ST GEMMA S HOSPICE POLICIES AND PROCEDURES Category: Patient Title: Safeguarding the Liberty of those who lack Capacity Responsibility of: Social Work Manager and Senior Nurse HLT Member Accountable: Director of Spiritual Care & Social Work Developed in consultation with: HODs Staff with operational responsibility for development, implementation and review: Target audience: All staff Key words: Associated policies: Patient, Policy, Safeguarding, safeguarding, liberty, capacity, DoLS, DOLS, deprivation Patient - Safeguarding the liberty of those who lack capacity Patient - Obtaining Consent form Patients Date most recently validated: October 2011 Date originally validated: November 2009 Review date: October 2014 Page 1 of 9
PATIENT - SAFEGUARDING THE LIBERTY OF THOSE WHO LACK CAPACITY With reference to the Mental Capacity Act 2005 Deprivation of Liberty Safeguards (MCA DoLS) 1.0 Preamble Page 2 of 9 1.1 The MCA DoLs were introduced in April 2009 to provide a legal framework around the deprivation of liberty. It provides protection for those who might, in their best interests, need to be deprived of their liberty and also for those who are making decisions about depriving a patient of their liberty. DoLS were specifically introduced to prevent breaches in the European Convention on Human Rights (ECHR) such as the case illustrated below and other such cases. The Bournewood judgement The case concerned a gentleman with autism HL, who lacked the capacity to decide whether he should be admitted to hospital for specific treatment. HL was admitted on an informal basis under the common law doctrine of necessity (Mental Health Act 1983). However, the admission was challenged by his carers. The European Court of Human Rights (ECtHR) judgement was that the admission constituted deprivation of HL s liberty. Following the judgement of ECtHR, there was a consultation exercise which resulted in the introduction of safeguards for people who lack capacity and are detained for treatment or care. The Deprivation of Liberty Safeguards (DoLS) provide an administrative and judicial framework to safeguard those adults who lack mental capacity who are deprived of their liberty in care homes and hospitals. 1.2 The ECtHR has stated that deprivation of liberty depends on the specific circumstances of each individual case. As a result there is no single definition or standard checklist that can be used to identify when a person is being deprived of their liberty. However, Appendix 1 lists factors that may suggest deprivation of liberty. 1.3 Every effort is made to avoid deprivation of liberty. If this is not possible deprivation of liberty should be for no longer than is necessary. 1.4 People should be cared for in the least restrictive way possible and care planning should always consider options available to avoid unnecessary deprivation of liberty. However if all alternatives have been explored and staff feel that in the patients best interest, it is necessary to deprive them of their liberty to deliver care or treatment they must then follow the standard process to gain authority to deprive an individual of their liberty. 1.5 DoLS provide legal protection for those vulnerable people who are or may become deprived of their liberty in a care home or hospital whether placed there under public or private arrangement.
1.6 People who may need this additional protection include:- Those over 18 years of age who lack capacity. Those with severe learning disabilities, older people with a range of dementias. Or people with neurological conditions such as brain injuries. Those who lack capacity to consent to where treatment and/or care is given. Those who need to be deprived of their liberty in their own best interests to protect them from harm. 1.7 The DoLS exist to provide a proper legal process and suitable protection in those circumstances where deprivation of liberty appears unavoidable, in the person s best interest. They provide for deprivation of liberty to be made lawful through standard and urgent authorisation processes. These processes are designed to prevent arbitrary decisions to deprive a person of liberty and give a right to challenge DoL authorisations 1.8 Protection is provided in the following ways:- Provision of a representative to act for them and protect their interests. If a person has no relative or friend to represent them, an Independent Mental Capacity Advocate (IMCA) will be provided. The right to challenge the Court of Protection against unlawful deprivation of liberty. The right for the deprivation of liberty to be reviewed and monitored on a regular basis. The right to have a representative appointed to oversee care provision in their best interests. 1.9 DoLS do not apply to people detained under the Mental Health Act 1983. 1.10 DoLS state that the managing authority (MA), in our case the Hospice, must seek authority from a Supervisory Body (SB) in order to legally deprive someone of their liberty. In Leeds, NHS Leeds (formerly Leeds PCT) is the responsible supervisory body for Leeds patients at the Hospice. The SB for patients at the Hospice who do not reside in Leeds will be the Local Authority or NHS primary care trust for the area in which they have lived. 1.11 Before a standard authorisation to deprive someone of their liberty can be given, the SB must undertake a comprehensive assessment to decide whether it would be in the person s best interests to deprive him/her of their liberty. The assessment will determine whether the Mental Health Act is indicated instead of DoLS. Page 3 of 9
1.12 In deciding whether an application is necessary, a MA will carefully consider whether any restrictions that are or will be in place to provide ongoing care or treatment amount to deprivation of liberty when looked at together. It is neither necessary nor appropriate to apply for a DoL authorisation for everyone who is in hospital or a care home who lacks the capacity to decide whether or not they should be there. For most patients the Mental Capacity Act 2005 provides safeguards under section 5 to enable care providers to give care and treatment to patients. 2.0 Policy Page 4 of 9 2.1 Staff Member (SM) identifies that the patient may be being deprived of his/her liberty. (Please see Appendix 1 for factors that may prompt thoughts of deprivation of liberty) OR Patients carers or family feel that the patient is being deprived of their liberty and approach staff. 2.2 The Multi-disciplinary team (MDT) discuss these issues. 2.3 Following a discussion, advice is requested from the SB. 2.4 When contact is made with the SB, they will assist the MA staff to determine whether there is a need to proceed with an authorisation. 2.5 The SB will then carry out a series of assessments to decide if it is right to deprive the person of their liberty. 2.6 Following the assessment the SB will advise whether there is a case for authorisation of deprivation of liberty. 2.7 Types of Authorisation:- Standard Authorisation: (This cannot be made more than 28 days before it is required) The Hospice would request a standard authorisation when a plan of care has been agreed that potentially deprives a patient of their liberties but has not yet been put into action. Urgent Authorisation: (7 days only) If the Hospice believes that a deprivation of liberty is actually occurring or may occur before the SB is able to complete a standard authorisation assessment, the responsible staff member should implement an urgent authorisation and at the same time request a standard authorisation from the SB. Forms requesting authorisation are available from: http://www.dh.gov.uk/en/publicationsandstatistics/publications/publicationspolicyandguidance/dh089772 2.8 The SB must conclude the assessment within 21 days.
2.9 The SB commissions assessments by 2 trained assessors:- 1) The Mental Health Assessor is a doctor with experience of diagnosis and treatment of mental disorders. 2) The best interest assessor must be independent of the SB and may be a nurse, social worker, occupational therapist or chartered clinical psychologist who has undergone specific training. 2.10 The assessments are as follows:- Age assessment, which determines if the person is 18 years old or over. Mental health assessment, which decides whether the person is suffering from a mental disorder. Mental capacity assessment, which determines if a person lacks the capacity to consent to receive care or treatment in the particular hospital or care home making the application for deprivation of liberty. Eligibility assessment, which determines whether the person is, or should be, subject to a requirement under the Mental Health Act 1983 (in which case they are not eligible for this process). No refusals assessment, which determines if the person has refused treatment or made decisions in advance about the treatment they wish to receive. This assessment also determines if the potential authorisation conflicts with valid decisions made on the person s behalf by a donee of a lasting power of attorney for personal welfare matters, or a deputy appointed for the person by the Court of Protection. Best interests assessment, which determines if there is a deprivation of liberty and whether this is:- in the person s best interest. necessary in order to keep the person from harm. a reasonable response to the likelihood of the person suffering harm and the likely seriousness of that harm. 2.11 An authorisation will be granted only if all six assessments support the authorisation. 2.12 If authorisation is not granted the MA (Hospice) must look at an alternative plan of care that is less restrictive. 2.13 If a deprivation of liberty authorisation is granted the patient must have a Relevant Persons Representative (RPR) who is appointed to support the patient and look after their interests. This could be a family member or a friend. Page 5 of 9
2.14 If the patient has no one to represent them, an Independent Mental Capacity Advocate (IMCA) is appointed by the SB 2.15 The Hospice and the SB make regular checks to make sure the authorisation is still necessary and remove the authorisation when no longer necessary. provide the RPR with information about care and treatments. A DoLS authorisation can last for up to 12 months. The SB will determine how regularly the authorisation is to be reviewed. 3.0 Procedure 3.1 Staff Member (SM) identifies that the patient may be being deprived of his/her liberty. OR Patients carers or family feel that the patient is being deprived of their liberty. 3.2 MDT asks the questions :- Will the person be restricted in such a way as to take away their freedom to do what they want to do to such an extent that it amounts to a deprivation of their liberty? Do they believe that the care or treatment being provided is in the person s best interest? 3.3 MDT explore whether the care or treatment could be given in a less restrictive way which does not deprive the patient of their liberty. 3.4 MDT agree that the care/treatment cannot be given without restriction of liberty and the person cannot be cared for or treated in any other way. 3.5 MDT appoint a SM to take the DoLS authorisation forward. 3.6 SM contacts NHS Leeds DoLS co-ordinator to discuss the circumstances. 3.7 DoLS co-ordinator assists the SM to reach a decision whether a DoLS authorisation request is necessary but cannot make the decision for the MA. 3.8 SM takes information back to the MDT. 3.9 SM completes request for authorisation (Form 4 and Form 1 if necessary) if DoLS authorisation is necessary faxing the completed forms to the DoLS coordinator (number below). Page 6 of 9
3.10 DoLS co-ordinator arranges for a Mental Health Assessor and Best Interest Assessor to investigate the case on behalf of NHS Leeds SB: a) Authorisation is not granted. MDT review their care plans to reduce deprivation of liberty. b) Deprivation of Liberty Authorisation is granted for up to 1 year. 3.11 SB appoints RPR to ensure the Hospice continues to care for the patient in his/her best interests. 3.12 SB appoints an IMCA if patient has no representative to ensure the Hospice continues to care for the patient in his/her best interests. 3.13 SB and the Hospice will review the case regularly. This is prearranged by the SB. The address of the SB (Leeds NHS) is: DoLS Administration Team Social Work Department St Mary s House 1 st Floor South Wing St Mary s Road Leeds LS7 3JX Tel: 0113 2954454 Fax : 0113 2954453 Page 7 of 9
APPENDIX 1 Deprivation of Liberty Safeguards Policy Factors suggesting deprivation of liberty Restraint, including sedation, is used 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 substantial period. Staff exercise control over assessments, treatment, contracts 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 considered appropriate. Page 8 of 9
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. Page 9 of 9