St Helens Adult Social Care and Health

St Helens Adult Social Care and Health Mental Capacity Act 2005 Deprivation of Liberty Safeguards (DoLS) Policy, Procedure & Practice Guidance Version 1 March 2009

CONTENTS POLICY Introduction and Scope of this Policy What is Deprivation of Liberty? Identifying Deprivation of Liberty Restraint Additional Definitions Page No 1 1 2 2 3 PROCEDURE The Initial Referral Standard Authorisations Urgent Authorisations Authorising a Deprivation of Liberty Appointment of a Person s Representative Reviews BEST INTERESTS ASSESSESSORS APPEALS 4 5 10 11 14 18 21 22 APPENDICES Appendix 1 Care Management Procedure in Relation to Requests for DoLS Assessment 23

1. POLICY Introduction and Scope of this Policy 1.1 The Deprivation of Liberty Safeguards (DoLS) were introduced as part of the 2007 Mental Health Act, and amend the 2005 Mental Capacity Act. They were brought about after case law revealed a gap in the legal framework for people who lacked capacity to make decisions about their care and treatment who were by virtue of the care regime around them effectively detained in either care homes or hospitals. 1.2 Prior to the introduction of the DoLS, there were no legal processes to protect the interests of people in these circumstances. This contrasted with the position of people who are detained under the Mental Health Act 1983, who have the legal right to apply to a Tribunal for a review of their detention and treatment. 1.3 The Act recognises that there circumstances in which people who lack capacity should sometimes have a care regime around them which restricts their liberty to such an extent that they are in fact deprived of that liberty. However, as case law found, without a legal framework around this process, this acts against an individual s human rights. DoLS therefore addresses this, by introducing a legal framework which must be followed to ensure that these rights are not infringed. See DE and JE v Surrey County council 2006 and HL v United Kingdom 2004. 1.4 This Policy and Procedure outlines the key features of the DoLS legislation and the accompanying Code of Practice. It specifically describes the circumstances and processes that must be undertaken by St Helens Council when it receives a request for authorisation of a DoL. It should be read alongside the Policy and Procedure for the Mental Capacity Act. What is Deprivation of Liberty? 1.5 The term Deprivation of Liberty applies to people who are in residential, nursing or hospital care who lack the capacity to make decisions about their circumstances. It does not therefore apply to people who are detained or otherwise subject to provisions of the Mental Health Act 1983 (as amended by the 2007 Act), as these people already have legal safeguards to ensure that they are not detained illegally or inappropriately. Similarly, it does not apply in this context to people who lack capacity who are deprived of their liberty in other settings, such as their own homes or supported or sheltered accommodation. These situations should be referred to the Court of Protection. 1.6 It is not possible to supply a single definition of what constitutes a Deprivation of Liberty, and indeed the European Court of Human Rights, in HL v United Kingdom (2004), stressed that the question of whether someone is deprived of their liberty depends on the particular circumstances of each case. In particular, they said: 1

to determine whether there has been a deprivation of liberty, the starting point must be the specific situation of the individual concerned Account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measure in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance. Page 16. 1.7 This is a key distinction the difference between a deprivation of liberty which, to be lawful, must follow the processes laid out in this Policy and Procedure and a restriction on liberty. The Code of Practice suggests that people should picture a scale which moves from restraint or restriction at one end to deprivation at the other; where a person is on this scale depends on their circumstances and may change over time. Para 2.3. 1.8 Following a number of legal judgements about deprivation of liberty, the following factors have been highlighted as examples of potential deprivation of liberty. Restraint (which can include sedation) is used to admit a person to an institution, where that person is resisting admission. Staff have complete and effective control over assessments, treatment, contacts, residence, care and movement of a person for a significant period. The institution has decided that the person cannot be released into the care of others or allowed to live elsewhere, unless the staff (in the institution) consider it appropriate. A request by carers for a person to be discharged to their care is refused. The person cannot continue with their normal social contacts because of restrictions placed on their access to other people. The individual gradually loses autonomy because they are under continuous supervision and control. 1.9 It is important to stress that the above factors are not the only ones that may amount to a deprivation of liberty. Individual circumstances and situations must also be taken into account. Identifying Deprivation of Liberty 1.10 There is no simple definition of what constitutes a DoL, decision-makers will therefore have to consider all the facts in a given case. Indeed, it is likely that no single factor will, on its own, determine whether a person is being deprived of 2

their liberty. The Code of Practice states that a decision-maker should always consider: All of the details and circumstances of every case. The views of the relevant individual, their family or carers and whether they have any objections. What measures are being taken in relation to the individual - what is their purpose, when are they required, how long will they be in place, why are they necessary, what are the effects of any restraints or restrictions? How are any restraints or restrictions implemented and whether they constitute a deprivation of liberty. Whether there are any less restrictive options available for delivering care or treatment that enable DOL to be avoided altogether? Whether the cumulative effect of all the restrictions imposed on the person amounts to a DOL, even if individually they would not? 1.11 The Code of Practice states that family, friends and carers should be involved in the decision-making process. All steps should be taken to ensure that appropriate people are consulted and involved throughout the process. Para 2.24. Restraint 1.12 Restraint of a person is not in itself a deprivation of liberty, and is appropriate where: It is used to prevent harm to a person who lacks capacity. It is proportionate to the likelihood/seriousness of the harm. 1.13 The European Court has indicated that the duration of restrictions is relevant to deciding whether a person is deprived of liberty, therefore: Immediate actions, designed to prevent harm, may not constitute DoL. Where restriction or restraint is frequent, cumulative and ongoing, consideration needs to be given as to whether this amounts to deprivation of liberty. Additional Definitions 1.14 The Managing Authority (MA) is the person or body with management responsibility for the hospital or care home in which the person is, or may 3

become, deprived of liberty. For a care home or private hospital, this is the person who is registered under part 2 of the Care Standards Act 2000. 1.15 The Supervisory Body (SB) is (for the purposes of this Policy and Procedure) a Local Authority or PCT which is responsible for: Considering a deprivation of liberty request from a MA. Commissioning the statutory assessments. Where all the assessments agree, authorising deprivation of liberty. 1.16 Standard Authorisations : these occur when it seems likely to a MA that, within the next 28 days, someone will be accommodated in the hospital/care home in circumstances which amount to a DoL. It should be a planned process, allowing the authorisation to be made in advance. Section 2.2. 1.17 Urgent Authorisations are those where the MA believes it is in the person s best interests to deprive them of their liberty before the standard authorisation can be completed; under these circumstances an urgent authorisation can be made, but a standard authorisation must then be made within seven calendar days. Section 2.3. 2. PROCEDURE The Initial Referral 2.1 It is the responsibility of the MA to apply for authorisation of DoL of anyone who may fall within the scope of the Safeguards. However, this can be triggered by a health or social care professional, a family member/friend or the person s representative. The application is made to the SB where the person is ordinarily resident (other than where the person is of no fixed abode, in which case the Local Authority where the care home is situated will be the SB). Para 3.3. 2.2 For a standard authorisation, it is a requirement that the MA must apply in writing to the SB, using a standard form. This requires a significant level of detail and the form cannot be accepted without this. In addition there is wider information which should be provided unless it would not be reasonable for this to be provided. MAs must have policies and procedures in place to ensure this happens. 4

2.3 Managing Authority will contact the Contact Centre and verbally request DoLs Assessment on 01744 456789. 2.4 The Customer Service Officer (CSO) will prepare the referral including basic information and specifically the client s address. NB. If the service user is currently in hospital and not open to the area team, the Managing Authority must contact the CSO in hospital to make a verbal request for DoLs. 2.5 The CSO will forward the referral to the appropriate Team Manager or Senior Practitioner by address for immediate action. A copy will be sent to the Mental Capacity Act Co-ordinator for monitoring. The CSO will follow up the referral with a phone call. The Team Manager will take overall responsibility for managing the deprivation of liberty authorisation. 2.6 On receipt of the referral, the Team Manager/Senior Practitioner will allocate the case immediately. If an open case, the allocated Care Manager will be alerted that a referral has been made and will be expected to co-ordinate related work. The Team Manager should determine whether there are any valid equivalent assessments which can be used and should record the reason for using these on a standard form. 2.7 The Care Manager is responsible for collecting the original copy of the documentation of the DoLs Assessment request form from the MA. The Care Manager must ensure that all parts of the form are accurately completed. The application will not be considered to have started until the correctly completed form has been received. If the MA informs the SB that there is nobody appropriate to consult other than a member of the care staff, the SB must instruct an IMCA to represent and support the relevant person before any assessments are made. This is the responsibility of the Team Manager of the responsible team. Para 3.16. Standard Authorisations The Assessment Process 2.8 Once the standard form has been filled in correctly and is valid, the Care Manager will arrange for all the required assessments to be completed. 2.9 In total, six assessments, by a minimum of two separate assessors; in particular the mental health and best interests assessors must be different people. The Best Interests Assessor can work for the MA or the SB, but must not be involved in the care or treatment of the person they are assessing, nor in decisions about their care. If the Best Interest Assessor is not on any AMPH then the Section 12 Doctor must carry out the eligibility assessment. 5

This includes involvement in Panel decisions. A list of mental health assessors will be provided by the PCT. Para 4.13. 2.10 The Care Manager will ring the Section 12 Doctor and the Best Interest Assessor and request an assessment be undertaken. It will be good practice to establish if the BI assessor has an understanding of the needs of the individual whom they are assessing or able to link in with individuals who may be able to advice. 2.11 Where practicable the assessment will take place jointly between BI Assessor and Section 12 Doctors. 2.12 If the BI Assessor or the Section 12 Doctor assesses the individual as not meeting the criteria then the assessment ceases. This information will be fed back to the Care Manager. The Care Manager will inform the MA and the SB. The Care Manager will update appropriate systems. 2.13 It is the responsibility of the Team Manager/Care Manager to ensure that all the original forms are collated in good time, so that they can be presented to the Director of Adult Social Care and Health within the defined timescales. The timescales are measured from the date the SA receives the application in writing. The timescales are as follows: 21 calendar days for a Standard Authorisation. 7 calendar days for an Urgent Authorisation. In exceptional circumstances the Urgent Authorisation can be extended by 7 days. 2.14 All collated forms are to be hand delivered by the Care Manager to the supervisory body (the Director of ASCH). 2.15 The decision of the supervisory body is to be conveyed to the Care Manager who will cascade this decision to the Managing Authority and every person consulted and named by the BIA within the appropriate timescales. 2.16 The outcomes will be recorded by the Care Manager in Carefirst. (see Carefirst process). 2.17 The case will remain open and reviewed in line with departmental standards for complex cases. (see Review Standards). 2.18 Access to records: the assessors have the right to examine and take copies of: Any health record. 6

Any record held by a local authority which was complied in accordance with a social services function. Any record held by a care home. Which they consider to be relevant. These records should be listed in the assessment report. Para 4.77. 2.19 Out of Borough Placement; If a MA requests an assessment of an individual who is living outside of St Helens and St Helens is the responsible authority then ST Helen's is the SB for the purpose of any DOLs requests.in such cases it will be becessary to request a section 12 DR from the area where the individual is living. 2.20 General: the following paragraphs describe the range of assessments that must take place in the assessment period, and the people that can be asked to take on the role of assessor. It is the responsibility of the commissioning team manager to ensure that appropriate assessors are appointed in each case, and that timescales are adhered to. Or suitably qualified people delegated by the manager. 2.21 Age assessment: this is to confirm that the person subject to the assessment process is over 18. Any existing documentation which proves this can be used. If there is any doubt, the assessor can use their judgement. This assessment has to be done by a Best Interests Assessor (BIA). DoLS do not apply to people under 18. 2.22 No refusals assessment: this needs to establish whether there is an existing authority for decision-making for the person such as an advance decision or appointment of a deputy which might conflict with a standard authorisation. Again, this must be done by a BIA. 2.23 Mental Capacity Assessment: this is decision-specific it establishes whether the relevant person lacks capacity at the time the decision needs to be made to decide whether they should be accommodated in the care home/hospital. This assessment can be carried out by anyone who is eligible to act as a mental health assessor (see below) or BIA but a decision needs to be made in this case by the Team Manager of the commissioning team as to who is best placed to do this. The Code of Practice stresses that account should be taken of the need for understanding and practical experience of the nature of the person s condition and its impact on decision-making. It suggests that the appointment of an assessor who already knows the person may help this process. See Mental Capacity Act, Code of Practice and Halton Policy and Procedure for information on how to carry out capacity assessments. 7

2.24 Mental Health Assessment: this establishes whether the relevant person has a mental disorder as defined by the Mental Health Act 1983, and amended by the 2007 Mental Health Act. Effectively this is a medical assessment to ensure that the person is diagnosed as being of unsound mind. This assessment can only be carried out by a doctor who is: Approved under Section 12 Mental Health Act 1983 (including Approved Clinicians) or Is a registered medical practitioner with more than 3 years post-registration experience in the diagnosis/treatment of mental disorder and Has completed the standard training for DOL mental health assessors. This assessment will consider how the person s mental health will be affected by a DoL. PCTs will keep lists of eligible doctors and these will be available for teams to use. 2.25 Eligibility Assessment: anyone who is detained as an inpatient under the 1983 Mental Health Act is not eligible for a DoL authorisation. In addition, an authorisation cannot be placed on someone if it is inconsistent with an obligation placed on them under the Mental Health Act. These issues will need to be considered by the assessor, who for the purposes of this assessment must be either: A mental health assessor who is also a Section 12 doctor or A BIA who is also an AMHP. Such as a Guardianship Order. Note: a Guardian cannot authorise DoL as part of the Order, so a formal authorisation would have to be sought. 2.26 Best Interests Assessments: these assessments are designed to establish if a DoL will be taking place and, if so, whether: It is in the person s best interests. It is necessary. It is proportionate. 2.27 The Best Interests Assessments are completed by BIAs, who take the overall responsibility for assessing what is in the relevant person s best interests. They can be drawn from a range of professions AMHP, social worker, nurse, OT or chartered psychologist and have the necessary skills and experience, including at least 2 years post-registration experience. For a fuller explanation of the training and approval requirements for BIAs, see paras 3.1 3.7. 8

2.28 The BIA cannot be a person who is directly involved in the relevant person s care, or in decisions about their care. Clearly, therefore, a case worker is excluded from being a BIA on a case they have worked on but so is a BIA who is a manager, where they have been involved in any decision-making about the case (including Panel funding decisions). Mental Capacity (Deprivation of Liberty): Standard Authorisations, Assessments and Ordinary Residence Regulations 2008, S12 (1). 2.29 Similarly, in cases where the SB is also the MA, the BIA cannot be someone who is employed by the SB, or by an organisation that provides services to the SB. This is to ensure that there are no conflicts of interest. In these circumstances, the Team Manager must approach either St Helens Borough Council or the Halton and St Helens PCT to see if they can provide a BIA. If this is not possible, other Authorities and private suppliers will need to be contacted. Regulation 12 (2). 2.30 The BIA will first establish whether a DoL is occurring, or is likely to occur. If it is concluded that this is not the case, then they will declare this in their assessment report, and the best interests requirement will not be met. Where, however, it is clear that a DoL is, or is likely to be, taking place, then the BIA will start a full best interests assessment. This involves seeking the views of a range of people, including: Anyone the relevant person has previously named as someone they want to be consulted. Anyone involved in caring for the person. Anyone with an interest in the person s welfare (such as family, friends, advocate). Any donee or deputy who represents the person. Access to relevant case records must be given to the BIA, and needs assessments and care plans must be provided. Staff must be available for consultation as needed with the BIA. 2.31 The BIA will also involve the relevant person in the assessment and will aim to give them as much assistance as possible, so that they can participate in the process. The views of the mental health assessor on how the person would be affected by a DoL will be taken into account. This is why knowledge of the specialist service area would be helpful. 2.32 The BIAs report: at the conclusion of the assessment, the BIA will complete a report and submit this to the Supervisory Body. This report will explain the BIAs conclusions and the reasons for them. If the BIA supports the deprivation of liberty, this will be stated clearly in the report; in addition the BIA must: 9

State what period of time the authorisation should be in the case concerned. Recommend any conditions that should be attached to the authorisation. Where possible, recommend someone to be appointed as the person s representative. See later. 2.33 Where a BIA does not support a deprivation of liberty, then no authorisation can be given. The Code of Practice suggests that, in these circumstances, the BIAs report should be as helpful as possible to the commissioners and providers of care in deciding on future action. The report should be included in the person s case notes, and copied to the care provider for inclusion in their notes. This should be done by the Team Support Officer. Urgent Authorisations General 2.34 MAs can give themselves an urgent authorisation to deprive a person of their liberty where: They must make a request to the SB for a standard authorisation, but the MA believes that the need for this is so urgent that deprivation needs to begin before the request is made or It has already requested a standard authorisation, but the deprivation of liberty is now so urgent that it needs to be in place before the SB has dealt with the request. MAs must notify the commissioning team in writing on the first working day after the urgent authorisation has been given, using the standard form. The commissioning team must immediately fax this to the duty DM and alert them by telephone. 2.35 Hence, an urgent authorisation can never be given without a request for a standard authorisation being made at the same time. Normally they will only be used for sudden, unforeseen needs, but they can also be used as a part of care planning, to avoid delays. MAs should only use urgent authorisations where there is a reasonable expectation that the six qualifying requirements for a standard authorisation will be met. 2.36 Length of an urgent authorisation: the MA can give itself an urgent authorisation for no more than 7 days. At the end of this period, either a standard authorisation will have been given, or the circumstances amounting to the deprivation of liberty will have ended. In addition, an urgent authorisation will end if: 10

The standard authorisation which has been applied for is given. The SB gives notice that a standard authorisation will not be given. The DoL cannot continue without authorisation from the SB. 2.37 The team manager of the commissioning team must let the relevant person, and any IMCA which has been instructed, that the urgent authorisation has ended. This can be combined with the notification to them of the outcome of the application for a standard authorisation. 2.38 Extending an urgent authorisation: an urgent authorisation can be extended, on one occasion only, if there are exceptional circumstances. As noted above, the authorisation to deprive a person of their liberty will end once the urgent authorisation period has ended so it is essential that any request for extension is made as soon as possible. Paras 6.20 6.28. MAs and commissioning teams will need to keep in close contact. 2.39 It is for the SB to decide what constitutes an exceptional circumstance which warrants an extension of the urgent authorisation. The decision must be soundly based and defensible the Code of Practice stresses that staffing shortages would not be a reason for extending an urgent authorisation. 2.40 The decision about extending an urgent authorisation will be taken by the Director or named individual. The Team Manager of the commissioning team should contact the Director as soon as a request for an extension is received, and all relevant information to assist the Divisional Manager in making the decision will be given. The Director will decide: Whether to grant an extension. How long the extension will be for. If it is decided that the urgent authorisation should not be extended, the team manager will notify the MA, using standard documentation. The team manager will: Notify the MA of any extension. Vary the original urgent authorisation so that it states the extended time. Ensure a written record is placed on file. Authorising a Deprivation of Liberty 2.41 In St Helens, the responsibility for authorising a Deprivation of Liberty is delegated to the Director. 11

The only exceptions will be when/if a DM is on leave/training or off sick, when to wait for the person s return would entail unnecessary delay. Where all the assessments conclude that the relevant person meets the requirements for authorisation 2.42 As a reminder, all assessments must be completed and an authorisation given (if appropriate) within the following timescales: For an urgent authorisation, 7 calendar days from the date of receipt of the request for authorisation (unless the urgent authorisation has been extended by the SB, in which case the new date applies). For a standard authorisation, 21 calendar days from the date of receipt of the authorisation. Note: in planning the assessments, team managers must take into account weekends and bank holidays, as all assessments have to be completed within timescales. 2.43 As soon as all the assessments are completed, the Care Manager will collate the forms and take them to the Director. If all the assessments conclude that the relevant person meets the requirements for authorisation, the Director must give a standard authorisation. This will be done by the Director in writing on a standard form, and will state: The name of the relevant person. The name of the relevant hospital or care home. The length of the authorisation (which must not be longer than that recommended by the BIA). The purpose of the authorisation why the person needs to be deprived of their liberty. Any conditions attached to the authorisation. The reason why each qualifying requirement is met. The DoL should be for the shortest possible time 2.44 The Director must consider whether any conditions should be attached to the authorisation. As seen in para 2.23, the BIA may have recommended conditions to be attached to the authorisation; if the Director does not follow these recommendations, the Director should discuss these with the BIA, to see whether this would affect any of the other conclusions in the BIAs report. The BIA should always be present whilst the Director considers the authorisation. 12

2.45 Once an authorisation has been given, a copy of the authorisation must be given to: The Managing Authority. The relevant person. The relevant person s representative. Any IMCA involved. Every interested person named by the BIA as someone they have consulted as part of the assessment. The responsibility for this lies with the Team Manager/Care Manager 2.46 A written record must be kept of any standard authorisation that has been issued. All papers associated with the assessment and authorisation process will be kept in the relevant person s case file within the commissioning team. Care Manager updates Personnel records When any assessment concludes that one of the requirement is not met 2.47 Authorisation of a deprivation of liberty cannot be given if any of the assessments conclude that one of the requirements is not met. As soon as it becomes clear that this is the case, an assessor should notify the Team Manager, (or the person who the manager has delegated to manage the case) who is responsible for the overall co-ordination of the case. 2.48 At that point, the whole assessment process should stop. The manager (or the delegated care manager) should: Immediately notify anyone still doing an assessment that they are not required to complete it. Using a standard form, notify the MA, the relevant person, any IMCA and any interested person already consulted by the BIA that an authorisation has not been given. Provide as soon as possible the MA, the relevant person and any IMCA with copies of those assessments that have already been done. This can be done by any care manager who has been delegated the role, but remains the manager s responsibility. 2.49 If the request for an authorisation is turned down, it is not lawful for a MA to deprive a person of their liberty. The MA will need to review the care arrangements to avoid a potential or actual DoL. SBs and other commissioners will need to ensure that they are purchasing the care in a way which makes it 13

possible for the MA to comply with this. This will involve immediate and close joint working. Para 5.22 describes the steps that should be taken in this circumstance. 2.50 In those circumstances where the BIA decides that the best interests requirement is not met, but that the person is already being deprived of their liberty, they must tell the SB (the Team Manager or care manager) immediately, and explain in their report why they have come to that conclusion. The Team Manager must inform the MA at once, and require them to immediately review the care plan, so as to end the unauthorised DoL. The steps taken to do this should be recorded in the care plan. If, in the view of the Team Manager, it is not being treated urgently enough, the Inspection body and St Helens Council Contracts Team should be notified. The Service Manager should also be notified. Appointment of a patient s representative (PR) 2.51 The PR is a new role and is seen as crucial in the DoL process. The PR is subject to the best interest principle of the Act in the same way as other people, and the PR makes sure that the relevant person receives support and representation that is independent both of service commissioners and providers. Specifically, the role is: To maintain contact with the relevant person and. To represent and support that person in everything relating to the DoLS. Selecting the PR 2.52 Anyone who is over 18, can keep in contact with the relevant person and is willing to take on the role, can be appointed to act as the relevant person s representative. Certain people are excluded from the role, including: Anyone with a financial interest in the relevant person s MA (or one of their relatives). Someone who is employed by the care home or hospital where the person is living and has any role related to their care or treatment. Anyone employed by the SB in a role that could be related to the person s care. There is no presumption that the PR should be the person s nearest relative under the 1983 Mental Health Act. 2.53 The PR must be appointed as soon as possible and practical after a standard authorisation is given. The process of identifying the PR should therefore start 14

as soon as possible. The BIA is required to identify anyone they would recommend as the person s PR, and is expected to discuss this role with the interested people who are interviewed as part of the assessment. If the PR role is agreed, the Director can appoint the PR at the time the standard authorisation is given. 2.54 The BIA will establish whether the relevant person has the capacity to select an eligible person as their PR, or whether a donee or deputy can do this. The BIA must decide whether a proposed person is eligible, and if not, the person who made the selection must be invited to make a different selection. If neither the relevant person, nor a donee or deputy, can select an eligible person, the BIA must consider whether they can identify anyone else. 2.55 If the BIA cannot identify anyone who can take on this role, they must notify the Team Manager (on behalf of the SB) as soon as possible. The Team Manager, on behalf of the SB, will need to identify will an appropriate person to undertake this role. A person may be selected who: Is doing this is a professional capacity (and may therefore be paid by the SB to do this role such as a local advocacy service). Has satisfactory skills and expertise. Is not a family member, friend or carer of the person. Essentially is not employed by the MA or SB in any role, which can be construed as relating to the relevant person s case. Can provide an appropriate and valid criminal record certificate. The Team Manager will if necessary designate a care manager to find an appropriate person. Supporting and monitoring the PR 2.56 The MA is the agency which is responsible for considering whether the PR is having appropriate levels of face-to-face contact with the relevant person. MAs must therefore accommodate visits by PRs at reasonable times, to allow this to happen. MA policies and procedures should ensure that these issues are addressed. 2.57 The key support for a PR is provided by the IMCA service, whose role is both to represent the relevant person and to help the relevant person and the PR understand: The effect of the authorisation. 15

What it means. Why it has been given. Why the relevant person meets the criteria for the authorisation. How long it will last. Any conditions attached to the authorisation. How to trigger a review or challenge in the Court of Protection. The SB should ensure that PRs and relevant persons have information about the IMCA service and how to access it. For St Helens Council, this is the responsibility of the team manager of the commissioning team. 2.58 The Code of Practice is clear that a PR must have an appropriate level of contact with the relevant person, although this will vary from case to case. The MA will need to exercise discretion in assessing this, and will need to keep appropriate records to establish this. However, if it seems to the MA that this is not the case, and that the matter cannot be resolved informally, then the MA should notify the SB the team manager of the commissioning team, or their named representative. The contact between the SB and the MA should reflect the MA s duties in this area. Terminating the role of the PR 2.59 The appointment of the PR will be terminated if: The standard authorisation ends, and there is no new authorisation. The relevant person objects (if they have capacity) to the appointment of a specific PR, and a different person is selected. A donee/deputy objects to the appointment of a specific PR and a different person is selected. The PR is no loner willing or eligible to carry on in the role. The SB becomes aware that the PR is not keeping in appropriate touch with the person, is not representing or supporting them effectively, or is not acting in the person s best interests. The PR dies. 16

Para 7.29. Where the PR may not be keeping in touch with the person, the team manager should contact the PR to find out the position, before ending the appointment. 2.60 Once a PR s appointment has been ended, the team manager of the commissioning team, on behalf of the SB, must give notice in writing stating when the appointment ended and giving the reasons why to: The appointed person. The relevant person. Any donee/deputy of the relevant person. Any IMCA involved. Every interested party consulted in the original report by the BIA. The MA. The team manager of the commissioning team can make the decision to end the PR s appointment. 2.61 If the lawful deprivation of liberty continues, a new PR must be appointed as soon as possible. This again should be as a result of a recommendation from a BIA, so the team manager should instruct a BIA to undertake this piece of work. The team manager is authorised to appoint a substitute PR. Good practice dictates that the original BIA should be the preferred choice for this. What happens if there is no PR available 2.62 If it is not possible to identify a PR, the SB must instruct an IMCA to represent a relevant person, until a new representative can be appointed. The IMCA assumes the role of the person s representative for the period that the instruction is in operation. This should be done by the manager (or delegated person) of the commissioning team. Instructing an IMCA 2.63 As seen in paragraph 2.56, an IMCA may be instructed to act as a PR when no other person is available. In addition, the PR and the person themselves are entitled to the support of an IMCA, to provide them with extra support, help them with reviews or help them to access the Court of Protection. An IMCA must be instructed by the SB (this should be done by the commissioning team manager or delegated team member) whenever requested by the PR or relevant person, even if this is more than once during the period of the authorisation. 17

There is no need for additional advocacy where the PR is a paid professional representative. 2.64 Finally, if the SB believes that a review or Court of Protection safeguards may not be used without the support of an IMCA, then they must instruct the IMCA. Reviews General 2.65 Although a standard authorisation can be reviewed at any time, the MA also has a duty to continually monitor the case, to see if the person s circumstances have changed if this is the case, a DoL may no longer be needed. The SB carries out the review. The Director will be the person who, on behalf of the SB, considers the findings of the assessments and authorises continued DoL. Statutory grounds for a review 2.66 A review of a DoL must be carried out by the SB if: The relevant person, their PR or the MA requests a review. The relevant person no longer meets the age, no refusals, mental capacity, mental health or best interests requirements. The relevant person no longer meets the eligibility requirements as they object to receiving treatment in hospital and now meet the criteria for detention in hospital under the Mental Health Act 1983. The relevant person s circumstances have changed, to the extent that a condition of the authorisation may need to be amended, deleted or added. The reasons the person meets the qualifying requirements are now different from the reasons given at the time of the standard authorisation. Standard letters are available for the relevant person or their PR to request a review. Standard forms are available for MAs. An MA must request a review if it seems to it that one or more of the qualifying requirements are, or may no longer be, met. 2.67 In addition, a SB can also decide to carry out a review at any time, at its own discretion. Note: a DoL can be ended before a formal review. If a care home/hospital decides that deprivation of liberty is not needed any more, it must end it immediately. It should then apply to the SB for a review and, if necessary, a formal termination of the DoL. 18

The Review process 2.68 Unlike other reviews of care in social care services, a DoLS review is not limited to a single meeting - it follows the processes that were followed at the time of the original standard authorisation. On that basis, the SB must notify the relevant person, their representative (including an IMCA if they are acting instead of a PR) and the MA that they are going to carry out a review. This must be done either before the review starts or as soon as practical afterwards. A standard form should be used for this purpose. 2.69 If a review is requested, it should be made to the commissioning team responsible for the case. At this point the team manger assumes responsibility for ensuring that all necessary review processes are being followed, although these processes may be delegated to others. At the point of request, the Team Manager will also notify the Director that it has been received. 2.70 On receipt of a request for a review, the team manager will decide which (if any) of the qualifying requirements need to be reviewed. The decision will be recorded on a standard form. If the team manager, on behalf of the SB, decides that none of the qualifying requirements needs to be reviewed for example, where there has been a very recent assessment/review and none of the circumstances appear to have changed then no review is required. The Team Manager should discuss any decision not to take a review further with the Service Manager. 2.71 Where a team manager decides that more than one of the qualifying requirements should be reviewed, they will arrange for a separate review of each of those requirements. All actions and decisions should be recorded in the case record and on the database. 2.72 A full reassessment of best interests does not need to take place if details of the conditions attached to the authorisation need to be changed, without there being any other evidence of a change in the person s overall circumstances. The conditions can simply be varied. However, where the request for a review relates to any of the other requirements, then a full new assessment must be obtained. Team manager needs to consider whether the grounds for the authorisation or the nature of the conditions are being contested. 2.73 Where the assessment shows that the requirement is still met, the team manager must check whether the reason that it is met has changed from the reason originally stated on the authorisation. If it has changed, the team manager will amend the authorisation; if the review relates to the best interests requirement, the Director will need to consider whether any of the conditions will need to be changed. 19

If any of the requirements are not met 2.74 If any of the requirements are not met, the authorisation must be terminated at once, and the MA and the SB must work together to ensure that an unlawful DoL does not take place. Notifying people of the outcome of the review 2.75 After the review is concluded, the team manager must write and give details of the outcome and any changes to the authorisation to: The MA and the care home itself. The relevant person. The PR. Any IMCA involved. Short-term suspension of authorisation 2.76 On occasion, a change in a person s circumstances will mean that the authorisation will need to be suspended rather than terminated. The MA must notify the team manager of the commissioning team (using a standard form), who will contact the duty Director to confirm a suspension of authorisation. For example, when a person is detained in hospital under the Mental Health Act 1983. 2.77 A suspension of authorisation can last for up to 28 days. If the relevant person becomes eligible again with this period, the MA will notify the team manager and the suspension will be removed. If no such notification is given within 28 days, then the authorisation will end. This will again require confirmation by the duty Director. Fluctuating capacity 2.78 In circumstances where capacity varies, then the Code of Practice is clear that each case should be treated on its merits. A key issue is whether there is evidence of consistent regaining of capacity where this is likely to be temporary, the authorisation should remain in place but be kept under ongoing review. Para 8.23, 4.26 & 4.27 refer to wider issues of fluctuating or temporary capacity. 20

When an authorisation ends 2.79 Once an authorisation has ended, a MA cannot lawfully deprive someone of their liberty. If they believe a person will still need this after the authorisation has ended, they will need to request a further standard authorisation, to begin immediately after the expiry of the first one. The process for renewing a standard authorisation will be essentially the same as that for the original authorisation, except for the need to instruct an IMCA, as the relevant person should by now have a PR involved. This should not be applied for too far in advance but should allow enough time for the full authorisation process to take place. 2.80 At the end of a standard authorisation, if it has not been renewed, the team manager, on behalf of the SB, should write to: The relevant person. The PR. The MA. Everyone named in the BIAs report as having an interest in the person and who has been consulted by the BIA. 3. BEST INTERESTS ASSESSORS 3.1 Best Interests Assessors have a specific and complex role within the Deprivation of Liberty assessment process, as they are the people who decide whether a deprivation of liberty is or is likely to be taking place, and make recommendations about the length of time for an authorisation, and who should be the patient s representative. This role requires detailed training, before a SB can appoint a person to act as a BIA in a particular case. 3.2 St Helens Council have 8 Best Interests Assessors, appointed from within existing staff to fulfil these duties. This will be reviewed annually to ensure that this number of staff is adequate for service demands. It has further been agreed that these staff should be drawn equally from all services areas mental health, physical and sensory disabilities, adults with learning disabilities and older people to ensure equal sharing of the workload and enhance the opportunity to embed knowledge of DoLS in each service area. It is expected that the BIAs will become DoLS Champions within their service areas. Data will be collected on all DoLS activity. 3.3 Eligibility for training: to be considered for the training, SBs must be satisfied that the person has the skills and experience appropriate to the role, which must include (but is not limited to): 21

An applied knowledge of the Mental Capacity Act 2005 and related Code of Practice. The ability to keep appropriate records and to provide clear and reasoned reports in accordance with legal requirements and good practice. Has the skills necessary to obtain, evaluate and analyse complex evidence and differing views and to weigh them appropriately in decision making. 3.4 In addition, the SB must have evidence that the person has an enhanced criminal record certificate issued under section 113B of the Police Act 1997(enhanced criminal record certificates). 3.5 If a BIA is appointed from outside the Authority, they must demonstrate all of the following requirements are met: Be able to demonstrate they have the skills, knowledge and experience. Show that they have completed the required training and (where appropriate) refresher/update training. Possess and supply an up-to-date enhanced criminal record certificate. The Team Manager is responsible for appointing the BIA and must check all these requirements. For Council staff a database with these details will be kept by the Training Officer. 3.6 This also applies to new staff who are joining the Council who have previously acted as BIAs. 4. APPEALS 4.1 If a MA is not satisfied with the outcome of their request for a DoLs authorisation they have a right of appeal to: 1) Court of Protection. 2) The SB using St Helens Complaints Procedure. 22

Care Management Procedure in Relation to Requests for DoLS Assessment Managing Authority verbally request DoLS Assessment via Contact Centre Tel: 01744 456600 CSO takes details and refers to appropriate team electronically. CSO also alerts team by phone Team/Manager/Snr Prac to allocate case to Care Manager Care Manager is responsible for receipt of the written request for a DoLS Assessment and contact BI Assessor and Section 12 Doctor Does BI or Section12 Doctor assess the individual as meeting the criteria? YES NO Team Manager/Care Manager to present completed DoLS Assessment to Supervisory Body within defined timescales Information fed to Care Manager The decision of the Supervisory Body is to be conveyed to the Care Manager who must inform all relevant parties Care Manager informs Managing Authority and Supervisory Body Care Manager to record outcomes in Service User Record Care Manager to update Service User Record Case to remain open and reviewed as necessary 23