Deprivation of Liberty Safeguards

MQNF Events 2014

Aims of this workshop:

• To confirm what we already know and what remains unchanged

• To inform on the Supreme Court judgement made in March 2014

• To consider the impact of this judgement on Providers

• To advise of the impact of this judgement on the Local Authority

The Mental Capacity Act 2005

A person must be assumed to have

capacity unless it is established that he

lacks capacity

A person is not to be treated as unable to

make a decision unless all practicable steps to help him do so have been taken

A person is not to be treated as

unable to make a decision merely

because he makes an unwise decision

Anything done for or on behalf of the person must be in his best interests

Before making the decision,

other less restrictive

options should be considered

These principles underpin and support the best interests of the individual

and prevent abuse of decision making power

Best Practice

• Clear recording that demonstrates assessment of capacity to make a specific decision

• Day to day assessment may involve relatively informal decisions but must be written down to show application of core principles

Best Interest Decision Making

• Principle 4

• ‘ If a person has been assessed as lacking capacity then any action taken, or any decision made for or on behalf of that person, must be made in his or her best interests’

Section 5 of the Act….

…allows necessary caring acts or treatment to be carried out ….with protection from liability…..with no need to get formal authority to act

Section 6 of the Act….

…imposes some important limitations on acts……..key areas where practice may be unlawful….inappropriate use of restraint….depriving a person of their liberty

Restraint- Lawful under section 6 of the MCA if:

• Necessary to prevent harm to the person

• Proportionate to the likelihood and seriousness of the harm

• In line with the rest of the Act restraint must be in the person’s best interests and a less restrictive alternative considered

• Careful consideration needs to be given to whether restrictions placed on a person go beyond restraint and actually deprive them of liberty and, if so, whether those restrictions are genuinely necessary.

Two cases taken to the Supreme Court, to determine the correct approach to determining whether a person is deprived of his liberty

Supreme Court Judgement…

Two key questions to ask…( the ‘acid test’)

Is the person subject to continuous supervision and control? And is not free to leave?

All four elements must be satisfied i.e.

1. Continuous 2. Supervision

3. Control 4. Not free to leave

NB. Compliance, lack of objection, reason or purpose are NOT relevant

The intention of the Supreme Court is to extend the safeguard of independent scrutiny

Separate the Question…

• Whether the restrictions amount to a deprivation of liberty from

• Whether staff actions are necessary, proportionate and in the persons best interest

*The former determines whether the situation must be assessed independently*

‘ ….it is no criticism of health and social care bodies, if the safeguards are required. It is merely a recognition that human rights are for everyone, including the most disabled…. Disabled members of the community have the same right to liberty as has everyone else’

Lady Hale. 19th March 2014

Implications for Providers

• Reviews of care planning and delivery• Staffing training needs analysis…review

understanding of Best Interests and least restrictive measures

• Seek authorisations to deprive service users of their liberty

• Better understanding of the process, the documentation and evidence of good practice

Implications for Local Authorities

• Significant increase in applications• Extensions • Seeking guidance from the Court of

Protection• Increasing resources

Your Questions