For patients in inpatient mental health units who are subject to DoLS, staff should be guided by the relevant legislation and code of practice, and the advice on good practice contained in that document. Mental Capacity Act 2005, Deprivation of Liberty Safeguards (England), Annual Report 2015–16, NHS Digital, 2016, Department of Health (2005) ‘Bournewood’ Consultation: The approach to be taken in response to the judgement of the European Court of Human Rights in the “Bournewood” case (gateway Ref 267902) London. ensuring they are aware of their right to request a review of the authorisation at any time, having available for them information on local formal and informal complaints procedures, supporting the relevant person and their representative in understanding their right of challenge to the Court of Protection (under Section 21A of the MCA) which would be legally aided, perhaps using the hospital’s patient advice and liaison service, being aware that in the case of disputes the expectation is that the public body involved, generally the NHS hospital or, in the case of private hospitals, those hospitals or the relevant local authority, would take the matter to the Court of Protection, being aware of the entitlement of the relevant person and their representative to the support of an IMCA (who would be appointed by the supervisory body). From 3 April 2017, following Royal Assent of the Policing and Crime Act 2017 any person subject to a DoLS Standard Authorisation Granted is no longer considered 'in state detention' for the purposes of the Coroners and Justice Act 2009. The DOLS regulations were enacted to ensure that incapacitated adults are not deprived of their liberty by NHS Trusts without: a process of authorisation under the control of the local authority and the safeguards flowing from that authorisation. Request a review from the supervisory body should the conditions need to change. The local authority will commission six assessments, one of which can only be undertaken by a doctor. Supreme Court judgment in P v Chester West and Chester Council and another and P and Q v Surrey County Council, Deprivation of Liberty Safeguards (DoLS): putting them into practice, Mental Capacity Act (MCA) and the COVID-19 crisis, the deprivation had not been in accordance with ‘a procedure prescribed by law’ and was therefore in breach of Article 5(1) of the Convention. However, it is accepted that this will not always be possible in cases of emergency or crisis. This set of procedures sets out how Leeds Teaching Hospitals NHS Trust will fulfil its managing authority role under DoLS. The Safeguards were introduced to provide a legal framework around deprivation of liberty in a care and treatment setting, and prevent breaches of the ECHR such as that identified by the judgement of the ECtHR in the case of HL v. the United Kingdom (8) (commonly referred to as the ‘Bournewood judgement’, from the name of the hospital involved). The guidance applies to all hospitals (including hospices), whether in the public, private or charity sector, irrespective of type (i.e. the person loses autonomy because they are under continuous supervision and control (for example, subject to one-to-one supervision). It is important that providers use it to judge whether they are meeting their duties and responsibilities under the Act. Feel much more confident about the MCA'. A report from the board on the treatment of people lacking capacity. This is to ensure that there is awareness at senior level when restraint is being practised: it is not intended to discourage the application of the Safeguards. Depriving a person of their liberty is not a decision that should be taken lightly even if it is in that person’s best interests. A relatively common scenario is where a family member may be putting pressure on a person to sign cheques or other financial papers when they no longer have the capacity to do so. It may not be a deprivation of liberty, although the person is not free to leave, if the person is not supervised or monitored all the time and is able to make decisions about what to do and when, that are not subject to agreement by others. However, a hospital should consider the Supreme Court’s ‘acid test’ when determining whether a deprivation of liberty is occurring; namely, is the person who lacks capacity to consent to being in hospital kept under continuous supervision and control, and are they free to leave? The framework used by all hospitals should include the following. An authorisation to deprive a person using the service of their liberty is part of that person’s care plan and not a substitute for it. The Deprivation of Liberty Safeguards (DOLS) were added to the Mental Capacity Act to provide safeguards for some of the most vulnerable people in society – those who need to be accommodated in care homes and hospitals under situations which may be restrictive, but who the lack the capacity to give consent to their accommodation and treatment. Deprivation of liberty could be occurring if one, some or all the above factors are present. monitoring whether the representative maintains regular contact with that person and supporting them in doing so. Read our cookie policy. (5). Otherwise there is a risk that a person who lacks the capacity to consent, even if they are not objecting to their care and treatment, is likely to be deprived of their liberty by simply being in that setting. The Safeguards do not authorise abusive practice and applications should not be seen as a way to legitimatise this. Be aware that they must not deprive a person of their liberty any longer than necessary, and cease doing so if appropriate, even in advance of the supervisory body formally ending the authorisation. Arrangements for ensuring any conditions attached to an authorisation are complied with. The Deprivation of Liberty Safeguards have been in operation since 1 April 2009 and hospitals will be familiar with them, the Regulations supporting the Safeguards, the Code of Practice (DoLS code), guidance and forms. This demonstrates how potential confusion about the powers of the Mental Capacity Act can be increased through imprecise use of language to describe patients’ legal status.’. A mental health assessment concluded she was not detainable under the MHA and the managing authority gave itself an urgent DoLS authorisation and applied for a standard one. social care This in no way alters the responsibilities of NHS and private sector hospitals beyond forwarding applications for authorisation to a different organisation. In addition, CCGs (probably through their own MCA lead’s membership of a local MCA and DoLS multi-agency forum) will want regular meetings with their local supervisory bodies, which hold information on the numbers and outcomes of applications for assessment being submitted by hospitals. EMIAS (2013) ‘Deprivation of Liberty Safeguards benchmarking’, Leicester, EMIAS. It gives examples of the evidence CCGs could ask for from services and how the standard contract could support MCA compliance. Hospital medical and social work staff then told the best interests assessor that Mr B would be ‘unsafe’ to return home due to his cognitive impairment, and that a likely placement would be an elderly mentally infirm residential setting. Evidence that each hospital has an MCA lead. Arrangements for training on restriction and restraint and associated record-keeping with particular reference to person-centred care that moves towards deprivation of liberty. The Safeguards are just part of the framework within which hospitals should be working to ensure they respect people’s human rights and dignity. To ensure that care is delivered in as least restrictive way as possible but that is proportionate to any potential harm to the patient. By using our site you agree that we can store and access cookies on your device. If a person is facing a decision about serious medical treatment or where to live, lacks capacity to make that decision, and has no appropriate family or friends able and willing to be consulted as part of the decision-making process, Data are collected on IMCA referrals, and. HL v. UK (2004) - App no 45508/99; 40 EHRR 761; Department of Health (2013), ‘Winterbourne View Hospital: Department of Health review and response’, London: Department of Health. This allows for a full and proper assessment to be undertaken prior to any authorisation coming into force. However, what might appear to be mere restriction and restraint, such as a locked door, if repeated cumulatively, could also amount to a deprivation. All other applications should be sent to the Deprivation of Liberty Safeguards Team within the Local Authority that the person is ordinarily resident. Courts have recognised that often this point can be a matter of opinion, and it is the assessment process commissioned by the supervisory body that determines whether a deprivation of liberty is occurring or not. An ADASS form 10 can be submitted to the DoLS team at any time during the authorisation. Although it does not have a specific section in relation to people who lack capacity, MCA leads in CCGs can request the commissioning board to develop such a section if they wish, as the standard contract is updated annually. The five statutory principles set down in Part 1 paragraph 1 of the Act equally apply to a patient for whom the Safeguards might be relevant: The less restrictive option is particularly important in relation to the Safeguards. An important role within the Safeguards is that of the relevant person’s representative, generally a family member or friend of the person, who has the right to request a review of any of the qualifying assessments, and to challenge an authorisation with an application to the Court of Protection, on behalf of the person. This paper, which is aimed at those working in NHS hospital settings as well as local authorities, seeks to provide a summary of the law governing situations where an individual is potentially deprived of his or her liberty in hospital. The best interests assessor concluded that Mrs S did not have the mental capacity to make care, treatment and or risk decisions or decide where she should live at the present time. The Torbay Deprivation of Liberty Safeguards Team can be contacted on: Tel: 01803 219832 (9am – 5pm, Monday to Friday) Email: Torbay Deprivation of Liberty Safeguards Team. On the contrary, an application is a demonstration that staff understand people’s rights and are acting to promote and protect their rights and best interests. staff understand the legal framework around restriction and restraint, in particular that they are able to justify it as being in the person’s best interests and proportionate to the likelihood of harm, and that it is used for the shortest period of time possible, staff are trained in the use of restriction and restraint techniques, records are kept when the use of restriction/restraint has been used, restriction and restraint practice is audited regularly and where improvements are identified an action plan to implement them is developed. There are estimated to be some 2 million people in England and Wales at any one time who are unable to consent, in whole or part, to their care and treatment. The assessment process itself is a protection of the relevant person’s rights irrespective of the outcome. Easy access to Council services while you're on the move. The HSCA 2012 determined that CCGs take on responsibility for commissioning the majority of local health care. These would usually be supplied by a mental health provider. Each application requires assessments to be undertaken by a mental health assessor. Copies of local policies and procedures covering training, access to and completion of requests for standard authorisations (form 4), urgent authorisations (form 1) and situations in which they can be used. CCGs receive funding to support understanding and implementation of the MCA. Is the person being prevented from going to live in their own home, or with whom they wish to live? This framework is set down in law and includes: Disability Discrimination Acts (DDA) 1995 and 2005. If a DoLS authorisation is due to come to an end, and the managing authority believes they are still depriving the person of their liberty, an ADASS form 2 should be completed.
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