Document

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Deprivation of Liberty Safeguards Policy and Implementation Protocols

Responsible Directorate:

Patient Care & Professionals

Responsible Director:

Sheila Dilks

Date Approved: August 2010 Committee: Governance Committee

NICE GUIDANCE Once NICE guidance is published, health professionals are expected to take it fully into account when exercising their

clinical judgment. However, NICE guidance does not override the individual responsibility of health professionals to make appropriate decisions according to the circumstances of the individual patient in consultation with the patient and/or their

guardian or carer.

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Version Control Current versions of all policies can be found on NHS Kirklees internet and intranet. If printing a document, please check internet/intranet for most up-to-date version. Document Title: Deprivation of Liberty Safeguards Policy and Implementation

Protocols Document number: 1 Author: Tracy Small Contributors: Version: 2 Date of Production: 26.5.2010 Review date: May 2012 Post holder responsible for revision:

Mental Capacity Act /DoLS Manager

Primary Circulation List: Web address: Restrictions:

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Contents

Section Page

1. Introduction 5 2. Associated policies & procedures 5 3. Aims and objectives 5 4. Scope of the policy 5 5. Accountabilities and Responsibilities 6 6. Protocols for authorisations of a Deprivation of Liberty Safeguard

6.1 Application for Deprivation of Liberty Safeguard 6.1.1 Urgent Authorisations 6.1.2 Standard Authorisations 6.1.3 Application Office 6.1.4 Third Part Identification of Deprivation of Liberty 6.1.5 Court of Protection and Application for a Deprivation of Liberty Safeguard

6.2 Record Keeping 6.3 Receipt of Applications 6.4 Support During Assessments

6.4.1 Independent Mental Capacity Advocate (IMCA) 6.4.2 Interpreters

6.5 Notification of Application 6.6 Assessment Process

6.6.1 Age Assessment 6.6.2 No Refusals Assessment 6.6.3 Mental Capacity Assessment 6.6.4 Mental Health Assessment 6.6.5 Eligibility Assessment 6.6.6 Best Interests Assessment 6.6.7 Equivalent Assessments 6.6.8 Assessors

6 7 7 7 8 8 8 8 8 9 9

10 10 10 10 10 11 11 11 12 13 14

7. Authorisations 7.1 Deprivation of Liberty Authorisations 7.1(A) Notification to the Care Quality Commission. 7.2 Transfers whilst under a standard authorisation 7.3 Deprivation of Liberty Refusal

14 14 15 15 15

8. Reviews 8.1 Change of Circumstances 8.2 Undertaking Reviews 8.3 Changes to Authorisations

8.3.1 Changes to conditions 8.3.2 Termination of Authorisations 8.3.3 Short-term suspension

8.4 Notifications

15 16 16 16 16 16 17 17

9. Relevant Person’s Representative (RPR) 9.1 Criteria for RPR 9.2 Identification of RPR 9.3 Appointment of RPR 9.4 Notification of RPR 9.5 Support and Monitoring for RPR 9.6 Termination of an RPR Appointment

17 18 18 18 19 19 19

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10. Court of protection

10.1 Application to the Court of Protection 10.1.1 Before an authorisation 10.1.2 After an authorisation has been given

10.2 Automatic Right to Access the Court of Protection 10.3 Court Orders 10.4 Court of Protection and settings other than public bodies

20 20 20 20 20 21 21

11. Equality Impact Assessment 21 12. Training Needs Analysis 21 13. Monitoring Compliance with this policy / protocol 22 14. References 23 15. Appendices A Definitions 24 B Key Stakeholders consulted/involved in the development of the policy /

procedure 28

C Equality Impact Assessment Tool 29

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Policy Statement

NHS Kirklees will ensure compliance with the Deprivation of Liberty Safeguards. The deprivation of a person’s liberty is a serious matter and should not happen unless it is absolutely necessary, and in the best interests of the person concerned. Any decision to deprive someone of their liberty will only be made following the Deprivation of Liberty Safeguards assessment processes , in conjunction with the Codes of Practice (to the Mental Capacity Act and the Deprivation of Liberty Safeguards) and in consultation with specific authorities. 1. Introduction NHS Kirklees is committed to ensuring patients / clients / carers receive appropriate care and support from its healthcare team. The implementation of the Mental Capacity Act (MCA) is a legal requirement, which the Trust takes seriously and has agreed to provide support and training for staff in the development of knowledge and skills to ensure the Act is appropriately implemented. The Mental Capacity Act Deprivation of Liberty Safeguards, came into force on 1 April 2009, providing a legal framework to prevent unlawful deprivations of liberty occurring. The Deprivation of Liberty Safeguards have been inserted into the MCA, to ensure the safeguards focus on some of the most vulnerable people in society: Those who for their own safety and in their own best interests need to be accommodated under care and treatment regimes that may have the effect of depriving them of their liberty, but who lack the capacity to consent. 2. Associated policies & procedures This policy should be read in conjunction with the Inter Agency Protocol for Primary Care Trusts and the following Trust policies, procedures and guidance: Policy / Guidance for the Implementation of the Mental Capacity Act (MCA) DH- Code of Practice to the Mental Capacity Act, DH - Deprivation of Liberty Safeguards, Code of Practice NHS Kirklees - Records Management Policy

3. Aims and objectives To ensure staff are aware of the Deprivation of Liberty Safeguards To identify the necessary processes NHS Kirklees must follow in complying with the implementation of the Deprivation of Liberty Safeguards. 4. Scope of the policy This policy and Deprivation of Liberty Safeguards must be followed by all staff who work for NHS Kirklees, including those on temporary or honorary contracts, bank staff and students. Breaches of this policy may lead to disciplinary action being taken against the individual. Breaches may also result in NHS Kirklees having legal sanction taken against them. Independent Contractors are responsible for the development and management of their own procedural documents and for ensuring compliance with relevant legislation and best practice guidelines. Independent Contractors are encouraged to seek advice and support as required.

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The Deprivation of Liberty Safeguards, apply to people over the age of 18. They do not however apply to people detained under the Mental Health Act 1983, as amended in 2007. 5. Accountabilities and Responsibilities The Chief Executive holds overall responsibility for the authorisation of a Deprivation of Liberty Safeguard. This responsibility can be delegated, and for this policy has been delegated to the Director of Patient Care and Professions or their nominated deputy. It is the managing authorities responsibility to request a Deprivation of Liberty Safeguard authorisation. Where the deprivation of liberty safeguards are applied to a person in a hospital situated in England, the supervisory body will be:

• if a PCT commissions the relevant care (or it is commissioned on the PCTs behalf), that PCT • if the Welsh Minister or Local health Board commissions the care and treatment in England,

the Welsh Ministers • in any other case, the PCT for the area in which the hospital is situated.

A Supervisory Body (NHS Kirklees) is responsible for considering requests for authorisations, commissioning the required assessments and, where all assessments agree, authorising the Deprivation of Liberty Safeguard. NHS Kirklees are responsible for ensuring:

• assessors receive appropriate training and refresher training • CRB and insurance checks have been made • Independent Mental Capacity Advocates (IMCA)are appointed, as necessary • assessments are completed by the appropriate assessor • assessments are completed within the required schedules • authorisations are appropriately checked for anomalies, sanctioned or refused as necessary • paid or unpaid relevant persons representatives are appointed and informed of their rights,

responsibilities and cessation of the appointment • Deprivation of Liberty Safeguard authorisations are appropriately reviewed, suspended etc. • relevant information is supplied to those who require it, including the Managing Authority,

relevant person, the relevant persons representative, any IMCA appointed, donees (under a health and welfare Lasting Power of Attorney), Court Appointed Deputies, the Care Quality Commission and the Department of Health as necessary

• arranging a preliminary assessment if a person raises concerns about a potential unauthorised deprivation of liberty.

• monitor potential unlawful deprivations of liberty • required documentation is safely processed and stored • written records of requests for reviews, arranging reviews, outcome of the review and any

variation of an authorisation made in consequence of a review • arrangememts are in place for an IMCA to access, read and take copies of Deprivation of

Liberty Safeguard assessments if requested 6. Protocols for the authorisation of a Deprivation of Liberty Safeguard The Mental Capacity Act Deprivation of Liberty Safeguards make it lawful for a person to be deprived of liberty, based on a rigorous, standardised assessment and authorisation process. The following protocols must be followed to ensure compliance with the law.

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6.1 Application for Deprivation of Liberty Safeguard Every effort should be made, in both commissioning and providing care or treatment, to prevent deprivation from occurring. If deprivation cannot be avoided it should last for the shortest period possible. Dialogue between the managing authority and NHS Kirklees should be maintained throughout the process, especially where urgent authorisations have been granted. The managing authority are required to provide NHS Kirklees with a request for authorisation, using the appropriate forms. 6.1.1 Urgent Authorisations Form 1 must be used for urgent authorisations, where a managing authority needs to deprive someone of their liberty immediately in their own best interests to protect them from harm. These are valid for 7 days. When submitting Form 1 the managing authority must simultaneously submit Form 4 to the supervisory body. An urgent authorisation should not be used where there is no expectation that a standard deprivation of liberty authorisation will be needed, for example:

• A person who lacks capacity to make decisions about their care and treatment has developed a mental disorder, as a result of a physical illness, and

• The physical illness requires treatment in hospital in circumstances that amount to a deprivation of liberty, and

• The treatment of that physical illness is likely to lead to a rapid resolution of the mental disorder such that a standard authorisation would not be required, or

• In an accident and emergency department / acute situation, where it is anticipated that in a few hours or a few days the person will no longer be within that environment or the condition will be resolved.

In exceptional circumstances a supervisory body may extend the duration of an urgent authorisation by up to 7 days. The urgent authorisation will terminate in the following situations:

• If the standard authorisation is approved prior to the end date of the urgent authorisation • Upon the end date of the authorisation, if this is not extended by NHS Kirklees • When notification is given to the managing authority that a standard authorisation will not be

granted. The PCT must inform the managing authority, the relevant person’s representative and any IMCA representative when an urgent authorisation has ended. 6.1.2 Standard Authorisations Form 4 must be used for standard authorisations

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6.1.3 Application Office All applications must be sent by safe haven fax to Gateway to Care. The fax should clearly state that it refers to a Deprivation of Liberty urgent and / or standard authorisation. The contact details of the managing authority must be provided, including contact name, telephone number and fax number. The Gateway to Care must be contacted prior to sending the fax (01484 223000). A member of staff from Gateway to Care will return a call to inform the sender when the information has arrived. 6.1.4 Third party identification of Deprivation of Liberty If the relevant person, family, friend, carer, etc. believes they or someone else is being deprived of their liberty without authorisation, they should identify this to the managing authority. If the managing authority fails to resolve the matter and fails to apply for authorisation, the third party may approach the supervisory body directly. They should provide details of:

• Name of the person they are concerned about • Name of the hospital / care home • Reasons they believe they are being deprived of liberty

A standard letter is available for this purpose. The supervisory body will appoint a best interest assessor to assess whether or not there is an unauthorised deprivation of liberty. This assessment will be completed within seven days. If there is an unauthorised deprivation of liberty the managing authority must supply the PCT with the information that the managing authority would have had to include in a request for a standard authorisation. 6.1.5 Court of Protection and application for Deprivation of Liberty Safeguard If a person is lawfully deprived of their liberty as a consequence of an order of the Court of Protection, there is no need to apply for an authorisation. This must however be applied for prior to the order expiring. 6.2 Record Keeping NHS Kirklees must keep clear and comprehensive records for every person deprived of their liberty. This includes records of applications, assessments and authorisations. The records must also record the relevant persons representative and all documentation relating to changes of circumstances, suspensions of deprivation and termination of authorisation. Duplicate copies must be kept by the managing authority. NHS Kirklees will require the use of standard forms developed by the Department of Health. These documents can be found on the DH website and for NHS Kirklees, on the Z drive. All documentation must comply with NHS Kirklees records management policy. 6.3 Receipt of Applications Wherever possible authorisations should be obtained in advance. This however should be in a timely manner so as to provide sufficient details in relation to the proposed deprivation of liberty. Upon receipt of an application for deprivation of liberty, the forms must be checked by the Deprivation of Liberty Co-ordinator / Mental Capacity Act Manager, to ensure it has been appropriately completed.

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An application sent to the wrong supervisory body can be passed on to the correct supervisory body without the managing authority having to reapply. Contact must be made with the receiving supervisory body and with the managing authority. For standard authorisations NHS Kirklees has 21 calendar days to complete the assessment process. In the event of an urgent authorisation being granted, the standard application must be completed while the urgent authorisation is still valid (within 7 days of the urgent application date). For third party applications NHS Kirklees must consider whether the request is appropriate and if it should be pursued. In the event that it should be pursued a best interests assessor must be appointed to undertake a preliminary assessment. This will then determine if a full assessment should be undertaken for a standard authorisation. The managing authority may change the care regime to prevent a deprivation of liberty. If this is not possible it must give itself an urgent authorisation for deprivation of liberty. NHS Kirklees must keep a record of requests for authorisations and must acknowledge the receipt of these requests. 6.4 Support during assessment It is essential that the relevant person (the person in respect of whom the application is being made), has someone to support them during the assessment process. This would normally be relatives / carers / friends. The managing authority must notify the supervisory body, during the application process, if there is no-one to fulfill this role. 6.4.1 IMCA (Independent Mental Capacity Advocate) If the relevant person has no-one to support them, NHS Kirklees must appoint an Independent Mental Capacity Advocate (IMCA - see MCA Policy). An IMCA instructed at this initial stage has additional rights and responsibilities to those under the MCA Code. They have the right to:

• Give information or make submissions to assessors, which assessors must take into account in carrying out their assessments

• Receive copies of assessments from the supervisory body • Receive a copy of the standard authorisation given by the supervisory body • Be notified by the supervisory body if they are unable to give a standard authorisation • Receive a copy of any urgent authorisations from the managing authority • Receive from the managing authority a copy of any notice declining to extend the duration of

an urgent authorisation • Receive from the supervisory body a copy of any notice that an urgent authorisation has

ceased to be in force • Apply to the Court of Protection for permission to take the relevant person’s case to the court

in connection with the matter relating to the giving or refusal of a standard or urgent authorisation

Once a relevant person’s representative is appointed the duties imposed on the IMCA cease to apply. The IMCA may still apply to the Court of Protection for permission to take the relevant person’s case. They must however take account of the views of relevant person’s representative.

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An IMCA must be instructed during gaps in the appointment of a relevant person’s representative (e.g. if a new representative is being sought). An IMCA may also be instructed at any time where:

• The relevant person does not have a paid ‘professional’ representative • The relevant person or their representative requests that an IMCA is instructed to help • A supervisory body believes that instructing an IMCA will help to ensure that the person’s rights

are protected. 6.4.2 Interpreters Interpreters must be made available, where necessary, to help assessors to communicate with the relevant person and also with people with an interest in their care and treatment. Reasonable attempts to maximize communication with the patient/service user must be made and this may include the use of Makaton, British Sign Language interpreters, pointer boards, digital communication equipment (where available) and also the expertise of the Speech and Language therapy team. 6.5 Notification of Application NHS Kirklees are required to notify the following:

• The relevant person • The managing authority (relevant hospital) • Any IMCA involved • Any third party referrer, where applicable • Every interested party named in the Best Interests Assessment, as being consulted during their

assessment 6.6 Assessment Process Under the deprivation of liberty assessment process there are six assessments required. These must all be met to determine whether it is necessary to deprive a person of their liberty. Once NHS Kirklees has received an application, which it checks and determines is valid and correct, the required assessments must be commissioned. The six assessments are as follows: 6.6.1 Age Assessment This assessment is to confirm that the person is over 18, or will be 18 within 28 days. In cases of doubt this should be confirmed by use of a birth certificate or other evidence of age which the assessor considers reliable. This assessment can be carried out by any professional. For NHS Kirklees this will be completed by a qualified BIA (Best Interest Assessor). 6.6.2 No refusals Assessment The purpose of this assessment is to determine if an authorisation would be in conflict with other existing authority for decision-making for that person. The following are instances where a conflict may arise:

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• If the relevant person has made an advanced decision to refuse treatment, that remains valid and is applicable to some or all of the treatment proposed, for which the authorisation is requested.

• If the proposal to deprive the person of liberty would conflict with a valid decision of a donee, deputy or person with power of attorney, made within the scope of their authority.

This assessment must be undertaken by an eligible BIA (Best Interest Assessor). 6.6.3 Mental Capacity Assessment This assessment is to determine if the relevant person lacks the capacity to consent to the arrangements proposed for their care or treatment. This assessment will usually be completed by the BIA (Best Interest Assessor), unless the MHA (Mental Health Assessor) has prior knowledge of the relevant person, in which case this may be carried out by the MHA (Mental Health Assessor). This must be established prior to undertaking assessments, to ensure the least number of assessors deal with each case and also to ensure assessments are not duplicated or missed. 6.6.4 Mental Health Assessment The purpose of this assessment is to establish whether the relevant person is suffering from a mental disorder within the meaning of the Mental Health Act. This is not an assessment to determine if the person needs mental health treatment. This assessment must be carried out by a section 12 (Mental Health Act) doctor or be a registered medical practitioner with at least three years’ post registration experience in the diagnosis or treatment of mental disorder who has successfully completed their Mental Capacity Act Mental Health Assessment course. 6.6.5 Eligibility Assessment This assessment relates to the relevant person’s status, or potential status, under the Mental Health Act 1983, amended in 2007. It aims to confirm whether the relevant person should be covered by the Act rather than the Deprivation of Liberty Safeguards under the Mental Capacity Act 2005. A person is not eligible for a deprivation of liberty if:

• They are, at the time of the application, detained as a hospital in-patient under the Mental Health Act 1983(amended in 2007) or

• The application, if granted, would be inconsistent with an obligation placed on them under the Mental Health Act 1983 (amended in 2007), such as a requirement to live somewhere else. This will only affect people who are on leave of absence from detention under the Mental Health Act 1983(amended in 2007) or who are subject to guardianship, supervised community treatment or conditional discharge.

This assessment will be carried out by the Mental Capacity Act qualified Mental Health Assessor. If the proposed authorisation relates to deprivation of liberty in a hospital wholly or partly for the purpose of treatment of the mental disorder, the relevant person will not be eligible if:

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• They object to being admitted to hospital, or to some or all of the treatment they will receive there for mental disorder, and

• They meet the criteria for an application under section 2 or 3 of the Mental Health Act.

The person will also not be eligible if they are:

• Currently on leave of absence from detention under the Mental Health Act • Subject to supervised community treatment, or • Subject to conditional discharge,

In which case powers of recall under the Mental Health Act should be used. People on leave of absence from detention under the Mental Health Act or subject to supervised community treatment or conditional discharge are, however, eligible for the deprivation of liberty safeguards if they require treatment in hospital for a physical disorder. 6.6.6 Best Interests Assessment The purpose of the best interest assessment is to determine if deprivation of liberty is, or is going to occur and, if so, whether:

• It is in the best interests of the relevant person to be deprived of liberty • It is necessary for them to be deprived of liberty in order to prevent harm to themselves • Such deprivation of liberty is a proportionate response to the likelihood of the relevant person

suffering harm and the seriousness of that harm. This assessment must be carried out by an appropriately registered professional, having successfully qualified as a Best Interest Assessor on a course, approved by the Secretary of State The BIA (Best Interest Assessor) must seek the views of:

• Anyone the person has previously named as someone they want to be consulted • Anyone involved in caring for the person • Anyone interested in the person’s welfare (family / carers / close friends etc.) and • Any donee or deputy who represents the person

Names and addresses of all interested persons consulted must be documented within the BI assessment. The BIA (Best Interest Assessor) is allowed to access, examine and take copies of:

• Any health record • Any record of, or held by, the local authority • Any record held by the care home Relevant to the case being assessed.

The best interest assessor will state what the maximum authorisation period should be in each case. This must not exceed 12 months. The assessor should provide reasons for selecting the period stated, based upon the information obtained during the assessment.

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The assessor must provide a written report explaining their conclusion and the justification for their recommendations. If the assessor does not support the application for deprivation, this should be discussed with the managing authority during the assessment, along with any recommended alternatives to treatment. A copy of their report should also be filed within the relevant person’s case notes and also supplied to the Supervisory Body. The best interest assessor may recommend that conditions should be attached to the authorisation, if not dealt with, these would mean a deprivation of liberty would cease to be in a persons best interests. It is not the best interests assessor role to specify conditions which do not directly relate to the issue of deprivation of liberty. Any proposed recommendations should be discussed with the managing authority prior to a final report being submitted. The best interest assessor should recommend someone to be appointed as the relevant persons representative. As a result of the consultations they should be well placed to identify whether there is anyone suitable for the role. As soon as possible after carrying out the assessment, records must be written. A copy must be given to the supervisory body, who in turn gives copies to:

• The managing authority • The relevant person and their representative • Any IMCA instructed

At the same time that it gives them copies of the deprivation of liberty authorisation or notification that an authorisation is not being given. The Best Interest Asessor should also give consideration as to whether a referral should be made to the appropriate safeguarding team, if necessary. 6.6.7 Equivalent assessments The Act allows for equivalent assessments already obtained to be relied upon instead of obtaining additional assessments. An equivalent assessment is an assessment:

• That has been carried out within 12 months, not necessarily for the assessment of deprivation of liberty

• Meets all the requirements of the deprivation of liberty assessment • Of which the supervisory body is satisfied there is no reason to believe that it is no longer

accurate • Of which the supervisory body has a written copy.

Great care should be taken in deciding to use an equivalent assessment, and this should not be done routinely. The assessor must document reasons for the use of an equivalent assessment, using the standard documentation.

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6.6.8 Assessors NHS Kirklees must commission assessors, who comply with the DH requirements. All assessors must have undertaken the relevant Mental Capacity Act Assessor training programme, for either the Mental Health Assessor or Best Interests Assessor. All assessors must also have CRB clearance and possess indemnity and / or insurance, to undertake the role. A central list of Mental Health and Best Interest Assessors is held within Gateway to Care. Assessors on this list will already comply with these standards. Any external assessors commissioned, must have appropriate checks undertaken prior to contact with the relevant person. 7 Authorisations Once all six assessments have been undertaken NHS Kirklees will review the information to ensure that there are no omissions or irregularities and then consider whether or not to proceed with an authorisation.. 7.1 Deprivation of Liberty Authorisation If all assessments indicate that the relevant person meets the qualifying requirements, then the deprivation of liberty will be authorised. The standard authorisation form must be completed (Form 12). A period of authorisation, which must not be longer than recommended by the best interest assessor, must be set. Conditions may be attached to the authorisation. These must be documented on the authorisation document. Where the NHS Kirklees PCT do not attach conditions recommended by the best interest assessor, this must be discussed with the assessor in case the rejection or variation would significantly affect the other conclusions of the best interest assessor. A relevant person’s representative must be appointed As soon as possible after giving authorisation, the NHS Kirklees PCT must give a copy to:

• The relevant person • The managing authority • The relevant person’s representative • Any IMCA involved • Every interested person named by the best interest assessor in their report as somebody they

have consulted in carrying out their assessment. NHS Kirklees must take all practical steps to ensure the relevant person understands the effects of the authorisation on their rights. These include the right to challenge the authorisation via the court of protection, their right to request a review, their right to have an IMCA instructed. Appropriate information must be given to the relevant person orally and in writing. Written information must also be given to the relevant person’s representative.

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7.1 (A) Notification to the Care Quality Commission (CQC) There is a duty to refer Deprivation of Liberty Safeguarding Authorisations to the Care Quality Commission (CQC). Whilst the onus for this report is on the Managing Authority, the Supervisory Body should record who reported it to the CQC, and on what date and.time. 7.2 Transfers whilst under a standard authorisation If a person is to be moved to an alternative location and will still be deprived of their liberty, the receiving location should apply for authorisation prior to the move. This does not apply if the person will not be deprived of their liberty in the new location. Where the move needs to take place urgently, the managing authority of the new location will need to give an urgent authorisation. 7.3 Deprivation of Liberty Safeguard refusal If any of the assessments conclude that one of the requirements is not met, then the assessment process must stop immediately and authorisation must not be given. NHS Kirklees must inform anyone involved in the assessment process that they are not required to complete the assessment. Form 13, Supervisory body declines a request for a standard authorisation, must be completed and forwarded to:

• The relevant person • The managing authority • Any IMCA involved • Every interested party consulted as part of the assessment

Along with form 13, the Managing Authority, relevant person and any IMCA involved, should be provided with copies of the assessment which has been carried out. This must be carried out as soon as possible as different arrangements may need to be implemented for the person’s care. If the reason the authorisation cannot be given is due to the eligibility requirements not being met, it may be necessary to consider making the person subject to the Mental Health Act 1983(amended in 2007). Dependant upon the reasons for the refusal to authorise the deprivation of liberty, will depend upon what action the managing authority has to take, to prevent the relevant person being deprived of liberty. Changes necessary to prevent the deprivation must be implemented to prevent unauthorised deprivation of liberty, which is unlawful. Consideration must again be given as to whether a referral to the safeguarding team is appropriate, and if so, to make the referral in an appropriate and timely manner. 8 Reviews Any person deprived of their liberty has a right to have their status reviewed. The managing authority must monitor this situation, if the persons circumstances change the managing authority must action a review.

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8.1 Change of Circumstances A review can be carried out at any time. There are statutory grounds when a review must be carried out, these are:

• The relevant person no longer meets one or more of the assessment requirements • The relevant person no longer meets the eligibility requirement, due to receiving mental health

treatment under the Mental Health Act 1983 (amended in 2007) • There have been changes to the relevant persons situation and, because of the change, it

would be appropriate to amend an existing condition to which the authorisation is subject, delete an existing condition, or add a new condition

• The reason(s) the relevant person now meets the qualifying requirements are now different to when the authorisation was given.

8.2 Undertaking Reviews Following receipt of a review notification, the PCT must determine if any of the qualifying requirements need to be reviewed. Where this is not the case no review is required. If it appears that one or more qualifying requirement need to be reviewed the appropriate assessments should be commissioned, as in section 6 above. The supervisory body must inform the relevant person, their representative and the managing authority if a review is to be carried out. This must be provided prior to the review being undertaken. Records of all formal requests for reviews, outcomes and correspondence must be filed within the relevant persons records, held by the Supervisory body. 8.3 Changes to Authorisations Following the review, changes may be made to an authorisation. There are several outcomes, which may be undertaken: 8.3.1 Changes to conditions Where conditions attached to authorisations are reviewed and there is no change to the qualifying criteria, the conditions can be varied by the supervising authority. 8.3.2 Termination of Authorisation If any of the qualifying requirements are not met, the authorisation should be immediately terminated. The Deprivation of Liberty Safeguard can be ended prior to the review date on the authorisation, if the managing authority feel that it is no longer necessary. In these circumstances it should be ended immediately and the care records amended. The managing authority should request a review and, if appropriate, terminate the authorisation. Should a person who is under the jurisdiction of a Deprivation of Liberty Safeguard die, then the Managing Authority must inform the Coroners Court and the Supervisory Body should ensure that this has been done.

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8.3.3 Short-term suspension If a person ceases to meet the eligibility criteria due to receiving mental health treatment in hospital, an authorisation of deprivation of liberty can be suspended. If the relevant person then becomes eligible within 28 days, the supervisory body can remove the suspension. If no such notice is given within the 28 days, the authorisation must be terminated. 8.4 Notification NHS Kirklees must give written notice of the outcome of a review and any changes, terminations and suspensions to:

• The relevant person • The managing authority • The relevant persons representative • Any IMCA involved • The Care Quality Commission

For terminations of authorisation the following should also be notified:

• Every person named by the best interest assessor in their report as somebody they have consulted in carrying out their assessment.

9 Relevant person’s representative (RPR) When a standard authorisation for a Deprivation of Liberty Safeguard has been given, NHS Kirklees must appoint the relevant person’s representative, as soon as possible. The role of the RPR is:

• To maintain contact with the relevant person • To represent and support the relevant person in all matters relating to the deprivation of liberty,

including, if appropriate, triggering reviews, using an organisations complaints procedure on the persons behalf or making an application to the Court of Protection.

NHS Kirklees must ensure the RPR understands

• The effect of the authorisation • Their right to request a review • The formal and informal complaints procedure • The right to make an application to the Court of Protection • Their right, where the relevant person does not have a paid ‘professional’ representative, to

request the support of an IMCA.

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9.1 Criteria for a RPR To be eligible for a relevant person’s representative role, the person must be:

• 18 years of age or over • able to keep in contact with the relevant person • willing to be appointed

The person must not be: • financially interested in the relevant person’s managing authority (i.e a partner, director, office-

holder or major share holder of the company) • a relative of a person with financial interest in the relevant person’s managing authority • employed by or providing services to the relevant person’s managing authority • employed by the managing authority, providing care and treatment to the relevant person • employed to work in the relevant person’s supervisory body, in a role that could be related to

the relevant person’s case. 9.2 Identification of a RPR The process of identification of a RPR should begin as soon as possible. The best interest assessor should identify a relevant RPR via a hierarchy process. This is:

• Does the relevant person have capacity to identify who they would wish to have as their RPR • If the relevant person lacks capacity and there is a power of attorney, donee, deputy, they

should be consulted. If the recommended RPR meets the eligibility criteria the best interest assessor must recommend that person to the supervisory body

• Where there is no power of attorney, donee, deputy, the best interest assessor should discuss the role with the relevant person’s family, friends, carers etc. to identify a suitable RPR

• In the event that a suitable RPR cannot be identified, the best interest assessor must inform the supervisory body. Following which the supervisory body must commission a paid ‘professional’ RPR.

It should not be assumed that the RPR has to agree with the deprivation of liberty. The best interest assessor must not recommend a representative which the relevant person, or their power of attorney, donee, deputy states they are not content with. 9.3 Appointment of the RPR NHS Kirklees must invite, in writing, the person recommended by the best interest assessor to become the relevant person’s representative. If the person is willing to become the representative, the Trust must formally appoint them. If the person refuses, a further eligible person must be identified. The appointment must be in writing, setting out the role and period of appointment. The period of appointment will be the period of the standard authorisation.

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The relevant person’s representative must confirm to the supervisory body, in writing, that they are willing to accept the appointment and understand their roles and responsibilities in respect of the relevant person. 9.4 Notification of RPR NHS Kirklees must notify the following of the appointment of the relevant person’s representative:

• The appointed person • The relevant person • Any donee or deputy • Any IMCA involved • Every interested party named by the best interest assessor as being consulted in carrying out

their assessment • The managing authority

9.5 Support and monitoring for RPRs The RPR must be allowed access to the relevant person at times convenient to them. They should also be informed about the support available from the IMCA service. If the managing authority feels that there is a lack of contact from the RPR to the relevant person this should be discussed initially with the RPR, to determine if help can be provided. In the situation where there continues to be a lack of contact the managing authority must inform the supervisory body. 9.6 Termination of an RPR appointment The appointment of the RPR will be terminated when:

• The standard authorisation comes to an end • The relevant person, if they have capacity, objects to the representative continuing in the role,

and a different person is selected to be their representative • A donee or deputy, if within their authority, objects to the representative and a different person

is selected to be the representative • The supervisory authority becomes aware that the RPR is no longer willing and / or eligible to

continue in the role • The supervisory body becomes aware that the RPR is not maintaining contact with the relevant

person, is not representing and supporting them effectively or is not acting in the persons best interests.

• The RPR dies If the supervisory body becomes aware that the RPR is not maintaining contact with the relevant person, they should contact the representative to clarify the position before deciding whether to terminate the appointment. When the appointment of a RPR ends, but the deprivation of liberty continues, NHS Kirklees must appoint a suitable replacement

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When the appointment of a RPR ends, notification should take place as in 9.4. In the event that there is a gap in the appointment of a RPR, the supervisory body must instruct the IMCA service, who will undertake the role until a RPR is appointed. 10. Court of protection To comply with article 5(4) of the European Convention on Human Rights, anybody deprived of their liberty in accordance with the safeguards is entitled to the right of speedy access to the Court of Protection. 10.1 Applications to the Court of Protection 10.1.1 Before an authorisation The relevant person, or someone acting on their behalf, may make an application to the court of protection before a decision has been reached on an application for authorisation to deprive someone of liberty. This may be to ask the court to declare whether someone has capacity, or whether an act done or proposed in relation to the person is lawful. 10.1.2 After an authorisation has been given Once a Deprivation of Liberty authorisation has been given, urgent or standard, the relevant person or their representative has the right to apply to the court of protection to determine any question relating to the following matters:

• Whether the relevant person meets one or more of the qualifying requirements for deprivation of liberty

• Whether the authorisation should have been given • The period for which the authorisation is to be in force • The purpose for which the authorisation is given • The conditions subject to which the standard authorisation is given

Wherever possible, concerns about deprivation of liberty should be resolved informally or through the relevant supervisory body’s complaints procedures. 10.2 Automatic right to access the Court of Protection The following people have the automatic right to access the Court of Protection and do not have to obtain permission:

• A person who lacks, or is alleged to lack, capacity in relation to a specific decision or action • The donor of a Lasting Power of Attorney to whom an application relates, or their donee • A deputy who has been appointed by the courts, to act for the person concerned • A person named in an existing court order, to which the application relates • The person appointed as the Relevant Person’s Representative

All other applicants must obtain permission of the court before making an application.

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10.3 Court Orders The court may make an order:

• Varying of terminating a standard or urgent authorisation, or • Directing the supervisory or managing authority to vary or terminate the authorisation.

10.4 Court of Protection and settings other than public bodies The Deprivation of Liberty Safeguards relate only in circumstances where a person is deprived of liberty in a hospital or care home. Depriving a person who lacks capacity to consent to arrangements made for their care and treatment in other settings will only be lawful following an order of the Court of Protection. 11. Equality Impact Assessment All public bodies have a statutory duty under the Race Relation (Amendment) Act 2000 to “set out arrangements to assess and consult on how their policies and functions impact on race equality.” This obligation has been increased to include equality and human rights with regard to disability age and gender. The Trust aims to design and implement services, policies and measures that meet the diverse needs of our service, population and workforce, ensuring that none are placed at a disadvantage over others. In order to meet these requirements, a single equality impact assessment is used to assess all its policies/guidelines and practices. This Policy / procedure / guidance (delete as appropriate) was found to be compliant with this philosophy (see appendix C). 12. Training Needs Analysis In order to ensure that policies, guidelines and protocols are introduced and work effectively, there is a need to provide adequate training and instruction. As a result, the author(s) of this document have carried out a training needs analysis which has identified the staff who require training, the methodology of training delivery and the frequency that the training will be provided. The policy author must ensure that the details of this training is passed to the Training and Education Team and where necessary, this will then be included in the Trust Training Prospectus. Training for staff is required at the following level: Basic Awareness Training: • Corporate Services Team

• District Nurses • Community Matrons • Allied Health Professionals

Advanced Awareness training: • Holme Valley Hospital staff Specialist Training • Mental Health Assessors

• Best Interest Assessors

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13. Monitoring Compliance with this policy

Assessment of compliance with this policy will be made by the following mechanisms:

• Training records for attendance at DoL sessions • Numbers of BIAs and MHAs available for undertaking assessments • Numbers of applications made to NHS Kirklees and numbers completed within required

timescales • Via the CQC monitoring process. • Audit of staff awareness for mental capacity Act and Deprivation of Liberty

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14. References Department of Health (2005) Mental Capacity Act: Code of Practice. Department of Health (2008) Mental Capacity Act (2005) Deprivation of Liberty Safeguards: Code of practice to supplement the main Mental Capacity Act 2005 Code of Practice. Department of Heath (2009) Mental Capacity Act 2005. Deprivation of Liberty safeguards: Forms and record-Keeping. Guide for Managing authorities. Department of Heath (2009) Mental Capacity Act 2005. Deprivation of Liberty safeguards: Forms and record-Keeping. Guide for Supervisory Bodies. Office of Public Guardian (2009) Deprivation of Liberty Safeguards: A guide for primary care trusts and local authorities.

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15. Appendices

A. Definitions Advance decision to refuse treatment

A decision to refuse specified treatment made in advance by a person who has capacity to do so. This decision will then apply at a future time when that person lacks capacity to consent to, or refuse, the specified treatment. Specific rules apply to advance decisions to refuse life sustaining treatment.

Advocacy Independent help and support with understanding issues and putting forward a person’s own views, feelings and ideas.

Age assessment An assessment, for the purpose of the deprivation of liberty safeguards, of whether the relevant person has reached age 18.

Approved mental health professional

A social worker or other professional approved by a local social services authority to act on behalf of a local social services authority in carrying out a variety of functions.

Assessor A person who carries out a deprivation of liberty safeguards assessment.

Best interests assessment

An assessment, for the purpose of the deprivation of liberty safeguards, of whether deprivation of liberty is in a detained person’s best interests, is necessary to prevent harm to the person and is a proportionate response to the likelihood and seriousness of that harm.

Bournewood judgment

The commonly used term for the October 2004 judgment by the European Court of Human Rights in the case of HL v the United Kingdom that led to the introduction of the deprivation of liberty safeguards.

Capacity Short for mental capacity.

The ability to make a decision about a particular matter at the time the decision needs to be made. A legal definition is contained in section 2 of the Mental Capacity Act 2005.

Care home A care facility registered under the Care Standards Act 2000. Care Quality Commission

The new integrated regulator for health and adult social care that, subject to the passage of legislation, will take over regulation of health and adult social care from 1 April 2009.

Carer Someone who provides unpaid care by looking after a friend or neighbour who needs support because of sickness, age or disability. In this document, the term carer does not mean a paid care worker.

Conditions Requirements that a supervisory body may impose when giving a standard deprivation of liberty authorisation, after taking account of any recommendations made by the best interests assessor.

Consent Agreeing to a course of action – specifically in this document, to a care plan or treatment regime. For consent to be legally valid, the person giving it must have the capacity to take the decision, have been given sufficient information to make the decision, and not have been under any duress or inappropriate pressure.

Court of Protection The specialist court for all issues relating to people who lack capacity to make specific decisions.

Deprivation of liberty

Deprivation of liberty is a term used in the European Convention on Human Rights about circumstances when a person’s freedom is taken away. Its meaning in practice is being defined through case law.

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Deprivation of liberty safeguards

The framework of safeguards under the Mental Capacity Act 2005 for people who need to be deprived of their liberty in a hospital or care home in their best interests for care or treatment and who lack the capacity to consent to the arrangements made for their care or treatment.

Deprivation of liberty safeguards assessment

Any one of the six assessments that need to be undertaken as part of the standard deprivation of liberty authorisation process.

Deputy Someone appointed by the Court of Protection with ongoing legal authority, as prescribed by the Court, to make decisions on behalf of a person who lacks capacity to make particular decisions.

Donee Someone appointed under a Lasting Power of Attorney who has the legal right to make decisions within the scope of their authority on behalf of the person (the donor) who made the Lasting Power of Attorney.

Eligibility assessment

An assessment, for the purpose of the deprivation of liberty safeguards, of whether or not a person is rendered ineligible for a standard deprivation of liberty authorisation because the authorisation would conflict with requirements that are, or could be, placed on the person under the Mental Health Act 1983.

European Convention on Human Rights

A convention drawn up within the Council of Europe setting out a number of civil and political rights and freedoms, and setting up a mechanism for the enforcement of the obligations entered into by contracting states.

European Court of Human Rights

The court to which any contracting state or individual can apply when they believe that there has been a violation of the European Convention on Human Rights.

Guardianship under the Mental Health Act 1983

The appointment of a guardian to help and supervise patients in the community for their own welfare or to protect other people. The guardian may be either a local authority or a private individual approved by the local authority.

Independent Mental Capacity Advocate (IMCA)

Someone who provides support and representation for a person who lacks capacity to make specific decisions, where the person has no-one else to support them. The IMCA service was established by the Mental Capacity Act 2005 and is not the same as an ordinary advocacy service.

Lasting Power of Attorney

A Power of Attorney created under the Mental Capacity Act 2005 appointing an attorney (donee), or attorneys, to make decisions about the donor’s personal welfare, including health care, and/or deal with the donor’s property and affairs.

Life-sustaining treatment

Treatment that, in the view of the person providing health care, is necessary to keep a person alive.

Local authority In the deprivation of liberty safeguards context, the local council responsible for social services in any particular area of the country.

Local health board (LHB)

Local health boards cover the same geographic areas as local authorities in Wales. They work alongside their respective local authorities in planning long-term strategies for dealing with issues of health and wellbeing in their areas.

Main Code The Code of Practice for the Mental Capacity Act 2005.

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Managing authority The person or body with management responsibility for the hospital or

care home in which a person is, or may become, deprived of their liberty.

Maximum authorisation period

The maximum period for which a supervisory body may give a standard deprivation of liberty authorisation, which must not exceed the period recommended by the best interests assessor, and which cannot be for more than 12 months.

Mental Capacity Act 2005

Legislation that governs decision-making for people who lack capacity to make decisions for themselves or who have capacity and want to make preparations for a time when they may lack capacity in the future. It sets out who can take decisions, in which situations, and how they should go about this.

Mental capacity assessment

An assessment, for the purpose of the deprivation of liberty safeguards, of whether a person lacks capacity in relation to the question of whether or not they should be accommodated in the relevant hospital or care home for the purpose of being given care or treatment.

Mental disorder Any disorder or disability of the mind, apart from dependence on alcohol or drugs. This includes all learning disabilities.

Mental Health Act 1983

Legislation mainly about the compulsory care and treatment of patients with mental health problems. It covers detention in hospital for mental health treatment, supervised community treatment and guardianship.

Mental health assessment

An assessment, for the purpose of the deprivation of liberty safeguards, of whether a person has a mental disorder.

No refusals assessment

An assessment, for the purpose of the deprivation of liberty safeguards, of whether there is any other existing authority for decision-making for the relevant person that would prevent the giving of a standard deprivation of liberty authorisation. This might include any valid advance decision, or valid decision by a deputy or donee appointed under a Lasting Power of Attorney.

Qualifying requirement

Any one of the six qualifying requirements (age, mental health, mental capacity, best interests, eligibility and no refusals) that need to be assessed and met in order for a standard deprivation of liberty authorisation to be given.

Relevant hospital or care home

The hospital or care home in which the person is, or may become, deprived of their liberty.

Relevant person A person who is, or may become, deprived of their liberty in a hospital or care home.

Relevant person’s representative

A person, independent of the relevant hospital or care home, appointed to maintain contact with the relevant person, and to represent and support the relevant person in all matters relating to the operation of the deprivation of liberty safeguards.

Restraint The use or threat of force to help carry out an act that the person resists. Restraint may only be used where it is necessary to protect the person from harm and is proportionate to the risk of harm.

Restriction of liberty

An act imposed on a person that is not of such a degree or intensity as to amount to a deprivation of liberty.

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Review A formal, fresh look at a relevant person’s situation when there has

been, or may have been, a change of circumstances that may necessitate an amendment to, or termination of, a standard deprivation of liberty authorisation.

Standard authorisation

An authorisation given by a supervisory body, after completion of the statutory assessment process, giving lawful authority to deprive a relevant person of their liberty in the relevant hospital or care home.

Supervisory body A primary care trust, local authority, Welsh Ministers or a local health board that is responsible for considering a deprivation of liberty request received from a managing authority, commissioning the statutory assessments and, where all the assessments agree, authorising deprivation of liberty.

Unauthorised deprivation of liberty

A situation in which a person is deprived of their liberty in a hospital or care home without the deprivation being authorised by either a standard or urgent deprivation of liberty authorisation.

Urgent authorisation

An authorisation given by a managing authority for a maximum of seven days, which may subsequently be extended by a maximum of a further seven days by a supervisory body, that gives the managing authority lawful authority to deprive a person of their liberty in a hospital or care home while the standard deprivation of liberty authorisation process is undertaken.

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B. Key stakeholders consulted/involved in the development of the policy/procedure

Stakeholders name and designation Key

Participant Yes/No

Feedback requested

Yes/No

Feedback accepted Yes/No

Calderdale and Huddersfield Foundation Trust No Yes Mid Yorkshire Hospitals Trust No Yes Kirklees Metropolitan Council No Yes

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C. Equality Impact Assessment Tool

To be completed and attached to any procedural document when submitted to the appropriate committee for consideration and approval.

Insert Name of Policy / Procedure

Yes/No Comments

1. Does the policy/guidance affect one group less or more favourably than another on the basis of:

• Race No

• Ethnic origins (including gypsies and travellers)

No

• Nationality No

• Gender No

• Culture No

• Religion or belief No

• Sexual orientation including lesbian, gay and bisexual people

No

• Age Yes Only applicable for people over 18 • Disability - learning disabilities, physical

disability, sensory impairment and mental health problems

Yes Provides additional protection

2. Is there any evidence that some groups are affected differently?

Yes Policy deals with people who lack capacity to consent

3. If you have identified potential discrimination, are any exceptions valid, legal and/or justifiable?

Yes Complies with current legislation

4. Is the impact of the policy/guidance likely to be negative?

No

5. If so can the impact be avoided? 6. What alternatives are there to achieving

the policy/guidance without the impact?

7. Can we reduce the impact by taking different action?

For advice in respect of answering the above questions, please contact Tracy Small on 01484 344377 or e-mail at [email protected]

mailto:[email protected]�

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