briefing MARCH 2009 ISSUE 175 Mental Capacity Act 2005 Deprivation of Liberty Safeguards Key points The introduction of the Mental Capacity Act 2005 Deprivation of Liberty Safeguards (MCA DOLS) is a welcome move towards better protecting the rights of vulnerable individuals in hospitals and care homes. Implementing them may be challenging because the definition could be difficult to interpret and the numbers of affected people hard to predict. Care homes, local authorities, primary care trusts (PCTs), NHS trusts, independent hospitals and others need to be working now to finalise their preparations for implementation in April 2009. The Department of Health has provided comprehensive guidance to help organisations through the process, including a useful implementation tool and a Code of Practice. The Mental Health Act 2007 updated existing mental health legislation and was used as a vehicle for introducing the deprivation of liberty safeguards into the Mental Capacity Act 2005. The new safeguards will provide a framework for the lawful deprivation of liberty of those people who lack capacity to consent to arrangements made for their care or treatment in either a hospital or care home, and who need to be deprived of liberty in their own best interests to protect them from harm. This Briefing explains what the new safeguards mean for PCTs, NHS trusts and others, and sets out what they should be doing to get ready for implementation in April 2009. Background The Mental Capacity Act 2005 Deprivation of Liberty Safeguards (MCA DOLS) are a response to a European Court of Human Rights (ECtHR) judgement in October 2004, the case of HL v UK. The court found that a man with autism and a learning disability, who lacked the capacity to decide about his residence and medical treatment, and who had been admitted informally to Bournewood Hospital, was unlawfully deprived of his liberty in breach of Article 5 of the European Convention on Human Rights (ECHR). The MCA DOLS remedy the breach of the ECHR and are a big step towards better protecting the rights of vulnerable individuals in hospitals and care homes. They will make a big difference to the people in care who have no or limited choice about their life. However, there is no doubt that implementing the safeguards will be challenging for care homes, PCTs, NHS Supported by Produced in association with
Following the criteria set out in the MCA DOLS means that any decision to make a deprivation of liberty can be made lawfully and properly trusts and others, not least because the definition of who the safeguards apply to and when may initially be difficult to judge. Organisations need to be working now to make sure they have estimated the numbers of people and staff affected and put training programmes in place. Who the safeguards apply to In the main, the people covered by the safeguards will be those with severe learning disabilities, older people with one of a range of dementias, or people with neurological conditions such as brain injuries. The safeguards only apply to those people not covered by the Mental Health Act 1983. The safeguards apply to people in hospitals, and independent hospitals and care homes registered under the Care Standards Act 2000, whether they have been placed there by a PCT, a local authority or through private arrangements. The MCA DOLS apply to people in hospitals and care homes who meet all of the following criteria. A person must: be aged 18 or over Key terms in the MCA DOLS legislation have a mental disorder such as dementia or a learning disability Supervisory body: this refers to PCTs and local authorities. Managing authority: this is the person or body with management responsibility for the hospital or care home in which a person is being, or may be, deprived of liberty. Standard : this permits lawful deprivation of liberty and is issued by a supervisory body. Urgent : this permits lawful deprivation of liberty and is issued by a managing authority for a maximum of seven calendar days, while a standard process is undertaken. Relevant person: this is the person who needs to be deprived of liberty. Relevant person s representative: this is the person who represents the relevant person. Best interests assessor: this is the person who assesses whether or not deprivation of liberty is in the person s best interests, is necessary to prevent harm to the person and is a proportionate response to the likelihood and seriousness of that harm. Independent Mental Capacity Advocate (IMCA): this is the person who provides support and representation for a person who lacks capacity to make specific decisions, where the person has no one else to support them. The IMCA service was established by the MCA and is not the same as an ordinary advocacy service. lack capacity to consent to arrangements made for their treatment and/or care need to have their liberty taken away in their own best interests to protect them from harm. Implementing the new safeguards Following the criteria set out in the MCA DOLS means that any decision to make a deprivation of liberty can be made lawfully and properly. Specifically MCA DOLS: prevent arbitrary decisions that deprive people who lack capacity of their liberty provide people who are deprived of liberty with representatives to advocate on their behalf provide people who are deprived of liberty with rights of appeal against unlawful detention. Based on existing case law, courts have considered that the following factors are relevant when considering whether or not a person is being deprived of their liberty: restraint is used, including sedation, to admit a person to an institution where that person is resisting admission staff exercise complete and effective control over the care and movement of a person for a significant period staff exercise control over s, treatment, contacts and residence a decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate 02
a request by carers for a person to be discharged to their care is refused the person is unable to maintain social contacts because of restrictions placed on their access to other people the person loses autonomy because they are under continuous supervision and control. Timings and transitional arrangements and process. Under the MCA DOLS, the managing authority must apply to their PCT or local authority for a deprivation of liberty if they believe they can provide adequate care for a person only in circumstances that amount to a deprivation of liberty. There are two types of : standard and urgent. Standard s can be issued by supervisory bodies only From 1 May 2009 all s required for a standard must be completed within 21 calendar days if the six statutory s indicate the need to do so. Standard s will be the most common type of. Wherever possible, they must be applied for in advance of a person being deprived of liberty and only after rigorous care planning The MCA DOLS come into force on 1 April 2009 but transitional arrangements are in place for the first month to help alleviate the anticipated extra administrative pressures and ensure a smooth transition. Where managing authorities request a standard on or before 30 April, all s must be completed within 42 calendar days, beginning on the date the supervisory body receives the request. Where a managing authority decides to give an urgent on or before 30 April, the period of the must not exceed 21 calendar days. From 1 May 2009 all s required for a standard must be completed within 21 calendar days and managing authorities may give themselves an urgent for an initial period of no more than seven calendar days (except in exceptional circumstances). Roles and responsibilities The MCA DOLS make it lawful for a person to be deprived of their liberty, based on a rigorous, standardised Getting ready for the new safeguards: key issues for PCTs To make sure they are ready for the implementation of the safeguards in April 2009, primary care trusts and local authorities need to: estimate the numbers of s likely in 2009/10 estimate the number of (and identify) best interests assessors secure best interests assessor training places estimate the number of (and identify) mental health assessors estimate the number of mental health assessors likely to train online or face to face estimate the number of IMCAs required and secure training places commission, tender or contract IMCAs and representatives identify systems for securing s and granting s, and identify numbers of (and types of) support personnel required within supervisory bodies identify and timetable any actions required by boards and elected members raise awareness and brief all affected staff in supervisory bodies and managing authorities. It is vital that both supervisory bodies and managing authorities plan ahead, ideally jointly, to ensure they are well prepared to implement the new arrangements from 1 April 2009. The DH has developed a user-friendly implementation tool for local Mental Capacity Act implementation networks to use to estimate the number of s and staff that are likely to be required in 2009/10. Funding has been provided to PCTs and local health boards for MCA DOLS and it is important to make sure this funding is identified and kept aside in budget lines. 03
MCA DOLS s will be carried out by a minimum of two assessors, specifically a mental health assessor and a best interests assessor methods have indicated that less restrictive measures cannot meet the person s needs. A standard can last for up to 12 months, but deprivation of liberty should last only for as long as is necessary. Where there is a need to deprive someone of their liberty immediately in their own best interests to protect them from harm, managing authorities can issue urgent s, valid for a maximum of seven calendar days. When issuing an urgent, managing authorities must, if they have not already done so, simultaneously apply to their supervisory body for a standard to be issued within the period of the urgent. If there are exceptional reasons for doing so, a supervisory body may extend the duration of an urgent by up to seven calendar days. The relevant PCT or local authority (the supervisory body) will be responsible for overseeing the MCA DOLS at a local level. It is their role to commission and co-ordinate the process and also appoint assessors. In addition, they are responsible for granting s and appointing a relevant person s representative for all people issued with a deprivation of liberty. In some cases, a single organisation will be both the supervisory body and managing authority. This does not prevent it from acting in both capacities but the regulations specify that, in such a situation, the best interests assessor cannot be an employee of the supervisory body/managing authority, or be providing services to it. Identifying assessors MCA DOLS s will be carried out by a minimum of two assessors, specifically a mental health assessor and a best interests assessor. These assessors must be different people. As supervisory bodies, PCTs and local authorities will be responsible for appointing assessors and ensuring they are properly trained. In England, regulations made under the MCA DOLS set out the eligibility requirements for assessors. These stipulate that assessors must: have an applied knowledge of the Mental Capacity Act 2005 and its Code of Practice be proficient in record keeping with the ability to write clear and reasoned reports. Regulations also require that the mental health assessor is a Section 12 doctor or a registered medical practitioner who the supervisory body is satisfied has at least three years post-registration experience in the diagnosis or treatment of mental disorder. Best interests s must be undertaken by a person who is an approved mental health professional or a suitably qualified social worker, first level nurse, occupational therapist or chartered psychologist. Training The supervisory body must be satisfied that mental health and best interests assessors have successfully completed training approved by the Secretary of State. For mental health assessor training, the supervisory body must use training programmes run by the Royal College of Psychiatrists. For best interests assessors, the supervisory body must use any university approved by the General Social Care Council to provide social work mental health or adult post-qualifying training. Code of Practice The Government has published a comprehensive Code of Practice that sets out how the MCA DOLS should be used and the processes and procedures required by the legislation. Chapter 2 offers guidance on how to identify when a person is, or is at risk of, being deprived of their liberty and how this can be avoided. The new code supplements the main Mental Capacity Act 2005 Code of Practice and should be used in conjunction with it. The Code includes useful checklists of key points for managing authorities and supervisory bodies, as well as user-friendly flowchart diagrams of the process. It also sets out the role of the relevant person s representative and how managing authorities and supervisory bodies should work with them. The DOL process The application process: key issues for hospitals Managing authorities should have a procedure in place that identifies: whether deprivation of liberty is or may be necessary in a particular case 04
what steps they should take to assess whether to seek whether they have taken all practical and reasonable steps to avoid a deprivation of liberty what action they should take if they do need to request an how they should review cases where is or may be necessary who should take the necessary action. A managing authority must apply for a standard in writing to the supervisory body. When the application is being made by a hospital, it should be sent to: the PCT, if care is commissioned by the PCT the PCT for the area in which the hospital is situated if care is commissioned privately. A managing authority must apply for a standard in writing to the supervisory body In Wales, the application should be sent to the relevant local health board. See the Code of Practice for more detailed information about the application process. Overview of the deprivation of liberty safeguards process Hospital or care home managers identify those at risk of deprivation of liberty and request from supervisory body Age Mental health Assessments commissioned by supervisory body. IMCA instructed for anyone without representation Mental capacity Best interests No refusals Eligibility In urgent situations, a hospital or care home can give an urgent for seven days while obtaining a standard Authorisation expires and managing authority requests further s Any says no All s support Request for declined Best interests assessor recommends period for which deprivation of liberty should be authorised Best interests assessor recommends person to be appointed as representative Authorisation is given and person s representative appointed Authorisation implemented by managing authority Person or their representative applies to Court of Protection, which has powers to terminate or vary conditions Managing authority requests review because circumstances change Person or their representative requests review Review 05
A deprivation of liberty should last for the shortest period possible Court of Protection The Mental Capacity Act 2005 deals with issues relating to people who lack capacity to make decisions and introduced the new Court of Protection, which came into being in October 2007. If a person, or their representative, does not agree with the decision to deprive them of their liberty, the new system gives them the right to appeal against the decision in the Court of Protection. This provides a forum for solving problems relating to the Mental Capacity Act 2005 and gives people the right of appeal in MCA DOLS cases to ensure compliance with the rulings of the ECtHR. The actual A supervisory body is required to arrange for s to be undertaken to establish whether or not the qualifying requirements of the safeguards are met and that issuing a standard is appropriate. Those s are on: age no refusals mental capacity mental health eligibility best interests. As soon as the supervisory body has confirmed the standard request should be pursued, it must obtain the relevant s to find out whether the qualifying requirements are met. The supervisory body will be legally responsible for selecting suitable and eligible assessors, and for the completion of s within 21 calendar days for standard s, or before the urgent expires. If all the s in the standard process indicate that the relevant person meets all the qualifying requirements, the supervisory body will give a deprivation of liberty. However, if any of the qualifying requirements are not met, different actions will be necessary, depending on the circumstances of the individual case. See the Code of Practice for further guidance. Advocacy Regulations state that IMCAs must undertake training in order to act as MCA DOLS IMCAs. Action for Advocacy a central point of information on independent advocacy has been commissioned by the DH to provide free two-day training courses for organisations that have existing contracts to provide IMCA services. The two-day training course is designed to give IMCAs the knowledge and skills to undertake the three new IMCAs roles associated with the new safeguards. The course will cover: identifying when a person may have been deprived of liberty understanding the deprivation of liberty safeguards and the different IMCA roles guidance on how IMCAs could represent individuals for the six s and communicate with the assessors. Reviewing MCA DOLS A deprivation of liberty should last for the shortest period possible. The Code of Practice contains comprehensive information about the process for reviewing authorised deprivations of liberty, including the statutory grounds for requesting a review. The managing authority has a duty to monitor the case but the supervisory body is responsible for reviewing standard s. If the review determines that any of the qualifying requirements are not met, the must be terminated. If the s illustrate that deprivation is still necessary, the supervisory body must consider whether the conditions attached to the need to be amended. If a standard comes to an end, with no fresh replacing it, or a review concludes that an should terminate, the person should cease to be deprived of their liberty immediately. It would be unlawful to continue to deprive someone of their liberty, leaving the managing authority open to legal challenge. Short-term suspensions of an It is possible to suspend an for a period of up to 28 days. This may be necessary because the relevant person is, for example, detained in hospital under the Mental Health Act 1983. Supervisory bodies are responsible for suspending s and removing those suspensions when notified by managing authorities of the need to do so. See the Code of Practice for details. 06
Regulations and monitoring In order to provide reassurance that the safeguards processes are being correctly operated, it is important there is an effective mechanism for monitoring the implementation of the safeguards. The Care Quality Commission, bringing together functions from the existing Commission for Social Care Inspection, the Healthcare Commission and the Mental Health Act Commission, will have the responsibility for the inspection process of the operation of the MCA DOLS in England. The Care Quality Commission will be fully operational by 2009/10, in line with the deprivation of liberty safeguards coming into force. In Wales, the functions of monitoring the operation of the MCA DOLS will fall to Welsh ministers. These functions will be performed on their behalf by Healthcare Inspectorate Wales and the Care and Social Services Inspectorate Wales. Draft proposals for the regulations for England have recently been consulted upon: Mental Capacity (Deprivation of Liberty: Monitoring and Reporting) and (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) (Amendment) Regulations 2009. The draft regulations confer power on the Care Quality Commission for the purpose of monitoring, and reporting on, the MCA DOLS. It is proposed that the inspection bodies for care homes and hospitals will monitor the manner in which the safeguards are being operated by: visiting hospitals and care homes interviewing people in hospitals and care homes requiring the production of, and inspecting, relevant records relating to the care or treatment of people in hospitals and care homes providing an annual report. In England this report will be made to the Secretary of State for Health, and in Wales the report will be made to the Welsh ministers. It will be for each monitoring body to decide whether there should be a MCA DOLS specific report or whether the report should form part of a wider report on the monitoring body s activities. Confederation viewpoint Implementing the new safeguards is a welcome move and we will be delighted to see them finally up and running. There is no doubt that they are a huge step towards better protecting the rights of vulnerable individuals in hospitals and care homes and will make a big difference to the people in our care who have no or limited choice about their life. However, we know that implementing them is going to be challenging for care homes, PCTs, NHS trusts and others. The definition of who the safeguards apply to could be difficult to interpret and the number of individuals affected is not easy to predict. The transitional provisions during April will allow extra time for both urgent and standard s to be undertaken, particularly as there will be a Implementing the new safeguards is a welcome move and we will be delighted to see them finally up and running huge learning curve for all the organisations affected. This learning curve may be bigger for some, such as those organisations working in more acute healthcare environments that do not care for or treat these very vulnerable people on a daily basis in the way that mental health and learning disability trusts do. All hospitals and care homes need to be adapting their care planning processes to consider whether a person can consent to the services which are to be provided, and whether the actions they are taking are likely to result in a deprivation of liberty. Furthermore it is essential that organisations work closely to manage transfers of care between health and social care settings wherever possible. While the transitional provisions are welcome, it is important that trusts are as ready as possible to implement MCA DOLS from 1 April. Boards need to make sure that work is being done now to estimate the numbers of s likely to be required in 2009/10, as well as the number of best interests and mental health assessors they will need and their training requirements. By now work should also be underway to commission independent mental capacity advocates and paid and professional representatives. The DH s implementation tool will be helpful in getting this done in good time. 07
Further information The DOLS Code of Practice www.dh.gov.uk/en/publicationsandstatistics/publications/publicationspolicyandguidance/dh_085476 Implementation tool www.dh.gov.uk/en/publicationsandstatistics/publications/publicationspolicyandguidance/dh_084204 Guidance is available to support health and social care providers fulfil their statutory obligations, including: Deprivation of Liberty Safeguards: A guide for primary care trusts and local authorities www.dh.gov.uk/en/publicationsandstatistics/publications/publicationspolicyandguidance/dh_094347 Deprivation of Liberty Safeguards: A guide for hospitals and care homes www.dh.gov.uk/en/publicationsandstatistics/publications/publicationspolicyandguidance/dh_094348 Deprivation of Liberty Safeguards: A guide for relevant person s representatives www.dh.gov.uk/en/publicationsandstatistics/publications/publicationspolicyandguidance/dh_094346 Making Decisions: The Independent Mental Capacity Advocate (IMCA) service www.dh.gov.uk/en/publicationsandstatistics/publications/publicationspolicyandguidance/dh_073932 Regulations and assessor training www.dh.gov.uk/en/socialcare/deliveringadultsocialcare/mentalcapacity/mentalcapacityactdeprivationof LibertySafeguards/DH_084948 Advocacy www.actionforadvocacy.org.uk The Mental Health Network The Mental Health Network was established as part of the NHS Confederation to provide a distinct voice for mental health and learning disability service providers. We aim to improve the system for the public, patients and staff by raising the profile of mental health issues and increasing the influence of mental health and disability providers. The NHS Confederation is the only independent membership body for the full range of organisations that make up today s NHS. Its ambition is a health system that delivers first-class services and improved health for all. As the national voice for NHS leadership, the NHS Confederation meets the collective needs of the whole NHS as well as the distinct needs of all of its parts through its family of networks and forums. The Mental Health Network is one of these. To find out more about the Mental Health Network, visit www.nhsconfed.org/mental-health or email mentalhealthnetwork@nhsconfed.org Further copies can be obtained from: NHS Confederation Publications Tel 0870 444 5841 Fax 0870 444 5842 Email publications@nhsconfed.org or visit www.nhsconfed.org/publications NHS Confederation 2009. This document may not be reproduced in whole or in part without permission. Registered Charity no: 1090329 BRI017501 The NHS Confederation 29 Bressenden Place London SW1E 5DD Tel 020 7074 3200 Fax 0870 487 1555 Email enquiries@nhsconfed.org www.nhsconfed.org When you have finished with this briefing please recycle it