the law commission consultation on deprivation of liberty - ben troke - july 2015
TRANSCRIPT
@BJhealthlaw
@BJhealthlaw
Law Commission special
@BJhealthlaw
• surveying the wreckage
• salvaging the best bits
• overall principles – “protective care” and
supported decision making
– “supportive care”
– “restrictive care and treatment”
– DoL in care, Hospital and family home
@BJhealthlaw
• published - 7 July 2015
• consultation open - 2 November 2015
• respond to [email protected]
• our regional forums
• House of Lords select committee DoLS as
“not fit for purpose” (13 March 2014)
• Cheshire West (19 March 2014)
– “under continuous supervision and control
and not free to leave” – the ‘acid test’
– tens or hundreds of thousands are DoL
– DoLS swamped
– COP in confusion (NB Re X / Court of
Appeal)
@BJhealthlaw
• disconnected from MCA
• limited scope
• conflicts of interest in local authority role
• length and complexity
• terminology
• inadequacy at scale
@BJhealthlaw
• advocacy
• best interests assessors
• tribunals
@BJhealthlaw
Outcomes focussed
Based in MCA
“non-elaborate”
ECHR compliant
Tailored scheme
@BJhealthlaw
• takes Cheshire West defn of DoL
• focus is on appropriate scrutiny /
authority
• but not all designed round concept of DoL
- Article 8 as important as Article 5
• aim to level off the disparity between
DoL and Non DoL
@BJhealthlaw
DoL
@BJhealthlaw
Restrictive Care and
Treatment
DoL
@BJhealthlaw
Supportive Care
Restrictive Care and
Treatment
DoL
own home supported living care home hospital mental health
DoL Per Cheshire West
acid test
Restrictive care and
treatment Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care P lacks capacity to
consent and is in care
/accommodation
own home supported living care home hospital mental health
Mental Health
Setting
MHA
amendments
DoL Per Cheshire West
acid test
Restrictive care and
treatment Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care P lacks capacity to
consent and is in care
/accommodation
own home supported living care home hospital mental health
Mental Health
Setting
MHA
amendments
Supportive care –
the “protective outer layer”
DoL Per Cheshire West
acid test
Restrictive care and
treatment Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care P lacks capacity to
consent and is in care
/accommodation
own home supported living care home hospital mental health
Restrictive Care and Treatment in care
Mental Health
Setting
MHA
amendments
Supportive care –
the “protective outer layer”
DoL Per Cheshire West
acid test
Restrictive care and
treatment Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care P lacks capacity to
consent and is in care
/accommodation
own home supported living care home hospital mental health
DoL in care – AMCP in charge of process
Needs medical evidence
Restrictive Care and Treatment in care
Mental Health
Setting
MHA
amendments
Supportive care –
the “protective outer layer”
DoL Per Cheshire West
acid test
Restrictive care and
treatment Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care P lacks capacity to
consent and is in care
/accommodation
own home supported living care home hospital mental health
DoL in family home
AMCP to scrutinise
DoL in care – AMCP in charge of process
Needs medical evidence
Restrictive Care and Treatment in care
Mental Health
Setting
MHA
amendments
Supportive care –
the “protective outer layer”
DoL Per Cheshire West
acid test
Restrictive care and
treatment Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care P lacks capacity to
consent and is in care
/accommodation
own home supported living care home hospital mental health
DoL in family home
AMCP to scrutinise
DoL in care – AMCP in charge of process
Needs medical evidence
Restrictive Care and Treatment in care
DoL in Hospital
Doctor to authorise
up to 28/7
Mental Health
Setting
MHA
amendments
Supportive care –
the “protective outer layer”
DoL Per Cheshire West
acid test
Restrictive care and
treatment Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care P lacks capacity to
consent and is in care
/accommodation
@BJhealthlaw
• Mental Health Act to be amended to deal
with interface issues – informal in
patients, lacking capacity to consent to
be there and not objecting to treatment
own home supported living care home hospital mental health
DoL in family home
AMCP to scrutinise
DoL in care – AMCP in charge of process
Needs medical evidence
Restrictive Care and Treatment in care
DoL in Hospital
Doctor to authorise
up to 28/7
Mental Health
Setting
MHA
amendments
Supportive care –
the “protective outer layer”
DoL Per Cheshire West
acid test
Restrictive care and
treatment Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care P lacks capacity to
consent and is in care
/accommodation
@BJhealthlaw
“is intended to provide a suitable
protection for those people who are in a
vulnerable position, but not yet subject to
restrictive forms of care and treatment
(including DoL) – in other words a
preventative set of safeguards”
@BJhealthlaw
• where P lacks capacity and is moving into
[supported living / care home / shared
lives]
or
• P is in such a setting and loses capacity
@BJhealthlaw
• LA must keep under review…
• care plans must include a record of
capacity and any restrictions
• discretion to appoint an AMCP
• advocate or appropriate person must be
appointed to ensure P has access to
appeal
@BJhealthlaw
• greater investment in supported decision-
making
• best interests decision making should be
amended to strengthen the priority given
to P’s wishes
own home supported living care home hospital mental health
DoL in family home
AMCP to scrutinise
DoL in care – AMCP in charge of process
Needs medical evidence
Restrictive Care and Treatment in care
DoL in Hospital
Doctor to authorise
up to 28/7
Mental Health
Setting
MHA
amendments
Supportive care –
the “protective outer layer”
DoL Per Cheshire West
acid test
Restrictive care and
treatment Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care P lacks capacity to
consent and is in care
/accommodation
@BJhealthlaw
• where P lacks capacity to consent
• care in supported living / care home
involves a restrictive feature, from an
‘illustrative’ ie non-exhaustive list (para
7.31)
• by definition – wider than DoL
@BJhealthlaw
• P is under continuous
supervision and control, OR
• P is not free to leave – ie not
allowed out unaccompanied or
physically unable to leave
• barriers used to limit movement
• P is controlled by force / meds
• P objects to the care (verbally
or physically)
• significant restrictions on diet,
clothing, access to others or to
community
@BJhealthlaw
• AMCP must be appointed and decides on
authorisation of the care plan, after
appropriate (mainstream) assessments
• 12 months max, and power to impose
conditions or make recommendations
• a second AMCP must be appointed for
ongoing review
• right of appeal
@BJhealthlaw
• Approved Mental Capacity Professional
• Cf AMHP under MHA
• appointment by the local authority
• expect to build on the expertise and
independence of BIAs – but different role
• Required to arrange assessments and
“authorise” the care package including
any DOL
@BJhealthlaw
• broadly the RCAT scheme, but
• care plan must explicitly refer to an
authorise the DoL
• AMCP may need more / independent
assessments
• will need independent medical evidence
@BJhealthlaw
• AMCP can authorise RCAT (including a
DoL) up to 7 days, extendable to 14 days
• care homes lose power to authorise
themselves on urgent basis (cf Hospitals)
own home supported living care home hospital mental health
DoL in family home
AMCP to scrutinise
DoL in care – AMCP in charge of process
Needs medical evidence
Restrictive Care and Treatment in care
DoL in Hospital
Doctor to authorise
up to 28/7
Mental Health
Setting
MHA
amendments
Supportive care –
the “protective outer layer”
DoL Per Cheshire West
acid test
Restrictive care and
treatment Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care P lacks capacity to
consent and is in care
/accommodation
@BJhealthlaw
• LC say going too far to have intervention
in family home for supportive care or
RCAT
• but still need scrutiny if it is a DoL
• referral to AMCP and same safeguards as
under RCAT
own home supported living care home hospital mental health
DoL in family home
AMCP to scrutinise
DoL in care – AMCP in charge of process
Needs medical evidence
Restrictive Care and Treatment in care
DoL in Hospital
Doctor to authorise
up to 28/7
Mental Health
Setting
MHA
amendments
Supportive care –
the “protective outer layer”
DoL Per Cheshire West
acid test
Restrictive care and
treatment Per 7.43 eg Not free to
leave; OR continuous
supervision and control;
barriers; control by
restraint / meds; P
objects; Significant
restrictions
Supportive care P lacks capacity to
consent and is in care
/accommodation
@BJhealthlaw
• no supportive care / RCAT
• if a DoL is required – a doctor can
authorise up to 28 days – after that needs
referral to AMCP
• responsible clinician must be appointed
to ensure an appropriate care plan
@BJhealthlaw
First Tier Tribunal
Upper tribunal
Court of Protection
@BJhealthlaw
• applies to 16-18 year olds as well
• proposes amends to Coroners’ Rules
• care plan can include authorisation for
conveyance
• centrality of care plan – so need clarity of
decision making – best interests or
resource allocation?
@BJhealthlaw
• resources – enough AMCPs, advocates,
money, time?
• impact – if this is really about proper care
planning…
• complexity / duplication – still need a
concept of DoL
@BJhealthlaw
• uncertainty - family home
• role of other authorities – CCGs
• timing - draft legislation due “end of
2016”, implementation unlikely sooner
than 2018
@BJhealthlaw
• this is not the cavalry!
• a DoL still needs DoLS or COP for now
• LC’s wider view may mean more work in
future
• consultation is open to 2 November 2015
– get in touch!
@BJhealthlaw
Please get in touch if you have any questions
or wish to discuss the topics we’ve covered
further…
[email protected] | 0115 976 6263