Review of the Deprivation of Liberty Safeguards. Tim Spencer-Lane

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1 Review of the Deprivation of Liberty Safeguards Tim Spencer-Lane

2 Why this project? House of Lords PLS report 2014 DoLS legislation not fit for purpose better implementation would not be sufficient to address the fundamental problems identified Cheshire West [2014] UKSC 19 Expanded definition of deprivation of liberty DoLS applications up 14 fold (of which only 43% were completed)

3 Stage 1: Pre consultation Summer 2014 July 2015 Meetings with stakeholders and drafting of consultation paper Stage 2: Public consultation 7 July July 2 Nov 2015 Publication of consultation paper with provisional proposals for reform Public consultation on the proposals 25 May 2016 Stage 3: Final report and draft Bill Publication of interim statement 13 March 2017 Publication of final report (setting out final recommendations and draft Bill), consultation analysis and impact assessment

4 The case for reform Poorly drafted, complex & overly bureaucratic Ill-suited & inadequate terminology Joint duty on health and social services to Limited provide scope after-care services for people discharged Disconnect with from the compulsory MCA detention in Scale psychiatric of the problem hospital post under Cheshire section West 3, 37, 45A, 47 or 48 In most cases safeguards are not delivered

5 The Liberty Protection Safeguards

6 The concept of deprivation of liberty No statutory definition of DoL it has the same meaning as Article 5 ECHR New power to give advance consent to arrangements giving rise to a DoL

7 Interim deprivation of liberty Urgent authorisations abolished D can deprive P of liberty pending assessment under Liberty Protection Safeguards Must be a reasonable belief in lack of capacity, and DoL must be necessary to deliver life-sustaining treatment or carry out a vital act

8 Authorising arrangements Arrangements can be authorised which enable care or treatment of a person (aged 16+) which give rise to a deprivation of liberty Can be in any setting or multiple settings Can include arrangements for transport Cannot be used to authorise restricted contact with friends/family or the delivery of care or treatment

9 Who is the responsible body? if the arrangements are in a hospital, it is the hospital manager (eg the trust) if the arrangements are via NHS CHC, it is the CCG or LHB otherwise it is the responsible local authority (the authority meeting the person s needs or in whose area the person is ordinarily resident)

10 Conditions for an authorisation Capacity assessment: lack of capacity to consent to the arrangements, and provision for fluctuating capacity Medical assessment: person is of unsound mind Necessary and proportionate assessment: risk of harm to self or others

11 the assessors Minimum of 2 assessors (who are independent of each other) Identity of assessors not prescribed Increased ability to use previous and equivalent assessments

12 Operational independence Independent reviewer Approved Mental Capacity Professional

13 Safeguards Rights to regular reviews Rights to advocacy or an appropriate person Rights of legal challenge to Court of Protection Duty on prescribed bodies to monitor and report on the operation of the scheme

14 Mental Health Act interface Recommendation: Government should review the Mental Health Act with a view to the introduction of fusion law In lieu of this, Liberty Protection Safeguards cannot be used to authorise arrangements: in hospital for assessing or treating mental disorder or that conflict with any requirement under the MHA community powers (eg guardianship or CTO)

15 Wider reforms of the Mental Capacity Act

16 Amendment of s.4 best interests check-list D must ascertain as far as reasonably practicable P s wishes and feelings D must give ascertained wishes and feelings particular weight Professionals must explain reasons for not giving effect to P s wishes and feelings

17 Limitation of s.5 defence (1) Applies to those acting in professional capacity or for remuneration S.5 defence not available unless a written record made A relevant decision is : moving P to long-term accommodation restricting P s contact with others the provision of serious medical treatment the administration of covert treatment, and the administration of treatment against P s wishes

18 Limitation of s.5 defence (2) The information which must be recorded is: the steps taken to establish that P lacks capacity, the steps taken to help P make their own decision, why it is believed that P lacks capacity, the steps taken to establish that the act is in P s best interests, a description of P s wishes and feelings (and explanation of any decision which conflicts), confirmation that any duty to provide an advocate has been complied with, and confirmation that the act would not be contrary to an advance decision.

19 Supported decision-making process of providing support to enable a person to make their own decisions Government given regulation-making powers to establish a formal scheme Detail of new scheme left to regulations

20 Next steps?

21 My contact details: Website