Management Briefing following Cheshire West

Report
SAFEGUARDING CONFERENCE
Deprivation of Liberty Safeguards
post Cheshire West
Amy Owen-Davis
Solicitor, Leicester City Council
Introductions
• What is DOLS?
The Deprivation of Liberty Safeguards (DoLS) is a
process prescribed in law, as being required for
safeguarding vulnerable adults who have been
identified as lacking the capacity to consent to
where they reside, for the purpose of care
and/or treatment they receive that may be
depriving them of their liberty.
European Convention
on Human Rights
• Article 5 - No-one shall be deprived of his
liberty save in accordance with a procedure
prescribed by law.
• Article 5(4) – Everyone who is deprived of his
liberty shall be entitled to take proceedings by
which the lawfulness of his detention shall be
decided speedily
• Article 8 – Everyone has the right to respect
for his private and family life.
MCA - Best Interests
• Any acts done for a person lacking mental
capacity should be done in their “best
interests”
• Consideration should be given as to whether
the desired outcome an be achieved in a less
restrictive way
Plugging the Bournewood Gap
Interface between MCA and MHA
• MHA - Admission for assessment and treatment
• Patient detained and treated when sectioned
• Review and appeals system available via Mental Health
Tribunals
PROBLEM –
• People who lack capacity do not fall within the Mental
Health Act
• Cannot consent to treatment or residential care
• No avenue for review of detention under MCA
DoLS in light of Cheshire West
 Judgement handed down by Supreme Court 19th March
2014
1. Background:
-
In both P v Cheshire West Council and P and Q v Surrey
County Council (MIG and MEG) the Court of Appeal had
decided that neither P nor MIG and MEG were deprived
of their liberty. The decisions were appealed and heard
in the Supreme Court late last year.
2. Factual basis
- Outline
Supreme Court:
- Lady Hale gave leading Judgement:
- “A gilded cage is still a cage”
• The ‘Acid Test’
 Is the person under complete and effective control in
respect of their care and movements?
 And not free to leave without permission?
Fallout:
• Fundamental shift in determining if there is a
deprivation of liberty
• Likely to be thousands of people who were not
considered to be subject to a deprivation who will
now be deprived of their liberty
• Deprivations to be authorised
• Applications will be tenfold, LA’s and the Court alike
will struggle to manage the vast number
• A – Is the person objectively deprived of their
liberty? Apply the Acid Test – Both factors must be
present.
• B – Does the person have capacity to consent to
the deprivation?
• C – Are the care arrangements attributable to the
state?
• D – If the person does not have capacity to
consent to a state arranged deprivation of liberty,
how can the deprivation be authorised?
Authorisation:
- Three categories:
1. Adult in Care home of Hospital
- Standard Authorisation under provisions of Schedule A1 to Mental Capacity Act 2005
- Vince Duffy – DoLS Team Leader
2. Adult Placement other than in a care home of hospital (supported living, Shared Lives, own
home etc.)
- Authorisation via application to Court of Protection
3. Children (16+ in own home, residential care, with family members or foster care etc.)
- DoLS regime cannot be used for those under 18 years
- CoP can authorise a deprivation of those from the age of 16
- Prior to Judgement in March (February 2014) Guidance from President of CoP and Ofsted http://www.familylaw.co.uk/system/uploads/attachments/0008/3681/Joint_Guidance_re_D
OLS_2014.pdf stated: Orders of the Court of Protection authorising a deprivation of liberty by
non-secure children’s homes or residential special schools should not be sought or made and
they should not be advanced or relied on to permit such home and schools to act in breach of
the Regulations that apply to them
- Further guidance?
DOLS Regime - People involved
Managing Authority- Responsible
for care & requesting DoLS
Supervisory Body – Responsible for
assessing the need for authorising a DoLS
Relevant Person – Person
being deprived of liberty
Family – Consulted, involved
& provided with information
Assessors – BIA & MHA
Responsible for undertaking
all 6 assessments
May also include:
- Allocated worker
- IMCA
- Friends/carers
- Independent
representative
11
Assessments Required
• Age assessment (form 5, or part H of form 10) – To confirm the relevant
person is 18 or over, as DoLS only applies to 18+.
• No refusals assessment (form 8) - To confirm that a DoLS authorisation would
not conflict with any other existing authority for decision making for the
person.
• Mental capacity assessment (form 7) – To establish if the person lacks
capacity to decide whether they should be accommodated in the relevant
hospital/care home for care/treatment.
• Mental Health Assessment (form 6) - To establish the person has a mental
disorder as defined by the MHA1983.
• Eligibility assessment (form 9) – Check if person is subject to a section under
the Mental Health Act 1983.
• Best interests assessment (form 10) – To establish whether a deprivation of
liberty is occurring or likely to occur.
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COURT OF PROTECTION
ADASS Prediction on CoP applications:
• In 2013/14 - 212 applications
• Prediction for 2014/15 - 28,500 applications
• Increase continues for 2015/16 - 31,500 applications
Figures don’t include annual reviews to be carried out by
the court.
• Neary case – duty to take the lead
• But COP applications can be made by anyone!
Issues from the bulk applications
on 5 and 6th June
• Brought by Cornwall County Council and
others ie CCGs, Official Solicitor, Patients
groups, ADASS, Department of Health, Law
Society - approx 18-20 barristers present!
• Application made for urgent authorisation
under DoLS where the assessments could not
be made in time
DoLS Applications - Court Procedure
 Considered by Lord Justice Munby:
- Must be judge, not court officer
- Determination made on papers but right to request speedy
review
- Certain ‘triggers’ outlined for oral hearing
- Evidence required determined ‘streamlined’– medical
evidence, succinct focussed statement
- P does not need to be a party
- CoPR 2007, Practice Directions and Forms need revising
 Further guidance awaited
COP – Witness Statement
• Who, What, Where, When, Why, etc.
• Chronology – useful but use your own words are better
Essential to cover:
• diagnosis/why/how known to adult services
• capacity assessment
• proposed actions
• best interests
• consultation with relevant persons
• the dispute
• action taken to resolve the dispute
• what order you want the court to make
Any Questions??
Amy Owen-Davis, Solicitor
Leicester City Council

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