DOL introduction -PP

Deprivations of Liberty (DoL)

AN INTRODUCTOION

A Presentation by Evelyn Amedoda

(Team Manager for Brent Adults with Learning
Disabilities)

AIM of this training

We are going to discuss deprivations of liberty generally and
deprivation of liberty safeguards which only apply in care homes and
hospital of course more particularly.

By the end of this training I hope you will have a sense of when and
how a deprivation of liberty is occurring and what to do about it if it is.

Human Rights

• Eleanor Roosevelt (wife of the former US president and a trailblazer in
the own right) — 'Where, after all, do universal human rights begin?
In small places, close to home - so close and so small that they cannot
be seen On any map of the world, Yet they are the world of the
individual person..”

We will cover

• Deprivation of liberty, the MCA, and human right

• Deprivation of Liberty Safeguards ( DoLS) the origins and the
safeguards themselves

• Authorising a deprivation of liberty: in care homes and hospitals, and
in the community

• The Cheshire West & Surrey Supreme Court judgement, and the
impact of the “acid test” – Gilded Cage is still a Cage and the huge
impact that has had on DoL.

• Links with the Mental Health Act

• Deprivation of liberty for children

• Deprivation of liberty in the future

• DoL although introduced 2 years after the MCA – Five Statutory
Principles.

DoL would only occur if MCA 4 &5 apply as
those are the one that kick in when
someone lacks mental capacity. Any DoL
has to be in a persons best interest. A key
safeguard is that there are people checking
to ensure that when there is a deprivation
of Liberty that is done in a way that is the
least restrictive as possible. DoL are
absolutely grounded in the MCA.
And because DoL is rooted in the MCA they
are also rooted in the Human Rights
legislation.

MCA – 5 Statutory Principals

Article 5 Rights & the Bournewood case

European Convention of Human Rights 1950
5 (1) : Everyone has the right to liberty …No
one shall be deprived of his liberty save …in
accordance with procedure prescribed by law
5 (4) Everyone who is deprived of his liberty
…shall be entitled to take proceedings by which
the lawfulness of his detention shall be decided
speedily by a court
HL & the Bournewood Gap – DoLS set up to
put this right.

In the case of HL, the British Government was found in
breach of article 5 of the ECHR, in the case known as the
Bournewood case, which is created the bournewood
gap.

Bournewood case surround a young man with autism
called HL, who has challenging behaviour. He exhibited
challenging behaviour in his day centre one day, which
was so intense that he was taken to Bournewood
hospital which was a secure unit and he was kept at that
hospital for some considerable time. HL lacked capacity
to consent to his detention at the time.

There he was in hospital being deprived of his liberty and
could consent to the deprivation.

There was a significant population of
people who were being deprived of their
which that have not consented to their
deprivation and they had not been
through a procedure prescribed by law
to deprive them of their liberty.

DoLS was then introduced in law in 2007
and in practice in 2009 to plug the
bournewood gap.

What are the Deprivation of Liberty
Safeguards ?

The procedure prescribed in law when it
is necessary to deprive a resident or
patient of their , in order to keep them
safe from harm, where the resident or
patient lacks the capacity to consent to
their care and treatment

The safeguards

Right to an IMCA if there are no family /
friends

A Relevant Person’s Representative

Role of Lasting Power of Attorney

Can’t authorise a deprivation, but has
an important say in e.g. in conditions, who
the RPR is etc.

Right of appeal – to the supervisory body and
the Court of Protection

For there to be a deprivation of liberty

The storck elements – ECHR German case

Objective element: confinement in a
particular place for a not negligible length of
time (discussion – what constitutes a not
negligible length of time)

Subjective element: the person has not
consented: a disorder or disability of the
mind (s.1 MHA)

Imputable to the state: the state is
responsible for the detention –

Self-funder – still imputable to the state ,
CQC regulations.

Our clear view is that it is unlikely ….to
extend beyond a few (2-3) days and is
likely to be substantially less in setting in
which particularly intense measures of
control are imposed

“We would strongly suggest that it is not
safe to use the rule of thumb that some
public bodies have adopted that a
deprivation of liberty is unlikely to arise
when a person is confirmed for less than 7
days.” Law Society Guidance

Depending on the severity of the
deprivation of liberty – 40 minutes / autistic
adult / swimming pool – successful
challenge. Locked in a police van…

DOLS AUTHORISATIONS

Standard – A managing agent (hospital / care
home) request permission in advance to
deprive a person of their liberty.

The Supervisory Body (the local
authority) commissions assessments (and IMCA
if no family)

Within 21 days: grant or refuses
application.

Urgent – A Managing Authority can

authorise itself to deprive a person of their

liberty a person of their

liberty for up to 7 days.

Within this period, an application for
the standard authorisation can be made.

6 assessments –
Age assessment person 18 by BIA or MH
assessor (s.12 Dr) (if 16 or 17 needs to go to
CoP)

No refusal assessment – by BIA or MH
assessor ; to check that there is no prior
legal process already in place such as
Deputyship or LPA, who may object to that
person being moved into the care home or
an advance decision.
Mental capacity – person may lack capacity
to decide whether or not they should be
accommodated in the care home / hospital
to be given treatment.

Mental Health – person has a mental
disorder within the meaning of the MHA
83. can only be carried out by s.12 Dr
Eligibility assessment - Is / MHA 1983 be
used. Carried out by a s.12 or BIA who is
also an AMHP.
Best Interest – 4 elements 1. The
deprivation is / will be occurring
2. deprivation is the person’s best interest.
3. Deprivation necessary in order to prevent
harm to the person.
4. Deprivation is a proportionate response
to likelihood and seriousness of that harm.
Carried out by the BIA only.
IF all 6 boxes are ticked then deprivation
can be authorisation

Ending an authorisation
Deprivation can last for a maximum of 12
months.
The process will need to start again once
authorisation has ended. DoLS is far too
important then for it to be simply rubber
stamped.
The Supervisory Body must be told if the
authorisation is no longer needed.
The person has left the care home /
hospital
The person no longer meets requirements
e.g they’ve regained capacity
The person has died.

Community DoL
Same considerations : Storck elements
Application is to the court of Protection for
authorisation, nit the local authority#
Providers have a duty to alert the local
authority
Local authority has a positive obligation to
apply to the court
Can apply in people’s own homes and day
centre, but authorisation is rare.

9 March 2014 – Supreme Court –
Cheshire West & Surrey
To define the objective element of the
Stork requirements: what is confinement
for a non-negligible length of time.
The acid Test – continuous supervision and
not free to leave.
The Supreme Court Judgement significantly
lowered the bar for what constitutes a
deprivation of liberty.

Lady Hale: “if it would be a deprivation
of my liberty to be obliged to live in a
particular place, subject to constant
monitoring and control, only allowed
out with close supervision, and unable
to move away without permission…then
it must also be a deprivation of liberty
of a disabled person.”
Universality of human rights. Important
message of human rights. We should not be
judging a person with disability to another
to establish if their liberty is being curtailed,
but we should judge it against everyone
else’s in the society they live.

The fact that living arrangements are
comfortable, and indeed make my life as
enjoyable as it could possibly be should
make no difference. “ A gilded cage is still a
cage”

Continuous ? Free to leave
Continuous supervision need not be 24-
hours observation
Telecare / alarm pad on the door which
alerts someone can amount to DoL.
Sleep in staff.. long reach of the law

Free to leave – not about ability to leave or
desire to leave…

Ask yourself … what would happen if their
family came to take them away ? would you di
something to stop them ?

Impact of lowering of the DoL since the
Supreme Court Judgement has meant a 12 fold
increase in the amount of applications for DoL.
Urgent need for a new system to deal with DoL.

DoLS and the MHA

The MCA does not allow treatment for a mental
disorder which would come under the MHA. So
a person cannot be deprived of their liberty
under DoLS if

They are detained in hospital under the
MHA, or
They are objecting to being admitted to
hospital or to some or all of the
treatment that will receive, or Are
receiving in hospital for their mental
disorder.

There are circumstances where a DoLS
authorisation can sit alongside the MHA where
someone is:
On leave of absence from MHA detention
Subject to guardianship
Subject to supervised community treatment
under a CTO
On a conditional discharge
Detained for treatment of physical condition.

Deprivation of liberty – children

D – 2015 15 yrs boy, detained in psychiatric
hospital with parental consent

Case came back to court D – 2016 16yrs (MCA IS
APPLICABLE – also we feel that 16 years old can
make decisions for themselves. DoLS only apply
for 18 so has to go to CoP) , and in residential care
that meets the acid test – Court view: cannot be
consented by parents. Implication for : foster
homes, children’s homes, care homes. Residential
special schools, residential colleges, hospitals and
elsewhere.

DoL – the future

Law commission – protective care

Restrictive / Supportive to apply to all settings

Separate hospital arrangements – up to 28 days
on the report from a registered medical
practitioner

After 28 days approval by AMCP.

Gov – too expensive and too complicated . Law
Commission have recommended another
regime which parliament will consider, .

THE END