................................... 12 7 Training ........................................................................................................................ 13 8 Equality and diversity ................................................................................................... 14 9 Monitoring compliance with the policy ....................................................................... 14 10 Consultation and review ............................................................................................. 14 11 Implementation of policy (including raising awareness) ............................................. 14 12 References.................................................................................................................... 14 13 Associated documentation (policies) ........................................................................... 14 Appendices Appendix 1 DoLS Application Flow Chart ............................................................................ 15 Appendix 2 Form MCA 1 .................................................................................................... 16 Appendix 3 Form 4 – Urgent Authorisation and Standard Authorisation .......................... 19 Appendix 4 Letter to Managing Authority .......................................................................... 28 Appendix 5 Letter Supervisory Body ................................................................................... 29 Appendix 6 Guidance on the use of MHA 1983 v MCA 2005 ............................................. 30 Deprivation of Liberty Safeguards Policy v2.1 3
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Introduction The Mental Capacity Act 2005 provides a statutory framework for acting and making decisions on behalf of individuals who lack the mental capacity to do so for themselves. From 1 April 2009, the Act contains procedures for authorising the deprivation of liberty in hospitals and care homes of some people who lack capacity to consent to being there. Guidance on the operation of the procedures is contained in the Deprivation of Liberty Safeguards Code of Practice, which is a supplement to the main Mental Capacity Act 2005 Code of Practice. The Safeguards provide a statutory framework in circumstances where a person, aged 18 years or over, lacks the necessary capacity to consent to care or treatment and the circumstances/environment in which that care or treatment is to be provided amounts to a deprivation of liberty. This deprivation of liberty must be for the prevention of harm to the incapacitated person and in the best interests of the person. The Safeguards do not apply to people detained under the Mental Health Act 1983. Policy scope This document gives guidance to practitioners regarding the identification of a potential deprivation of liberty and the process to be followed if an unavoidable deprivation of liberty is occurring or is going to occur. This policy is relevant to all identified deprivation of liberties within a Gateshead Health NHS Trust hospital. Aim of policy This policy is to ensure the Trust, as a managing authority, meets it’s responsibilities under the Mental Capacity Act Deprivation of Liberty Safeguards. It explains the procedures and identifies responsibilities everyone has and includes the deprivation of liberty safeguards standard forms, standard letters and other records that need to be completed and kept by the Trust when these procedures are used. Duties (Roles and responsibilities) Trust Board The Trust Board is responsible for implementing a robust system of corporate governance within the organisation. This includes having a systematic process for the development, management and authorisation of policies. Chief Executive The Chief Executive has overall responsibility to ensure that policies and procedures are in place for the Deprivation of Liberty Safeguards. Divisional Directors, Service Managers, Senior nurses, Ward and Department Managers Are responsible for ensuring that the Deprivation of Liberty Safeguards are adhered to. Deprivation of Liberty Safeguards Policy v2.1 4
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All staff Are responsible for ensuring they are aware in the implications of the Deprivation of Liberty Safeguards. Definitions Best Interests Assessor (BIA) – A professional person who has undertaken specialist training. Court of Protection – A specialist Court introduced by the Mental Capacity Act 2005. Deprivation of Liberty ‐ A term used in the European Convention on Human Rights to describe situations when a person’s freedom is taken away. ECtHR – European Court of Human Rights Independent Mental Capacity Advocate (IMCA) – An advocacy service introduced by the Mental Capacity Act 2005. Lasting Powers of Attorney – The ability, whilst you have capacity, to appoint a person to make decisions on your behalf at a time in the future when you may lack capacity to make specific decisions yourself relating to property, finance or health and welfare. Managing Authority – In the case of a NHS hospital, the managing authority is the NHS body responsible for the running of the hospital in which the relevant person is. In the case of a Care Home the Managing Authority will be the person registered under part 2 of the Care Standards Act 2000 in respect of the care home. Mental Health Assessor – A doctor who is approved under section 12 of the Mental Health Act and who have completed the standard training for mental health assessors. Relevant Person‐ The individual who is being cared for under the Deprivation of Liberty Safeguards either urgent or standard authorisation. Relevant Persons Representative – The person appointed by the Supervisory Body to maintain contact with and support the person who is being cared for under a Deprivation of Liberty Authorisation. Restriction of Liberty – A situation where care and treatment necessitates some restrictions to a persons liberty for a short or limited time period. Standard Authorisation – The authorisation in advance required by a managing authority, given by the relevant supervisory body, when it appears likely that, at some time in the next 28 days, someone will be accommodated in its hospital or care home in circumstances that amount to a deprivation of liberty. Supervisory Body – A supervisory body is responsible for considering requests for authorisations, commissioning the required assessments and, where all the assessments Deprivation of Liberty Safeguards Policy v2.1 5
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agree, for authorising the deprivation of liberty. If a Primary Care Trust (PCT) commissions the relevant care or treatment then they are the supervisory body, in any other case, the PCT for the area in which the hospital is situated is the supervisory body. Where the deprivation of liberty safeguards are applied to a person in a care home, the supervisory body will be the local authority for the area in which person is ordinarily resident. If the person is of no fixed abode then the supervisory body will be the local authority for the area in which the care home is situated. Urgent Authorisation – Where a standard authorisation in advance is not possible, and the managing authority believes it is necessary to deprive someone of their liberty in their best interests before the standard authorisation process can be completed, the managing authority must apply an urgent authorisation themselves which will allow up to seven days for the standard authorisation to be applied. The Legal Framework The legal framework states that: ƒ
A person may not be deprived of their liberty in a hospital or care home unless a standard or urgent authorisation is in force. ƒ
The Safeguards apply to local authority, NHS, independent and voluntary sector hospitals and care homes and to anybody being treated or cared for in those environments irrespective of whether they are publicly or privately funded. ƒ
Managing Authorities must request a standard authorisation from the Supervisory Body, when one is necessary, in advance of a deprivation of liberty commencing wherever possible. They must also ensure that any conditions attached to a standard authorisation are complied with. ƒ
If it is necessary to deprive a person of their liberty before a standard authorisation can be given, the managing authority must grant itself an urgent authorisation. This may last for a maximum of seven days only, by which time a standard authorisation must be in place. A supervisory body may, however, extend an urgent authorisation for a maximum of a further seven days if, in exceptional circumstances, it has not been possible to complete the standard authorisation process within the timescale of the original urgent authorisation. ƒ
Supervisory Bodies will undertake an assessment on receipt of an application and will appoint a relevant person’s representative to support the person being deprived of their liberty. ƒ
For the purposes of the Mental Capacity Act 2005, references to deprivation of a person’s liberty have the same meaning as in Article 5(1) of the European convention on Human Rights. ƒ
There are two main exceptions to this scheme. Firstly, the Court of Protection may authorise the deprivation of a person’s liberty in a hospital or care home and secondly some hospitals are registered to detain people under the Mental Health Act 1983. In some circumstances the Mental Health Act may be used instead. ƒ
Deprivation of Liberty must be for the purpose of providing care and treatment but an urgent or standard authorisation does not authorise such care or treatment. The arrangements for providing care or treatment to a person in respect of whom a Deprivation of Liberty Safeguards Policy v2.1 6
deprivation of liberty authorisation is given are subject to the wider provisions of the Mental Capacity Act 2005. 6.1 6.2 Qualifying Requirements Certain conditions must be met before a person may be deprived of their liberty under a standard authorisation. These conditions are known as the ‘qualifying requirements’. The qualifying requirements are: •
Age requirement. The relevant person must be 18 years of age or over. •
No refusals requirement. An authorisation to deprived the relevant person of their liberty would not conflict with other existing authority for decision‐making for that person. •
Mental capacity requirement. The relevant person must lack the capacity to decide whether or not they should be accommodated in the hospital or care home. •
Mental health requirement. The mental health assessment is to establish whether the relevant person has a mental disorder within the meaning of the Mental Health Act 1983. (See Appendix 6). •
Eligibility requirement. Relates specifically to the relevant person’s status, or potential status, under the Mental Health Act 1983. •
Best interests requirement. The purpose of the best interests assessment is to establish whether a deprivation of liberty is occurring or is going to occur and if it is in the person’s best interests. Assessing Whether the Qualifying Requirements are Met Once a standard authorisation is requested, the relevant person will be assessed by professionals chosen by the supervisory body. The assessors must decide whether or not the person satisfies the qualifying requirements. Because a standard authorisation may be applied for before the person needs to be deprived of their liberty, the person’s circumstances may change before the authorisation is granted. When assessing whether or not a person meets a particular qualifying requirement, the assessor must take into account the circumstances as they are expected to be when the requested standard authorisation comes into force. Assessors may at all reasonable times examine and take copies of: •
any health record relating to the person; Deprivation of Liberty Safeguards Policy v2.1 7
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any local authority record compiled in accordance with a social services function; and any record held by a person registered under Part 2 of the Care Standards Act 2000 which the assessor considers may be relevant to their assessment. 6.3 6.4 Assessment Time Limits If a managing authority has granted itself an urgent authorisation, all of the assessments required for a standard authorisation must be completed during the period the urgent authorisation is in force. Where no urgent authorisation is in force, all assessments required for a standard authorisation must be completed within 21 days from the date the supervisory body receives a request for such an authorisation. Identifying a Possible Deprivation of Liberty The Supreme Court has clarified that there is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights in the following circumstances: a. The person is under continuous supervision and control and b. Is not free to leave and c. The person does not have capacity to consent to these arrangements. This is now know as the ‘Acid Test’. Whether a person is compliant or does not object to these arrangements are not relevant, neither is the reason or purpose behind these arrangements. It is always necessary in each case to consider whether the deprivation of liberty lasts more than a negligible period of time. Precisely how long such a period of time is has not been clarified but it is advisable to allow a period of assessment in order to establish the likelihood of the person regaining capacity and the length of time the patient is expected to remain in hospital. When applying for a deprivation of liberty authorisation there is an initial time limit of seven days to allow the supervisory body to instruct assessors to visit the ward and assess the person. If it is expected that the person will either regain capacity or be discharged within that time frame there is no need to apply for an authorisation. However, if it is not expected that the patient will regain capacity and it is known that the admission will last more than seven days, an application must be submitted. 6.5 Procedure for Standard Authorisation The decision to apply for authorisation for a deprivation of liberty will be a multi‐
disciplinary one. A professionally qualified member of the care team will be Deprivation of Liberty Safeguards Policy v2.1 8
nominated by the multi‐disciplinary team to complete the application using Form 4 (shown in Appendix 3). The application should be faxed to the Deprivation of Liberty Team at Gateshead Council (Fax No. 443 2487) immediately and a copy faxed to the Mental Health Act Office (Fax No. 445 6203). Inform the Mental Health Act Administration Team that an application has been sent (ext. 6341) and they will inform CQC. The Mental Health Act Administration Team must be informed of the outcome of the application and they will inform CQC accordingly. If the person is considered to be deprived of their liberty while waiting for the standard authorisation an urgent authorisation should be granted by the Trust (see 6.8 below). The Supervisory Body will then arrange for a Mental Health Assessor and a Best Interest Assessor to carry out an assessment of the six qualifying requirements. An authorisation will not be given if any of the requirements are not fulfilled. The Supervisory Body will then issue a written authorisation to deprived that person of their liberty which will state the duration which the authorisation is to be in force, the purpose for which the authorisation is given and any conditions subject to which the authorisation is given. It is the responsibility of the supervisory body to appoint a representative for the person being deprived of their liberty. The managing authority must take all practical and possible steps to ensure that the person deprived of their liberty understands the effects of the authorisation and their rights around it. These include their right to challenge the authorisation via the Court of Protection, their tight to request a review, and their right to have an IMCA instructed. Appropriate information must be given to the person deprived of their liberty both orally and in writing. Any written information must also be given to the relevant person’s representative. The managing authority is responsible for ensuring that it does not deprive a person of their liberty without an authorisation. The managing authority must comply with the law in this respect: where a request for an authorisation is turned down, it will need to review the relevant person’s actual or proposed care arrangements to ensure that a deprivation of liberty is not allowed to either continue or commence. The managing authority must apply for a new standard authorisation within three weeks of the original authorisation expiry date in the event that a deprivation of liberty is required to continue after that expiry date. If the relevant person is subsequently subject to a section under the Mental Health Act 1983, then the managing authority must suspend the standard authorisation using Form 14 which is available on the Safeguarding Web page in the MCA/DoLS section. If the relevant person no longer meets any of the other qualifying requirements or the person has been discharged then the managing authority must complete Form Deprivation of Liberty Safeguards Policy v2.1 9
19 to request a review of the authorisation. Form is available on the Safeguarding Web page in the MCA/DoLS section. 6.6 Procedure for Urgent Authorisation Urgent authorisation cannot be made without a request for a standard authorisation being made simultaneously. Therefore before giving urgent authorisation the Trust, via the multi‐disciplinary team will have a reasonable expectation that the six qualifying requirements for a standard authorisation are likely to be met (see 6.1 above). The views of the relevant person’s family, friends, carers, other staff who have involvement in the person’s case should be sought and considered at an early stage and outcome recorded in the person’s records. Once a decision has been made to apply for a standard authorisation consideration should be given to the person’s status at that point and the time during the assessment process, if it is considered that the person is or will be deprived of their liberty at any point during this time an urgent authorisation will be made. A professionally qualified member of the care team will be nominated by the multi‐
disciplinary team to provide the authorisation and complete the process using Form 1 (Appendix 4). The maximum period for which a managing authority can give itself an urgent authorisation is seven days. Once an urgent authorisation is given, the law provides that all of the assessments required for a standard authorisation must be completed before the urgent authorisation expires. The notification should be faxed to the Deprivation of Liberty Team at Gateshead Council (Fax No. 443 2487) immediately and a copy faxed to the Mental Health Act Office (Fax No. 445 6203). 6.7 Requesting an Extension of an Urgent Authorisation There may be exceptional reasons where it appears that the urgent authorisation might expire before the assessors can complete all of the assessments necessary for a standard authorisation. The authorisation can be extended by a maximum of a further seven days by the supervisory body. A few days in advance of the expiry of an urgent authorisation, the Mental Health Act Administration Team should check with the supervisory body how the standard authorisation assessment process is progressing. If an extension of the urgent authorisation is needed, the Mental Health Administration Team will liaise with the relevant ward to ensure a request is made. 6.8 Possible Unauthorised Deprivations If the relevant person themselves, any relative, friend or carer or any other third party (such as a person carrying out an inspection visit or a member of an advocacy organisation) believes that a person is being deprived of liberty without the managing authority having applied for an authorisation, they should draw this to Deprivation of Liberty Safeguards Policy v2.1 10
the attention of the managing authority. A standard letter is available for this purpose (Appendix 5). In the first instance, they should ask the managing authority to apply for an authorisation if it wants to continue with the care regime, or to change the care regime immediately. Given the seriousness of deprivation of liberty, the managing authority must respond within a reasonable time to the request. This would normally mean within 24 hours. In the first instance the managing authority should try and resolve the matter. However, if the managing authority is unable to do this with the concerned person quickly, they should submit a request for a standard authorisation to the supervisory body. If the concerned person has raised the matter with the managing authority, and the managing authority does not apply for an authorisation within a reasonable period, the concerned person can ask the supervisory body to decide whether there is an unauthorised deprivation of liberty. They should: •
tell the supervisory body the name of the person they are concerned about and the name of the hospital or care home, and •
as far as they are able, explain why they think that the person is deprived of their liberty. A standard letter is available for this purpose (Appendix 6) and the supervisory body should immediately arrange a preliminary assessment to determine whether a deprivation of liberty is occurring. 6.9 Record Keeping The Mental Health Act Administration Team will open a new file for a person whenever an urgent authorisation is given or a standard authorisation is requested. This file will remain open until the person ceases to be deprived of their liberty under the Mental Capacity Act 2005. It will contain all of the completed forms, notices, requests and other documents concerning the person and their deprivation of liberty. Completed application / urgent authorisations will be faxed to the Medical Secretaries (Fax No. 445 3834) who will forward them to the Mental Health Act Administration Team and a copy of all forms will be kept in the relevant person’s medical notes. Ward staff must record any contact made by the Relevant Person Representative, any IMCA and relatives and record their comments and/or views regarding the persons case. This should be recorded in the persons health records. 6.10 Relevant Person’s Representative The supervisory body must appoint a relevant person’s representative for every person to whom they give a standard authorisation for deprivation of liberty. It is important that the representative is appointed at the time the authorisation is given or as soon as possible and practical thereafter. The role of the relevant person’s representative, once appointed, is: •
to maintain contact with the relevant person, and Deprivation of Liberty Safeguards Policy v2.1 11
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to represent and support the relevant person in all matters relating to the deprivation of liberty safeguards, including, if appropriate, triggering a review, using an organisation’s complaints procedure on the person’s behalf or making an application to the Court of Protection. As soon as possible and practical after a standard deprivation of liberty authorisation is given, the managing authority must seek to ensure that the relevant person and their representative understand: •
the effect of the authorisation •
their right to request a review •
the formal and informal complaints procedures that are available to them •
their right to make an application to the Court of Protection to seek variation or termination of the authorisation, and •
their right, where the relevant person does not have a paid ‘professional’ representative, to request the support of an Independent Mental Capacity Advocate (IMCA). 6.11 Independent Mental Capacity Advocate (IMCA) A person who is being deprived of their liberty will be in a particularly vulnerable position during any gaps in the appointment of the relevant person’s representative, since there may be nobody to represent their interests or to apply for a review on their behalf. In these circumstances, if there is nobody who can support and represent the person (other than a person engaged in providing care and treatment in a professional or paid capacity) the managing authority must notify the supervisory body, who must instruct an IMCA to represent the relevant person until a new representative is appointed. Both the person who is deprived of their liberty under a standard authorisation and their representative have a statutory right of access to an IMCA. It is the responsibility of the supervisory body to instruct an IMCA if the relevant person or their representative requests one. The role of the IMCA is to help represent the relevant person and to assist the relevant person and their representative to understand the effect of the authorisation and what it means, why it has been given, how long it will last, conditions attached to the authorisation and how to trigger a review or challenge in the Court of Protection. 6.12 Court of Protection To comply with Article 5(4) of the European Convention on Human Rights, anybody deprived of their liberty in accordance with the safeguards is entitled to the right of speedy access to a court that can review the lawfulness of their deprivation of liberty. The Court of Protection, established by the Mental Capacity Act 2005, is the court for this purpose. The relevant person, or someone acting on their behalf, may make an application to the Court of Protection before a decision has been reached. Deprivation of Liberty Safeguards Policy v2.1 12
Once a standard authorisation has been given, the relevant person or their representative has the right to apply to the court to determine: •
whether the relevant person meets one or more of the qualifying requirements •
the period for which the standard authorisation is to be in force •
the purpose for which the standard authorisation has been given •
the conditions attached to the standard authorisation Where an urgent authorisation has been given, the relevant person or certain persons acting on their behalf, such as a donee or deputy, has the right to apply to the court to determine: •
•
•
Whether the urgent authorisation should have been given The period for which the urgent authorisation is to be in force The purpose for which the urgent authorisation has been given The following people have an automatic right of access to the Court of Protection and do not have to obtain permission from the court to make an application: •
•
•
•
•
A person who lacks, or is alleged to lack, capacity in relation to a specific decision or action The donor of a Lasting Power of Attorney to whom an application relates, or their donee A deputy who has been appointed by the court to act for the person concerned A person named in an existing court order to which the application relates The person appointed by the supervisory body as the relevant persons representative There will usually be a fee for applications to the court. Details are available from the Office of the Public Guardian (http://www.publicguardian.gov.uk/). 7.
Training Type Safeguarding Adults presentation at Trust Mandatory Training Day – signposts staff to MCA & DoLS training MCA & DoLS presentation during Trust Induction Programme MCA Champion Training DoLS Training Deprivation of Liberty Safeguards Policy v2.1 Staff Group All staff groups attend. Frequency Mandatory Training Days are held twice per month. Staff attend on a yearly basis. All Health Care Induction programme Profession staff attend. undertaken each month as necessary. All Band 6 Clinical Leads Initial training will be delivered and Band 7’s until eligible staff have attended and then regular supervision/update training will be available. All MCA Champions Initial training will be delivered who work within an in‐ until eligible staff have 13
patient area 8.
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Equality and diversity The Trust is committed to ensuring that, as far as is reasonably practicable, the way we treat members of staff and patients reflects their individual needs and does not discriminate against individuals or groups on the grounds of any protected characteristic (Equality Act 2010). An equality analysis has been undertaken for this policy. Monitoring compliance with the policy Standard / process / issue Statutory notification of all Applications to deprive someone of their liberty will be sent to CQC and the outcome of the assessment. 10.
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attended and then regular supervision/update training will be available. Monitoring and audit Method By Committee Frequency Statutory Mental Health Safeguarding notifications will Act Committee Data will be be sent and a Administration reported data base will be Team upon on a kept of all DoLS quarterly applications and basis their outcomes. Consultation and review This policy has been reviewed against the Mental Capacity Act 2005, The Mental Capacity Act 2005 Code of Practice and the Deprivation of Liberty Safeguards Code of Practice and in discussion with the Safecare matron and the Trust’s Equality Officer. Implementation of policy (including raising awareness) This policy will be implemented within the Trust in compliance with the Policy for the Development, Management and authorisation of policies and procedures and through the Trust in‐house training programme for Deprivation of Liberty Safeguards. References Mental Health Act 1983 Code of Practice TSO, 2008. Reference Guide to the Mental Health Act 1983 TSO, 2008. Mental Health Act Manual, Richard Jones, 2008‐10‐20. Mental Capacity Act 2005 Code of Practice, TSO,2007. Mental Capacity Act Deprivation of Liberty Safeguards Code of Practice. TSO 2008. Mental Capacity Act 2005 Deprivation Of Liberty Safeguards Forms & Record‐Keeping Guide For Managing Authorities In England (Hospitals And Care Homes) Department of Health: Social Care ‐ Policy & Innovation ‐ Dignity and Quality 11 Nov 2008. Deprivation of Liberty Safeguards Policy v2.1 14
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Associated documentation OP25 – Advanced decision to Refuse Treatment policy OP45 – Safeguarding Adults policy RM04 – Incident Reporting and Investigation policy Appendix 1
NHS Deprivation of Liberty – The ‘Acid Test’ Does the person have the mental capacity to be able to consent to the arrangements made for their care and treatment? If in doubt complete a written Capacity Assessment using MCA 1 Form Yes
They cannot be deprived of their liberty unless they agree No The Person is under continuous supervision and control? AND They are not free to leave the ward Yes The person may be deprived of their Liberty and a DoLS Authorisation should be sought. Allow time for an initial period of assessment to establish likelihood of patient regaining capacity and expected length of stay in hospital. If after this initial assessment period the patient is expected to remain in hospital for more than 5 days and it is unknown or unlikely that they will regain capacity then application for DoLS must be made Complete a combined Urgent Authorisation and Standard Authorisation Application (can be found on the Trust Intranet Safeguarding Webpage) and fax immediately to the Gateshead Local Authority DoLS Co‐ordinator on Deprivation of Liberty Safeguards Policy v2.1 15
Fax No: 4332487 and fax a copy to the Trust MCA Lead on Fax No: 6203 NB ‐ If the patient does not live in Gateshead please contact the MCA Lead for the appropriate fax number.
Further advice and information is available from the Trust MCA Lead on Ext: 6341 or Bleep: 2571 Deprivation of Liberty Safeguards Policy v2.1 16
RM74 – Mental Capacity Act 2005 Appendix 2 Gateshead Multi Agency Safeguarding Adults Partnership Mental Capacity Act 2005 FORM MCA1 Guidance: you are completing this form either because you are uncertain if the person identified below had mental capacity to make a particular decision or you had information that led you to believe this person did not have mental capacity to make that particular decision. Name Of Service User: Name Of Assessing Officer: Date assessment started: Please give the name, status and contact details of anyone who assisted with this assessment: Name Status and contact details Description Of The Decision To Be Made By Service User In Relation To Their Care Or Treatment: Please print your name, job title, qualification date and sign each page of this form Page 1 of 3
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STAGE 1 ‐ DETERMINING IMPAIRMENT OR DISTURBANCE OF MIND OR BRAIN Guidance: every adult should be assumed to have the capacity to make a decision unless it is proved that they lack capacity. An assumption about someone's capacity cannot be made merely on the basis of a Service Users age or appearance, diagnosis / condition or aspect of his or her behaviour. Q1. Is there an impairment of, or disturbance in the functioning of the Service Users mind or brain? (For example, symptoms of alcohol or drug use, delirium, concussion following head injury, conditions associated with some forms of mental illness, dementia, significant learning disability, long term effects of brain damage, confusion, drowsiness or loss of consciousness due to a physical or medical condition) Response Yes Comments Please provide summary of reasons:
If you have answered YES to Question 1, PROCEED TO STAGE 2 If you have answered NO to the above, there is no such impairment or disturbance and thus THE SERVICE USER CANNOT LACK CAPACITY within the meaning of the Mental Capacity Act 2005. Sign/date this form, record the outcome within the Service User records and PROCEED NO FURTHER WITH THIS RECORD OF ASSESSMENT OF CAPACITY STAGE 2 ‐ ASSESSMENT Having determined impairment or disturbance (Stage 1) and given consideration to the case, location and timing; relevance of information communicated; the communication method used; and others involvement, you now need to complete your assessment and form your opinion as to whether the impairment or disturbance is sufficient that the Service User lacks the capacity to make this particular decision at this moment in time. Response Yes No Q2. Do you consider the Service User able to understand the information relevant to the decision and that this information has been provided in a way that the service user is most probably able to understand? Q3. Do you consider the Service User able to retain the information for long enough to use it in order to make a choice or an effective decision? Comments Deprivation of Liberty Safeguards Policy v2.1 18
Page 2of 3
Print your name job title qualifications Date sign
Q4. Do you consider the Service User able to use or weigh that information as part of the process of making the decision? Q5. Do you consider the Service User able to communicate their decision? Yes No Comments If you have answered YES consistently to Q2 to Q5, the Service User is considered on the balance of probability, to have the capacity to make this particular decision at this time. Sign/date this form and record the outcome within the Service User records and PROCEED NO FURTHER WITH THIS CAPACITY ASSESSMENT. If you have answered NO to any of the questions, proceed to Q6. Q6. Overall, do you consider on the balance of probability, that the impairment or disturbance as identified in STAGE 1, is sufficient that the Service User lacks the capacity to make this particular decision? Signature and Print name, job title, qualification: Page 3 of 3
On the balance of probability, the Service User Lacks Capacity to make this decision at this particular time. Sign and date this form and proceed to consider ‘Best Interests’ Date assessment completed Deprivation of Liberty Safeguards Policy v2.1 19
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Case Number Appendix 3
North East Regional MCA/DoLS LIN Mental Capacity Act 2005 Deprivation of Liberty Safeguards Combined Forms No. 1 and 4 Urgent Authorisation and Standard Authorisation (To be completed by the Managing Authority electronically) Part A:‐ Relevant Person’s details Name of Relevant Person Address of Relevant Person Gender (as defined by the person) Female Their date of birth (or estimated date D.O.B Date of Admission Age Hospital or Registered Adult Care Home where the Address person is or is likely to be deprived of their liberty (please include hospital ward if within the next 28 days. applicable) Postcode Name of the Managing Authority Name of Supervisory Body Male Name Person completing form Name Job Title Telephone E‐mail Name Address Current G.P and address of Relevant Person Deprivation of Liberty Safeguards Policy v2.1 21
Name all of the organisations funding the Relevant Person’s care/treatment LA Self Funder Part B: Demographic Information B1 Racial, ethnic or national origin Tick one of the boxes below White Mixed or Mixed British A British E White and Black African B Irish F White and Asian C Any other White background G Any other Mixed background D White and Black Caribbean Asian or Asian British Black or Black British H Indian M Caribbean J Pakistani N African K Bangladeshi P Any other Black background L Any other Asian background Other ethnic groups R Chinese S Other Z Not stated (to include cases in which their person refused to divulge their ethnic origin or when their ethnic origin is not known) B2 – The person’s religion or belief Tick one of the boxes below 1 None 6 Muslim 2 Christian 7 Sikh 3 Buddhist 8 Any other religion 4 Hindu 9 Not stated B3 – The person’s sexual orientation Tick one of the boxes below 1 Heterosexual 4 Other 2 Lesbian or gay 5 Prefer not to say 3 Bisexual 6 Not known B4 – The disability that is causing the person’s current incapacity Tick only one of A or B or C
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Physical disability, frailty and/or temporary illness Hearing impairment Visual impairment Dual sensory loss A OR Mental Health Please also place a cross in this box if the Mental Health condition is Dementia B OR C Learning Disability B5 – The person’s preferred communication method or preferred first language State how the person communicates e.g. spoken English, interpreter required (specify language), BSL signer required, etc. Part C:– Qualifying information Tick the relevant boxes below
C1 The person is aged 18 or over. C2 The person is suffering from a mental disorder – any disorder or disability of the mind. C3 The purpose of accommodating the person here is to give them care or treatment. The person lacks capacity to make their own decision about whether to be accommodated here for the purpose of being given the proposed care or treatment. The person has not, as far as the Managing Authority is aware, made a valid advance decision that prevents them from being given any of the proposed treatment.
Accommodating the person here, and giving them the proposed care or treatment, does not, as far as the Managing Authority is aware, conflict with a valid decision made by a Donee of a Lasting Power of Attorney or Deputy appointed by the Court of Protection under the Mental Capacity Act 2005. Even though the circumstances amount to depriving the person of their liberty, it is in their best interests to be accommodated here so that they may be given the proposed care or treatment. This is necessary in order to prevent harm to them, and is a proportionate response to the harm they are likely to suffer if they are not so deprived of liberty, and the seriousness of that harm. The person concerned is not, as far as the Managing Authority is aware, subject to an application or order under the Mental Health Act 1983 or, if they are, that order or application does not prevent an Urgent Authorisation being given. C4 C5 C6 C7 C8 C9 PART D – Why authorisation is needed All areas of this section must be completed (a) Give specific details of the types of care and treatment you are providing or intending to provide? Include any sedative or similar medication being proposed as part of care management regime. Deprivation of Liberty Safeguards Policy v2.1 23
Deprivation of Liberty Safeguards Policy v2.1 24
(b) State what restrictions on the person’s liberty are in place and why you think the restrictions cumulatively amount to a DOL? E.g. refusal to discharge, enhanced supervision, locked door, restricted movement/access, sedation, restrict family/carer contact etc. (c) Why can’t the care and/or treatment described above be provided in a way that is less restrictive of the person’s rights and freedom of action? E.g. it would be less safe or less effective, specialised equipment. (d) What alternatives to deprivation of liberty have been tried or considered? E.g. Could the care be provided at their home with increased support? Has living with relatives been unsuccessful? (e) What harm is the person likely to come to if they are not deprived of their liberty here? E.g. What are the risks? Self neglect, abuse, mistreatment, further deterioration in welfare or health. Deprivation of Liberty Safeguards Policy v2.1 25
PART E:– Details of this Urgent Authorisation (If one is required tick box below) N.B:‐ You may only grant an Urgent Authorisation if you are able to tick all 9 boxes in Section C above and box E1 below. I consider it likely that the person will meet all the qualifying requirements for a Standard Authorisation and the need for the person to be deprived of their liberty here is so urgent that I am immediately granting the Managing Authority an Urgent Authorisation. E1 (a) Why is the need to deprive the person of their liberty so urgent that it needs to begin immediately? E.g. Risks are already occurring. N.B :‐ This Urgent Authorisation permits the Managing Authority to immediately deprive the person of their liberty here, but only for the purpose of enabling them to be given the care or treatment specified above in section D of this form, which is provided under the MCA 2005. E2 The duration of this Urgent Authorisation Important note: The day on which the Urgent Authorisation is given counts as the first of the days. For example, if an Urgent Authorisation is given for seven days at 11.30pm on Monday 3rd, it will expire at midnight on the following Sunday 9th. This Urgent Authorisation comes into force immediately once you sign and date this form and can last for up to seven days. It is to be in force for a period of: This Urgent Authorisation will expire at midnight on: The Standard Authorisation is required from the following day (Insert number of) DAYS E3 – Please indicate which situation applies:‐ In all cases it must be likely that the person will meet all of the qualifying requirements for a Standard Authorisation. Tick one of the boxes below (A‐ G) Boxes A‐D relate to people who are not currently subject to a standard authorisation A As the person is already accommodated here and being deprived of their liberty I have given an Urgent Authorisation, pending the outcome of the Standard Authorisation assessment process. B The person is already accommodated here but is not yet being deprived of their liberty, however, during the next 28 calendar days; it is likely that we will need to do so. Deprivation of Liberty Safeguards Policy v2.1 26
C The person is not yet accommodated here but when admitted during the next 28 days will be deprived of their liberty. D A Court of Protection order is about to expire. The person is already accommodated here and being deprived of their liberty, which the Court of Protection has authorised. However, given the date on which the Court’s order is expected to expire, it would be unreasonable to delay any longer requesting a Standard Authorisation. E None of the above applies. However it is likely that the person will need to be deprived of their liberty and will meet all of the requirements for a Standard Authorisation. Boxes E‐G relate to people who are currently subject to a Standard Authorisation E The existing authorisation is due to expire and it is reasonable to request that a new Standard Authorisation comes into force immediately. F There is a change in the place where the person is deprived of their liberty, we therefore require a new Standard Authorisation that authorises their deprivation of liberty here. G A part 8 review has been requested or is in progress. Any new Standard Authorisation that is now given will be in force after the existing authorisation comes to an end. Part F: Information about interested persons F1 Information about key family members and friends Name Anyone named by the person as someone to be consulted about their welfare Anyone engaged in caring for the person or interested in their welfare Address Postcode Telephone Name Address Postcode Telephone Name Any Donee of a Lasting Power of Attorney granted by the person Address Postcode Telephone As anybody undergoing the DoLS process must have a representative, if you have not identified anyone above, the Supervisory Body will instruct an IMCA. F2 Information about key professionals Name Deprivation of Liberty Safeguards Policy v2.1 27
Social Care Staff (e.g. Social Worker, Care Manager, Assessing Officer) Health Staff (e.g. named nurse, CPN, Consultant) Any Deputy appointed for the person by the Court of Protection Postcode Telephone Name Address Postcode Telephone Name Address Address Postcode Telephone F3 Whether there is a valid and applicable advance decision
Tick box A, B or C below A The person has made an advance decision that may be valid and applicable to some or all of the treatment. B As far as I am aware the person has not made an advance decision that may be valid and applicable to some or all of the treatment. C The proposed deprivation of liberty is not for the purpose of giving treatment. Part G: Mental Health Act 1983 regimes The person is subject to the following Mental Health Act 1983 regimes (The Hospital Treatment, Community Treatment and Guardianship regimes are defined in paragraphs 8 to 10 of Part 2 of Schedule 1A to the Mental Capacity Act 2005.) Only tick box A, B or C below if any of those options apply, otherwise leave the boxes blank A Hospital Treatment regime (under Mental Health Act 1983) B Community Treatment regime (under Mental Health Act 1983) C Guardianship regime (under Mental Health Act 1983) PART G: Other information that should be provided if it is available to, or could reasonably be obtained by, the Managing Authority. G1 Relevant medical information Any information relating to the person’s health that you consider relevant to the deprivation of their liberty Deprivation of Liberty Safeguards Policy v2.1 28
Deprivation of Liberty Safeguards Policy v2.1 29
Diagnosis of the mental disorder The disorder or disability of the mind that the person is suffering from. E.g. learning disability, dementia, brain injury etc. G2 Relevant care plans or needs assessments The following relevant care plans and/or needs assessments are attached: G3 G4 Other information that is relevant: Eg. dates of admission to care, where the person was admitted from, brief social care history, were they subject to the DoLS elsewhere? Deprivation of Liberty Safeguards Policy v2.1 30
Signed (on behalf of Managing Authority) Date and Time Signature Print Name Position / Job Title Date Time PART H — RECORD THAT THE DURATION OF THIS URGENT AUTHORISATION HAS BEEN EXTENDED This part of the form must be completed if the duration of the urgent authorisation is extended by the Supervisory body. Do not complete this part of the form in any other circumstances. Simply leave it blank. H1 DETAILS OF ANY EXTENSION The duration of this urgent authorisation has been extended by the supervisory body. Enter number of days in the box below The period specified must not exceed seven days Deprivation of Liberty Safeguards Policy v2.1 31
It is now in force for a FURTHER This urgent authorisation will now expire at the end of the day on: DAYS H2 PROVIDING COPIES OF ANY EXTENSION As soon as practicable after signing this form below, the managing authority will give copies of this amended form to: (a) the person to whom the urgent authorisation relates (b) any section 39A IMCA acting for them. Signed (on behalf of Managing Authority) Date and Time Signature Print Name Position / Job Title Date Time Deprivation of Liberty Safeguards Policy v2.1 32
Appendix 4 Deprivation of Liberty Letter 1
Letter to managing authority concerning unauthorised deprivation
of liberty
Sender’s address
Contact telephone number
Date
Name and address of managing authority
Dear Sir/Madam
Re [name of person/resident]
I am writing to you about the above-named person, who is accommodated
in your hospital/care home [delete as applicable].
I am the person’s [state relationship or interest in the matter, e.g. ‘child’,
‘friend’, ‘representative’, etc].
It appears to me that this person lacks capacity to consent to the
arrangements made for their care or treatment and is subject to
an unauthorised deprivation of liberty. I am therefore writing, in
accordance with the provisions of the Mental Capacity Act 2005, to
ask you to give an urgent deprivation of liberty authorisation and to
request a standard authorisation from the supervisory body.
My reasons for believing that this person is subject to an unauthorised
deprivation of liberty are that …. [briefly state reasons]
As I am sure you know, if you do not request a standard authorisation within
a reasonable period, I may ask the supervisory body to decide whether or
not there is an unauthorised deprivation of liberty.
Thank you for your consideration of this matter.
Yours faithfully
Signature
Name of sender in block capitals
Notes
The use of this letter is not mandatory. However, any oral or written request
should include the information in bold in the above letter.
Deprivation of Liberty Safeguards Policy v2.1 33
Appendix 5 Deprivation of Liberty Safeguards Policy v2.1 34
Deprivation of Liberty Letter 2
Letter to supervisory body concerning unauthorised deprivation of liberty
Sender’s address
Contact telephone number
Date
Name and address of supervisory body
Dear Sir/Madam
Re [name of person/resident]
I am writing to you about the above-named person who is accommodated
in [Name and address of hospital or care home].
I am the person’s [state relationship or interest in the matter, e.g. ‘child’,
‘friend’, ‘representative’, etc]
On [enter date], I wrote to/spoke with the managing authority of the
[name of hospital or care home]. I informed them that it appeared to
me that this person lacked capacity to consent to the arrangements
made for their care or treatment and was subject to an unauthorised
deprivation of liberty. I asked them to give an urgent deprivation
of liberty authorisation and to request a standard authorisation, in
accordance with the provisions of the Mental Capacity Act 2005.
My reasons for believing that this person is subject to an unauthorised
deprivation of liberty are that …. [briefly state reasons]
I understand that the managing authority has not requested a
standard authorisation.
I am therefore writing to make a formal request that you now decide
whether or not this person is subject to an unauthorised deprivation
of liberty.
Thank you for your consideration of this matter.
Yours faithfully
Signature
Name of sender in block capitals
Notes
The use of this letter is not mandatory. However, any oral or written request
should include the information in bold in the above letter.
Deprivation of Liberty Safeguards Policy v2.1 35
Appendix 6
Guidance on the use of the Mental Health Act 1983 v Mental Capacity Act 2005 This guidance is intended to be generic guidance on the issue of which regime will be more appropriate for patients residing on the Cragside Ward at the Queen Elizabeth Hospital, Gateshead. This is not intended to provide specific advice on any individual matter but is intended to give an overview of the legal position as of 1st July 2014. This advice relates to patients on the Cragside Ward who have significant cognitive impairment and lack the capacity to make decisions about their treatment. They are being treated for mental health conditions while on the Cragside Ward. It is sometimes not immediately apparent whether patients are to be detained under the Mental Health Act 1983 (“MHA”) or under the Deprivation of Liberty Safeguards set out in the Mental Capacity Act 2005 (“MCA”). This paper will discuss how to determine the appropriate regime for these patients. The recent case of AM v South London and Maudsley NHS Foundation Trust and the Secretary of State for Health [2013] UKUT 0365 (AAC) looks at the interface between the MHA and the MCA. When determining whether the MHA or MCA should be used where the person required assessment or treatment is an in patient in a psychiatric hospital where they might be deprived of liberty this case stated that there were 3 questions to consider. 1.
Does the person have capacity to consent to admission as an informal patient? 2.
Might the hospital be able to rely on the provisions of the MCA to lawfully assess or treat the person? 3.
If there is a choice between reliance on the MHA and the MCA which is the least restrictive way of best achieving the proposed assessment or treatment? In relation to the first heading we understand that all patients on the Cragside Ward lack capacity. In relation to the second point there are 2 considerations which need to be had. The first is whether the person will comply with all of the elements of what is being proposed taking into account the degree of compliance, the risks of non compliance and what might trigger them. A non compliant incapacitated mental health patient would usually be inelligible to be deprived of their liberty under the MCA under the provisions of Case E in the table in Schedule 1A of that Act. This relates to a patient who is within the scope of the Mental Health Act but not subject to any of the mental health regimes. A patient is inelligible if they meet the criteria for an Application for admission under Section 2 or Section 3 of the MHA and object to being admitted to hospital or to some or all of the treatment they will receive there for their mental disorder. Secondly, it is relevant if the person is or is likely to be confined in a particular restrictive space for a not negligible time. This is the definition of a deprivation of liberty and the relevant test is the acid test as set out in the Cheshire West decision ie if the patient is under the constant control and supervision of the hospital and is not permitted to leave the ward. The proceeding 2 points will assist in determining whether the hospital is able to rely on the provisions of the MCA to lawfully assess or treat the person. In relation to the third point consideration is needed as to the least restrictive way of best achieving the proposed assessment or treatment. In the AM case the Judge said that although an authorisation under the DOLS will not inevitably be less restrictive the perception of many is that detention under the MHA carries a stigma and this supports the view that generally it will be more restrictive than an authorisation of a deprivation of liberty under DOLS and an authorisation under Deprivation of Liberty Safeguards Policy v2.1 36
the DOLS can, where appropriate, be made under conditions that would render it less restrictive. The decision maker must consider the actual availability of the MCA regime and compare its impact if it was used with the impact of detention under the MHA. This decision involves taking a very fact sensitive approach and therefore it is very difficult to give specific legal advice in relation to a general situation. However, the above sets out the thought processes which case law has set out must be undertaken in deciding the appropriate regime. It is recommended that all AMHPS and doctors making medical recommendations under the MHA have as good an understanding as is possible of the DOLS process and in particular the Mental Capacity Act Schedule 1A. The key point is finding the least restrictive way of best achieving the objective and this will very much depend on the circumstances and proposed care regime of each individual patient. Deprivation of Liberty Safeguards Policy v2.1 37