Deprivation of Liberty

On 7 July 2015 The Law Commissioned opened a consultation on the law of mental capacity and deprivation of liberty. The consultation is open until 2 November 2015. The Law Commission plans to publish final report alongside recommendations and a draft Bill in 2016. Find out more here.

The proposals are relevant to the housing sector, particularly those who provide supported housing of any description. Sue Garwood, the Housing LIN's dementia lead, has prepared a summary of key features of the Law Commission's proposals and has identified some issues and questions of particular relevance to the sector. These can be found here

The Law Commission published an interim report on 25 May 2016 to update stakeholders on the key issues that have emerged at consultation along with some of their initial conclusions. The interim statement reaffirms that 'legislative change is the only satisfactory solution” to managing the large scale of workloads and resources and argues that "any notion that the existing system can be patched up to cope [. . .] is not sustainable”. Find out more here.

 

Deprivation of Liberty: What housing with support and care needs to know

1. Introduction

2. Examples of deprivation of liberty (DoLs)

3. The legal standard, including the Law Commission Consultation on DoLS

4. The implications on Housing and Support

  • CQC
  • Department of Health
  • The Law Commission
  • SCIE Guidance on Safeguarding

6. Housing LIN View Points on DoLs

7. Other useful links

Introduction

In March 2014, the definition of ‘deprivation of liberty’ was clarified and widened by the Supreme Court in the cases of P v Cheshire West and Chester Council (and generally referred to as Cheshire West P & Q v Surrey County Council). Following this case, it is clear that a deprivation of liberty can take place in any domestic setting, including housing with support, housing with care, adult placement, shared lives or domiciliary care.

There are two important questions to consider if you provide housing related support services to adults who may lack the capacity to consent. The first is: is it possible there is a deprivation of liberty? The second is: is that deprivation allowed? Cheshire West concerns the first question and what a service provider must do if they suspect a service user is being deprived of their liberty. The second question, of whether a deprivation is allowed, is another analysis involving the best interests of the service user and the level of restriction. That analysis is undertaken by either the Deprivation of Liberty Safeguards (DoLS) or the Court of Protection (CoP) after a potential deprivation has been raised. This briefing, written by Roselee Molloy is  exploring the first question of what a service provider must do when they suspect a possible deprivation.

On 9th April 2015, The Law Society  issued further guidance on Deprivation of Liberty Safeguarding following the Cheshire West. This guidance is for all providers of health, care and support services. Read the full guidance on the Law Society website

Examples where a deprivation of liberty has been found

1. An adult (P) with a learning disability living in a bungalow with two other residents, with two members of staff on duty during the day and one ‘waking’ member of staff overnight. He requires prompting and help with all the activities of daily living, getting about, eating, personal hygiene and continence. P requires further intervention including restraint to stop him harming himself, but is not prescribed any tranquilising medication. He is unable to go anywhere or do anything without one to one support; he gets 98 hours a week of personal support to enable him to leave the home frequently for activities and socialising. 

2. A 17 year old (Q, or MEG) with mild learning disabilities living with three others in an NHS residential home for learning disabled adolescents with complex needs. She has occasional outbursts of aggression towards the other three residents and then requires restraint. She is prescribed (and administered) tranquilising medication. She has one to one and sometimes two to one support. Continuous supervision and control is exercised so as to meet her care needs. She is accompanied by staff whenever she leaves. She attends a further education unit daily during term time, and has a full social life. She shows no wish to go out on her own, but she would be prevented from doing so in her best interests.

3. An 18 year old (P, or MIG) with a moderate to severe learning disability and problems with her sight and hearing, who requires assistance crossing the road because she is unaware of danger. She lives with a ‘foster mother’ (commonly called adult placement, or shared lives) whom she regards as ‘mummy.’ Her foster mother provides her with intensive support in most aspects of daily living. She is not on any medication. She has never attempted to leave the home by herself and showed no wish to do so, but if she did, her foster mother would restrain her in her best interests. She attends a further education unit daily during term time and is taken on trips and holidays by her foster mother.

4. Mary, an older person with dementia is living at home with considerable support. Staff monitor her well-being continuously at home because she forgets to eat, is unsafe in her use of appliances, and leaves the bath taps running; she is accompanied whenever she leaves her home because she forgets where she lives and is at risk of road accidents or abuse from others. She shows no sign of being unhappy or wanting to live elsewhere, but, in her best interests, she would not be allowed to leave to go and live somewhere else even if she wanted to.

Examples that are not a deprivation of liberty

5. As part of an ex-offenders scheme, Jamie is released to a housing scheme that requires him to inform staff of where he is going and when he will return each time he leaves the building. Additionally the scheme operates a curfew and he is not allowed out between the hours of 7pm and 7am. This is not a deprivation of liberty because Jamie has the capacity to consent to the arrangement.

The legal standard

 A deprivation of liberty is a limitation on a person’s free will and can take different forms including restricting a person’s movements by only allowing them outside a scheme with staff to using restraints. If a service user’s liberty is deprived, or at risk of being deprived, an application for a deprivation of liberty must ??to ensure an independent review of care arrangements and establish a process for regular reviews of care. Where to make the application depends upon where the deprivation will take place: for non-hospital or care home residents apply with the Court of Protection, for care home residents applications to the local council, and for hospital residents applications to the local clinical commissioning group (CCG). If an application is not sought, the deprivation is unlawful and in violation of Article 5 of the European Convention on Human Rights (the exceptions to this involve the temporary lack of capacity covered under the Mental Health Act).

DOLS

 

The trouble is, each of these factors is not clearly defined. This is a good time remind you that this article is no substitute for legal advice and you are encouraged to seek guidance from legal counsel to assess the specifics of your scheme. 

So when does a person lack capacity to make a decision? This threshold question does not have an easy answer. People may make ‘bad’ decisions or decisions you don’t agree with but that doesn’t mean they lack the capacity to make the decision. Fortunately the standard does not require front line staff to make the final assessment, it is enough that common sense indicates that a service user might be lacking in capacity. Four factors to look for if you suspect a service user lacks the capacity to make a decision are if the person cannot:

  • understand the information relevant to the decision,
  • retain that information,
  • use or weigh that information as part of the process of making the decision, or
  • communicate the decision.

When is a service user is subject to continuous supervision and control?  Again, as the examples demonstrate, there are no bright lines to determine what is clearly acceptable and what crosses into deprivation. Some guidance was given in the case though:

  • control over who the incapacitated person can have contact with;
  • control over the activities that the person is allowed to participate in;
  • not being able to leave the placement without supervision; and
  • not being free to leave the placement permanently in order to reside elsewhere in a different type of setting. 

The next factor is whether the person is free to leave. This question does not arise when some one tries to leave; rather the question is what would happen if the person tried to leave?

The final factor is the role of the state in the person’s life. Cheshire West makes it clear that a deprivation of liberty can take place in any domestic setting, including housing with support, extra-care housing, adult placement/shared lives or domiciliary care. What remains unclear is what level of state action is required to trigger the need for an authorisation. State action is required because the cause of action at court arises from our rights under the European Convention on Human Rights Article 5: Right to Liberty and Security, which protects citizens against state action. Article 5(1)(e) permits the lawful detention of persons of unsound mind, but that detention has to conform to the Convention standards of legality: the requirement for an authorisation and independent best interest assessment. How involved the state must be to validate a finding of ‘state imposed’ living conditions is a question that would require close legal scrutiny but sufficient state action was found for the claimants in Cheshire West living in foster care and a shared lives scheme. If the state is paying for a service that is depriving someone of their liberty it seems that an authorisation must be sought.

What factors are not relevant in determining a deprivation of liberty?

Previously, providers would have looked into these issues to determine whether a deprivation was taking place:

  • a person’s compliance or lack of objection to a placement
  • the suitability or relative normality of the placement and
  • the reason or purpose leading to the placement.

It is now clear that these factors are relevant to the best interest analysis, but that only comes into play after a deprivation of liberty has been identified.

How do you apply to deprive some one of their liberty? If the service user is in hospital or a care home the authorisation needs to come from the hospital supervisory board or local council under the Deprivation of Liberty Standards (DoLS). In any other setting, including housing with support, the application would be to the CoP. 

The implications of Cheshire West in housing with support.

 

[Providers] should err on the side of caution in deciding what constitutes a deprivation of liberty’ and ‘a gilded cage is still a cage

Organisations might be tempted to believe there is no need to seek CoP authorisation because the current support, care and living arrangements provide the best possible solution for the individual. However, the threshold question is not best interests, it is an analysis of ‘continuous supervision and control’ and ‘freedom to leave.

The decision has increased the number of applications to the CoP for authorisation of deprivations of liberty for people living in housing with support. A few examples of service user groups that might previously have been thought outside the reach of the CoP are: people living with dementia or acquired brain injury, for example from a stroke, or with neurological conditions such as Parkinson’s disease or Huntington’s disease; living in settings such as supported living or extra-care housing.

The Care Quality Commission (CQC)

The CQC has advised that providers ‘may wish to seek legal advice and liaise with the commissioners of the service, if they think they might be depriving someone of their liberty and cannot find a less restrictive option for providing care or treatment. 

It is anticipated that more detailed national guidance will be forthcoming. However, in the near term it is advised that providers of housing with support for vulnerable people, who lack capacity, be able to demonstrate that they are:

  • aware of the judgement and have reviewed with care mangers or commissioners when appropriate, any situations that may now be considered a deprivation of liberty.  
  • examining the situation of people who lack the mental capacity to agree to their living arrangements to see if there may be a deprivation of liberty in light of the judgement. There may be occasions where local authority care managers should be involved in this process.
  • ‘in discussion with commissioners and as appropriate either liaising with the local authority supervisory body for the deprivation of liberty safeguards or seeking legal advice, as to how to ensure the protection o the human rights of vulnerable people who use services.’

The Department of Health

The Department of Health has issued the following advice for organisations that provide NHS services for people who lack capacity to consent to the arrangements:

  • familiarise yourself with the provisions of the Mental Capacity Act, in particular the five principles and specifically the ‘least restrictive’ principle
  • be alert to any restrictions and restraint which may mean that an individual is being or is likely to be deprived of their liberty
  • take steps to review existing care and treatment plans to determine if there is a deprivation of liberty
  • where a potential deprivation of liberty is identified, a full exploration of the alterative ways of providing the care and/or treatment should be undertaken in order to identify any less restrictive ways of providing that care without  deprivation of liberty
  • if the care/treatment plan for an individual lacking capacity will unavoidably result in a deprivation of liberty it must be authorised

SCIE

The resources, from the Social Care Institute for Excellence (SCIE), look at how sometimes there’s a case for depriving people of their liberty; for instance, when someone lacks the capacity to consent to their care and treatment. The case for the decision is taken in order to keep them and others safe from harm.

The new resources can be used by care home managers, registered managers, care providers, hospital managers, social workers, best interest assessors and independent mental capacity advocates, along with people with care and support needs and their families.

 Housing LIN

  • In Housing LIN Viewpoint no 72, Sue Garwood shares her current understanding of the position with regard to depriving someone of their liberty in a housing setting if they lack the mental capacity to consent. It builds on Housing LIN Viewpoint 65, Deprivation of Liberty in Supported Housing  outlining both the aspects which have become clearer and those which remain unclear or contentious.
  • In Housing LIN Viewpoint no 65, Sue Garwood explores two questions relating to the Deprivation of Liberty Safeguards (i) How is 'deprivation of liberty' defined (ii) what are implications of extending the DoLs to "supported living" settings as recommended by the House of Lords in the Mental Capacity Act post-legislative scrutiny report?

Useful Links

Care Quality Commission Briefing

Department of Health Letter on the Cheshire West decision

The Cheshire West case

Deprivation of Liberty Safeguards code of practice

The Mental Capacity Act Code of Practice including the 5 principles

Mind Guide to the Mental Capacity Act 2005

CQC Guidance on Notifying Deprivations of Liberty

House of Lords Post Legislative Scrutiny Report

Law Commission statement

 

Information as of Nov 2014