Deprivation of Liberty (DoLs) Policy and Procedure

Deprivation of Liberty (DoLs) Policy and Procedure See also: Mental Health Act Policies and Procedures Consent to Examination and Treatment Policy and Procedures Located in the following policy folder on the Trust Intranet Clinical Policies and Procedures Clinical Policies and Procedures Service area Issue date Issue no. Review date Trust wide April 2015 1 April 2018 Ratified by Ratification date Responsibility for review: Quality Committee March 2015 Quality Committee Document published on the Trust Intranet under: Clinical Policies and Procedures Did you print this document? Please be advised that the Trust discourages retention of hard copies of policies and can only guarantee that the Policy on the Trust Intranet site is the most up-to date version

Checklist for s Name / Title Aim of Policy Deprivation of Liberty (DoLs) Policy and Procedures There is a statutory requirement to comply with the Mental Capacity Act and the Mental Health Act Code of practice which has recently been updated and contains a chapter on the interface between the Mental Health Act and the Mental Capacity Act. Working name/title of the policy/procedure Brief summary of main aim of the policy Sponsor Dr John Sykes, Medical Director Name and job title of person taking through approval and signing off Author(s) Name of policy being replaced Dr Christine Taylor, SPR Lisa Stone, SLM Kate Sargeson, Divisional Nurse Bev Smith, Senior Nurse Band 6 Nurse Group, Older Peoples Services NA Version No of previous policy: Job titles of those involved in producing the document Name and version number of the previous policy this replaces (If applicable) Reason for document production: Commissioning individual or group: The CQC report Monitoring the use of the Mental Health Act Deprivation of Liberty Safeguards 2013/14 has found poor knowledge of the Act by providers leading to poor application and breaches of the Act. The Quality Committee is asked to ratify the enclosed Policy and Guidance Note which will form the basis for further informing our staff/training and clinical audit standards. Quality Committee Individuals or groups who have been consulted: Date: Response Version control (for minor amendments) Date Author Comment Page 1 of 18

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s Table of contents 1. Introduction... 4 1.1 Purpose of policy... 4 1.2 Definitions... 4 1.3 Scope of policy... 4 1.4 Principles... 4 2. Policy Statement... 5 3. Duties... 6 3.1 Senior Nurses... 6 3.2 Ward Staff... 6 4. Procedure... 7 4.1 What is a deprivation of liberty?... 7 4.2 DoLS or Mental Health Act (MHA) 1983?... 7 4.3 Least restrictive principle... 8 4.4 The Safeguards... 8 4.5 Standard authorisations... 9 4.6 Urgent authorisation... 9 4.7 Notifying the Supervisory Body (the Local Authority) of a change... 10 4.8 Standard forms and DoLS Office Contact Details... 10 4.9 Transfers... 11 5. Reference documents... 11 6. Appendices... 11 Appendix A - List of standard forms for managing authority and supervisory body... 13 Appendix B - Overview of deprivation of liberty safeguards process (flowchart)... 14 UPDATED GUIDANCE NOTES PREPARED BY DR JOHN R SYKES, MEDICAL DIRECTOR, FOLLOWING THE JUDGEMENT OF THE SUPREME COURT P v CHESHIRE WEST AND CHESTER COUNCIL AND ANOTHER P & Q v SURREY COUNTY COUNCIL... 15 Page 3 of 18

s 1. Introduction The Deprivation of Liberty Safeguards (DoLS) was introduced into the Mental Capacity Act 2005 (MCA) via the Mental Health Act 2007. The Deprivation of Liberty Safeguards provide legal protection for those vulnerable people who are, or may become, deprived of their liberty within the meaning of Article 5 of the European Convention of Human Rights in a hospital or care home, whether placed under public or private arrangements. The DoLS provide for a care plan which is so restrictive that it amounts to a deprivation of liberty to me made lawful through standard or urgent authorisation processes. These processes are designed to prevent arbitrary decisions to deprive a person of their liberty. 1.1 Purpose of policy The purpose of this policy is to support staff in the effective implementation of DoLS, to ensure patients rights are upheld and that staff act in the patient s best interests at all times 1.2 Definitions CQC DoLS ECtHR Managing Authority Care Quality Commission Deprivation of Liberty Safeguards European Court of Human Rights For the Purposes of this Policy this means The Trust, via the Ward Manager MCA 2005 Mental Capacity Act 2005 MHA 1983 Mental Health Act 1983 MHA 2007 Mental Health Act 2007 Supervisory Body 1.3 Scope of policy The relevant Local Authority for the Area: Derby City Council, Derby County Council DoLS apply to people Aged 18 years and over Who lack capacity to consent to where their treatment and/or care is given and Are deprived of their liberty in their own best interests They do not apply to people detained under the MHA 1983 1.4 Principles Every effort should be made when providing care or treatment, to prevent a deprivation of liberty. If deprivation of liberty cannot be avoided, it should be for no longer than is necessary Page 4 of 18

The DoLS require that the Managing Authority (i.e. the Trust) must seek authorisation from the Supervisory Body (the Local Authority) in order to be able lawfully to deprive someone of their liberty. A decision as to whether or not deprivation of liberty arises will depend on all the circumstances of the case. It is neither necessary nor appropriate to apply for a deprivation of liberty authorisation for everyone who is in hospital simply because the person concerned lacks capacity to decide whether or not they should be there. There is no single definitive test which can determine whether an individual is being deprived of their liberty but what has to be taken into account is the effect of hospitalisation and any care regimes on this patient. The five key principles of the MCA 2005 apply to DoLS. These must be taken into account when working with, or providing care or treatment for, people who lack capacity. The five key principles are: The presumption of capacity; The right for individuals to be supported to make their own decisions; The right of individuals to make what might be seen as eccentric or unwise decisions; Anything done for or on behalf of people without capacity must be in their best interests, and Anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms. The Trust is committed to ensuring that all people accessing its services are treated with respect and dignity and individuals and their families and carers receive appropriate care and support. This includes consideration of race, age, disability, gender, gender identity, sexual orientation, marriage & civil partnership, pregnancy & maternity and religion & belief. This policy should not impact in any different way on different age groups or on patients declaring a disability, and care should be taken to ensure that the provisions are not operated in a manner that discriminates against particular age group or against patients declaring a disability. Guidelines within this policy in respect of patient s mental capacity apply to all patients. Where a patient may have additional needs related to their religion, disability or any other protected characteristics, staff should consider this when making assessment or decision and accommodate this where possible, recognising that this may require extra resource to facilitate 2. Policy Statement Before applying for an authorisation consideration must be given as to how care and treatment might be provided to avoid depriving someone of their liberty. Page 5 of 18

The Policy will uphold the principles as described in Chapter 1 of the MCA Code of Practice. The Trust will deliver services to patients within the legal framework of the MCA 2005 and in accordance with the MCA Code of Practice and the DoLS Code of Practice. Treatment for a person s mental disorder under the MHA 1983 falls outside the remit of the MCA 2005. 3. Duties 3.1 Senior Nurses Senior Nurses have particular responsibility for identifying patients possibly subject to deprivation of liberty on their wards and if so taking the necessary actions detailed in this policy. Senior Nurses must ensure that all practical steps are taken to ensure that the person understands the effect of the authorisation and their rights around it. This includes their right to challenge the authorisation via the Court of Protection, their right to request a review, and their right to and how to instruct an independent mental capacity advocate (IMCA). This information must be given to the relevant person both orally and in writing and must be available in alternative formats or community languages upon request. This must happen as soon as possible and practical after the authorisation is given. The IMCA Service will meet the diverse needs of patients; this means the cultural, national, racial and/or ethnic background of the relevant person. The Senior Nurse should also monitor whether the relevant person s representative maintains regular contact with the person. 3.2 Ward Staff The Ward Staff are responsible for: checking that standard forms are fully completed, forwarding on the completed forms, where necessary, to the appropriate DoLS assessor team notifying the Mental Health Act Office liaising with the DoLS assessor teams to ensure the sending of all necessary letters and copies of forms to the person deprived of their liberty and appropriate others including the relevant person s representative; maintaining a record of DoLS patients and expiry dates of authorisations reminding clinicians of relevant dates and actions required; keeping files containing copies of all paperwork connected with the person and their deprivation of liberty. Notifying the Care Quality Commission (CQC) of new authorisations. 3.3 All Staff Derbyshire Healthcare NHS Foundation Trust staff visiting or care co-ordinating clients in care homes not by Derbyshire Healthcare NHS Foundation Trust may have responsibility for alerting the Managing Authority (i.e. the management of the care home) of a possible case of deprivation of liberty. Page 6 of 18

4. Procedure A deprivation of liberty must be authorised in accordance with one of the following legal regimes: a DoLS authorisation or Court of Protection order within the MCA 2005 or (if applicable) under the MHA 1983. 4.1 What is a deprivation of liberty? There is no single definition of deprivation of liberty. In 2014 the Supreme Court handed down their judgment in the landmark cases of P v Cheshire West and Chester Council and P and Q v Surrey County Council. The Supreme Court has clarified that there is a deprivation of liberty if: 1. The person is under continuous supervision and control and 2. The person is not free to leave (i.e. would be prevented if they tried to leave) and 3. The person lacks capacity to consent to these arrangements The Supreme Court clarified that factors which are NOT relevant to determining whether or not there is a deprivation of liberty for such people include: 1. The person s compliance or lack of objection, 2. The reason or purpose behind a particular placement and 3. The relative normality of the placement (whatever the comparison is made with) 4.2 DoLS or Mental Health Act (MHA) 1983? A person who lacks capacity to consent to being admitted to hospital for mental health treatment, but who is clearly objecting to it, should generally be treated like someone who has capacity and is refusing to consent to mental health treatment. If it is considered necessary to detain them in hospital, and they would have been detained under the MHA1983 if they had the capacity to refuse treatment, the MHA 1983 should be used. If there is a genuine choice between DoLS and the MHA 1983, then a value judgment will need to be made as to the impact of the DoLS regime under the MCA Mental Capacity Act 2005 Deprivation of Liberty Safeguards Policy 2005 as compared to the impact of detention under the MHA 1983. The question is: Which is the least restrictive way for this patient of best achieving the proposed assessment or treatment? MCA MHA Mental Capacity Only applies is lack capacity Does not require a lack of capacity Mental Disorder Applies to those with mental disorder who lack capacity to make decision in question Applies to treatment of a mental disorder Best Interests Requires decisions to be in best interests Does not require decision to be made in best interests if required for protection of others Page 7 of 18

Range of Treatments Protections Available Restraint Decision making if capacity is lost Whatever care and treatment is in best interests Court of protection complex process Possible under provisions of DoLS Included provisions of advance decisions and LPA Treatment only for mental disorder Mental Health review tribunals Provides legal framework within which a patient can lose their liberty and restrained lawfully without any contravention of the Human Rights Act Taken into account advance directive but can overrule. Some treatments require second opinions eg ECT In all cases where the DoLS regime is appropriate, it is vital to ask whether deprivation of liberty is in the patient s best interests and whether there is a less restrictive option. Where there is a real dispute about where a patient s best interests may lie, a decision of the Court of Protection must be sought. 4.3 Least restrictive principle People should be cared for in the least restrictive way possible and care planning should always consider any other less restrictive options that would prevent unnecessary deprivation of liberty. Awareness of a person s diversity may require care to be offered in an alternative and accessible manner. Staff involved in the care of people who may lack capacity should familiarise themselves with the provisions of the MCA 2005, in particular the two stage capacity test, and the 5 principles of the MCA, and most specifically the least restriction principle 4.4 The Safeguards When a person is about to be admitted or is already in a hospital or care home (the Managing Authority) and is identified as lacking capacity and is being or risks being deprived of their liberty, the Managing Authority must apply to the Local Authority (Supervisory Body) for authorisation. The Supervisory Body will then decide if the application is appropriate (i.e. if the patient is in fact being deprived of their liberty). If it is, the Supervisory Body must carry out 6 assessments: 1. Age the patient is 18 years or over. 2. Mental health the patient has a mental disorder within the meaning of the MHA 1983 3. Mental capacity the patient lacks capacity to consent to admission or to remain in hospital. 4. Eligibility the patient will be ineligible for DoLS if detained or subject to recall under MHA 1983 5. Best interests DoLS must be in the patient s best interests, necessary to prevent harm to the patient and a proportionate response, taking into account the patient s diversity. Page 8 of 18

6. No refusals the authorisation must not conflict with a valid decision by a donee (beneficiary) of a lasting power of attorney or deputy appointed by the Court of Protection nor conflict with a valid and applicable advanced decision. If the assessments to authorise deprivation of liberty are not satisfied, the application will be refused and alternative ways will need to be found to provide the care and treatment required. The duration of the deprivation of liberty will be assessed on a case by case basis. The maximum period for an authorisation is 12 months. Authorisation must be in Mental Capacity Act 2005 Deprivation of Liberty Safeguards Policy writing include the purpose, time period, any conditions and the reasons that each of the assessments is met. The person concerned, the person s representative, attorney or deputy, can request a review of the authorisation by the supervisory body and also has a right to make an application to the Court of Protection. A DoLS authorisation does not authorise care or treatment. This still needs to be carried out under the best interests provisions of the MCA and must follow the five key principles of the MCA. There are two kinds of authorisation: standard and urgent. 4.5 Standard authorisations Managing Authorities should apply for a standard authorisation before a deprivation of liberty occurs, e.g., when a new care plan is agreed that would result in a deprivation of liberty. Applications should be made on the standard forms as detailed in paragraph 4.8 below. The Supervisory Body is responsible for commissioning the assessments which are used to authorise a deprivation of liberty. These assessments must be completed within 21 calendar days. A Managing Authority cannot apply for a standard authorisation more than 28 days before a deprivation of liberty is due to take place. 4.6 Urgent authorisation Wherever possible, applications for deprivation of liberty authorisations should be before the deprivation of liberty occurs. However, where the Managing Authority becomes aware that a deprivation of liberty is already occurring, the Managing Authority may grant itself an urgent authorisation, which will make the deprivation of liberty lawful for a period not exceeding 7 days. In this case a request for standard authorisation must be made simultaneously with the urgent authorisation. A Managing Authority can give an urgent authorisation where a standard authorisation has been requested but it is believed that the need to deprive the person of their liberty is so urgent that it needs to begin before the request is dealt with by the supervisory body. Page 9 of 18

Before giving an urgent authorisation, a managing authority needs to have a reasonable expectation that the 6 qualifying requirements for standard authorisation are likely to be met. Urgent authorisations should normally only be used in response to sudden unforeseen needs. If there are exceptional reasons why the request for a standard authorisation cannot be dealt with within the original urgent authorisation, the Managing Authority may ask the supervisory body to extend the duration of the urgent authorisation for a maximum of a further 7 days. Standard forms are available for making such requests. 4.7 Notifying the Supervisory Body (the Local Authority) of a change The Managing Authority must notify the Supervisory Body if a standard authorisation should be suspended because the eligibility requirement is no longer being met. They must also notify the Supervisory Body when the eligibility requirement is again met. Requests for a formal review of a standard authorisation also have to be made to the Supervisory Body. 4.8 Standard forms and DoLS Office Contact Details Standard forms have been produced for Supervisory Bodies and Managing Authorities to use. A full list of these giving their number and title is attached as Appendix A. The use of the standard forms will help ensure that the correct procedures are followed. Their use will also facilitate consistent practice and simplify reviews, auditing, inspection and the collection of statistics. In addition, use of the forms will ensure compliance with the record-keeping required by statute. All standard forms can also be downloaded from: http://webarchive.nationalarchives.gov.uk/20130107105354/http:/www.dh.gov.uk/en/ There are six forms that are for completion, as necessary, by the managing authority. Form Form 1 Form 2 Form 4 Form 14 Title and Description For the giving of an urgent authorisation by a managing authority. This form should be used if a managing authority needs to give itself an urgent authorisation to deprive a person of their liberty. Managing authority request for an extension in the duration of an urgent authorisation. This form should be used if there is a risk that an urgent authorisation will expire before a standard authorisation can be given. Managing authority request for a standard authorisation. This form should be used to request a standard authorisation, including where an existing standard authorisation is coming to an end and the person s care or treatment still needs to be provided in circumstances that will amount to a deprivation of their liberty. Managing authority notifies the supervisory body that a standard authorisation should be suspended because the eligibility requirement is no longer being met. This form should be used if a standard authorisation is in force and the person then ceases to meet the deprivation of liberty safeguards eligibility qualifying requirement under the Mental Capacity Act Page 10 of 18

Form 15 Form 19 2005. For example, because the person has been detained under the Mental Health Act 1983 or a requirement has been imposed on them under the Mental Health Act 1983 that conflicts with the terms of the standard authorisation. Managing authority notifies the supervisory body that the eligibility requirement is again met and the suspension of the standard authorisation is lifted. This form should be used to lift a previous suspension of a standard authorisation. For example, because a person who was detained under the Mental Health Act 1983 has now had their detention lifted. Request for a review of a standard authorisation from the managing authority to the supervisory body. This form should be used to request a formal review of a standard authorisation under Part 8 of Schedule A1 to the Mental Capacity Act 2005. The supervisory body notifies the managing authority on form 12 that standard authorisation has been given. Form 13 is used by the supervisory body to notify that standard authorisation has been refused. 4.9 Transfers If a person subject to DoLS requires transfer to another Derbyshire Healthcare NHS Foundation Trust hospital or unit / care home (public or private sector) the authorisation ceases to be valid. It is therefore necessary for those co-ordinating the transfer to advise the accepting hospital / care home of the need for them to apply for authorisation to continue to deprive the relevant person of their liberty following transfer. Similarly it will also be necessary for Derbyshire Healthcare NHS Foundation Trust to apply for authorisation for anyone subject to DoLS being transferred into the Trust where the deprivation of the persons liberty is expected to continue following transfer. 5. Reference documents Deprivation of liberty safeguards Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice (2008) Ministry of Justice Mental Capacity Act 2005 Mental Capacity Act 2005 Code of Practice (2007) Mental Health Act 1983 Mental Health Act 2007 6. Appendices Appendix A - List of standard forms for managing authority and supervisory body Appendix B - Overview of deprivation of liberty safeguards process (flowchart) Mental Capacity Act 2005 Deprivation of Liberty Safeguards Standard Forms Page 11 of 18

Standard forms have been produced for supervisory bodies and managing authorities to use. Letters have also been drafted for detained persons and their representatives. A copy of any of these forms/letters can be downloaded from www.dh.gov.uk Gateway reference 10596. Page 12 of 18

Appendix A - List of standard forms for managing authority and supervisory body Form/letter Title Form 1 For the giving of an urgent authorisation by a managing authority Form 2 Managing authority request for an extension in the duration of an urgent authorisation Form 3 Supervisory body s decision regarding request for an extension of an urgent authorisation Form 4 Managing authority request for a standard authorisation Form 5 Age assessment form for completion by assessor Form 6 Mental health assessment form for completion by assessor Form 7 Mental capacity assessment form for completion by assessor Form 8 No refusals assessment form for completion by assessor Form 9 Eligibility assessment form for completion by assessor Form 10 Best interests assessment form for completion by assessor Form 11 Record by supervisory body that an equivalent assessment is being used Form 12 Supervisory body gives standard authorisation Form 13 Supervisory body declines a request for a standard authorisation Form 14 Managing authority notifies the supervisory body that a standard authorisation should be suspended because the eligibility requirement is no longer being met Form 15 Managing authority notifies the supervisory body that the eligibility requirement is again met and the suspension of the standard authorisation is lifted Letter 1 Letter for a person to send to a managing authority concerning a possible unauthorised deprivation of liberty Letter 2 Letter for a person to send to a supervisory body concerning a possible unauthorised deprivation of liberty Form 16 Record of supervisory body action on receipt of notification of a possible unauthorised deprivation of liberty Form 17 Unauthorised deprivation of liberty assessor s report Form 18 Supervisory body s decision following the receipt of an unauthorised deprivation of liberty assessor s report Letter 3 Letter to a supervisory body from a person subject to a standard authorisation requesting a review of the standard authorisation Letter 4 Letter to a supervisory body from a person subject to a standard authorisation s representative requesting a review of the stand Page 13 of 18

Appendix B - Overview of deprivation of liberty safeguards process (flowchart) Page 14 of 18

UPDATED GUIDANCE NOTES PREPARED BY DR JOHN R SYKES, MEDICAL DIRECTOR, FOLLOWING THE JUDGEMENT OF THE SUPREME COURT P v CHESHIRE WEST AND CHESTER COUNCIL AND ANOTHER P & Q v SURREY COUNTY COUNCIL 1. Following a recent judgement of the Supreme Court, consideration needs to be given to inpatients as to whether we are depriving them of their liberty under the new test for Deprivation of Liberty Safeguards (DoLS). The following steps should be taken to determine this for every inpatient and for patients who require supportive living arrangements in the community A Is the patient consenting or not to admission and treatment? B Does the patient have the capacity to consent or are they lacking capacity? The test for capacity can be summarised as follows:- i) Understand the information relevant to the decision Assessor decides how much information. Time and issue specific. (ii) (iii) (iv) Retain that information. Long enough to make a decision. Weigh information. Can be impaired by distress. Communicate decision. May include minimal body movement but alternatively articulate patients may lack capacity. Capacity assessments can be recorded on the relevant FACE document or directly into the nursing or medical notes. C Is the patient being deprived of their liberty? This is now defined by the following circumstances:- * Under constant supervision * AND control * AND is not free to leave Many inpatients will be under constant supervision and would be prevented from leaving if they tried and so it may often depend on the definition of control. Page 15 of 18

This is not defined by a judgement and the following should be considered:- * Prevention of attempts to leave * Control over movement for a significant period * Control over medical/psychiatric assessments and investigations * Control over residence * Control over social contacts * Refusal to discharge patient to carers * Even non protesting compliant patients may be deprived of their liberty, a gilded cage is still a cage. D If the patient is being deprived of their liberty, they need to be assessed either under the Mental Health Act or an application made for Deprivation of Liberty Authorisation. If restraint and/or seclusion is being used, then the Mental Health Act should almost certainly apply. In other examples of control, a DoLS authorisation may be considered, particularly if detention under the Mental Health Act would be disproportionate. 2. Thus, for the first time, we may have patients detained under DoLS authorisation in addition to inpatients detained under the Mental Health Act, whereas previously this was rare. 3. The Trust s Mental Health Act Department must be informed of all requests for DoLS authorisation. 4. If a patient should die whilst detained under a DoLS order or the Mental Health Act the Coroner must be informed. 5. If any advice is needed regarding how to apply for DoLS authorisation, then the main contacts who will be able to help with this are: Dr Gulshan Jan, Consultant Psychiatrist in Learning Disability 01332 268455 gulshan.jan@derbyshcft.nhs.uk Dr John Sykes, Medical Director 01246 515971 john.sykes@derbyshcft.nhs.uk Wendy Henson, Head of Patient Safety 01332 623700 Ext 33408 wendy.henson@derbyshcft.nhs.uk Gary Stokes, Head of Patient Experience and Service Delivery 01332 623700 Ext 31211 gary.stokes@derbyshcft.nhs.uk Useful references: ** CQC Briefing for providers on Deprivation of Liberty Safeguards** ** DH note re Supreme Court DoLS Judgement** Page 16 of 18

Equality Impact Analysis (EIA) form for s To be completed and attached to any policy document when submitted to the appropriate committee for consideration and approval. 1. Does the document/guidance affect one group less or more favourably than another on the basis of: Race Ethnic origins (including gypsies and travellers) Nationality Gender (including gender reassignment) Culture Religion or belief Yes/No Comments The most vulnerable patients eg those with dementia and learning disability are often in situations where the Mental Capacity Act should be applied. This policy and guidance aims to support staff in the effective implementation of DoLS, to ensure patients rights are upheld and that staff act in the patient s best interests at all times Sexual orientation Age Disability - learning disabilities, physical disability, sensory impairment and mental health problems 2. Is there any evidence that some groups are affected differently? 3. If you have identified potential discrimination, are there any valid exceptions, legal and/or justifiable? 4. Is the impact of the document/guidance likely to be negative? 5. If so, can the impact be avoided? 6. What alternative is there to achieving the document/guidance without the impact? 7. Can we reduce the impact by taking different action? Completed by: R Kempster Date: 09 04 15 If you have identified a potential discriminatory impact of this policy document, please refer it to the Policy Sponsor together with any suggestions as to the action required to avoid/reduce this impact. For advice in respect of answering the above questions, please contact the Assistant Director Engagement Page 17 of 18