Deprivation of Liberty Safeguards:
Practice and Procedures Policy
Version / 1Name of responsible (ratifying) committee / Safeguarding Committee
Date ratified / 07/11/2013
Document Manager (job title) / Patient Safety Clinical Coordinator (Adult Safeguarding)
Date issued / 20th January 2014
Review date / January 2017
Electronic location / Clinical Policies
Related Procedural Documents / Mental Capacity Act Policy, Consent Policy, Safeguarding Adults Policy, RCN Restraint Guidance, Restraint Policy
Key Words (to aid with searching) / Mental capacity act; capacity assessment; best interests; deprivation of liberty safeguards
Version Tracking
Version / Date Ratified / Brief Summary of Changes / Author
CONTENTS
1. INTRODUCTION 4
2. PURPOSE 4
3. SCOPE 5
4. DEFINITIONS 5
5. DUTIES AND RESPONSIBILITIES 5
6. PROCESS 6
6.1. Applying for a DoLS Authorisation 6
6.2. Does the Mental Health Act 1983 apply? 7
6.3. When else can’t a DoLS be used? 7
6.4. Completing the DoLS application forms. 8
6.5. Who completes the DoLS forms? 8
6.6. What happens to the forms once completed? 8
6.7. Who else needs a copy of the forms? 8
6.8. What happens next? 9
6.8.1. A Standard DOLS Authorisation is granted 9
6.8.2. A Standard DoLS Authorisation is refused 10
6.9. Unauthorised Deprivations of Liberty 10
7. TRAINING REQUIREMENTS 10
8. REFERENCES AND ASSOCIATED DOCUMENTATION 11
9. EQUALITY IMPACT STATEMENT 11
10. MONITORING COMPLIANCE WITH, AND THE EFFECTIVENESS OF, PROCEDURAL DOCUMENTS 11
Appendix 1: Urgent Authorisation 12
Appendix 2: Request for a standard authorisation 18
QUICK REFERENCE GUIDE
For quick reference the guide below is a summary of actions required. This does not negate the need for the document author and others involved in the process to be aware of and follow the detail of this policy.
1. INTRODUCTION
The Mental Capacity Act Deprivation of Liberty Safeguards (DoLS) were introduced in April 2009. These safeguards protect vulnerable adults who lack capacity to make certain decisions regarding their care, treatment or residence and are, or may, become deprived of their liberty within a hospital or care home. DoLS authorisation provides a legal framework and protection when a deprivation of liberty is considered to be unavoidable and in the persons best interests.
DoLS were introduced in response to the 2004 ‘Bournewood judgment’ in the European Court of Human Rights (HL v UK (Application No: 45508/99)). This case was brought by carers of an autistic man who was kept at Bournewood Hospital against their wishes. The Court found that the circumstances by which HL was admitted to and kept in hospital breached the human right to liberty (Article 5(1) European Convention of Human Rights Deprivation of liberty) and also of Article 5(4), the right to have the lawfulness of detention reviewed by a court.
Use of the DoLS Authorisation can avoid similar breaches of human rights and provides protection for people:
· Who lack the mental capacity specifically to consent to treatment and care in either a hospital or care home:
And
· The care can only be provided in circumstances that amount to a deprivation of liberty and;
· The care is in their best interests to protect them from harm; and
· Detention under the Mental Health Act 1983 in not appropriate for the person at that time.
DoLS are underpinned by the five key principles of the Mental Capacity Act:
· A presumption of capacity - every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;
· The right for individuals to be supported to make their own decisions - people must be given all appropriate help before anyone concludes that they cannot make their own decisions;
· That individuals must retain the right to make what might be seen as eccentric or unwise decisions;
· Best interests – anything done for or on behalf of people without capacity must be in their best interests; and
· Least restrictive intervention – anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms
2. PURPOSE
This policy outlines the legal framework around DoLS and gives guidance on the local policies, practice and procedures that should be followed by Portsmouth Hospitals NHS Trust staff when working with individuals who may lack mental capacity or are or may become deprived of their liberty.
All persons working in a professional or paid role with people who may lack mental capacity have a legal duty to have regard to the Mental Capacity Act Code of Practice. Staff should view this guidance as supplementary to the statutory Mental Capacity Act Code of Practice and the DoLS Code of Practice.
Both Codes of Practice are available on the Safeguarding Adults departmental intranet site and also on the Department of Health website: www.dh.gov.uk
It is a requirement of our registration with the Care Quality Commission that they be notified of all applications for a DoLS authorisation and its outcome. It is vital that a copy of the DoLS application forms are sent to Trust Safeguarding as this provides the trigger for the CQC notification.
3. SCOPE
All staff working within the Trust are likely to come into contact with vulnerable people who may lack the mental capacity to consent to care or treatment where it may be necessary to deprive that person of their liberty in their best interests, in order to protect them from harm.
DOLS authorisations can only be granted for persons aged 18 years and over. For all queries regarding mental capacity and consent to or refusal of treatment and care for those aged 16-18 years, please contact the consultant pediatrician on call or the Legal Department for advice (ext 6527 or via Hospital Duty Manager out of Hours).
Assessing mental capacity and making decisions for those unable to do so for themselves is an interdisciplinary and/or multidisciplinary issue. Therefore, this policy applies to all permanent, locum, agency and bank staff of Portsmouth Hospitals NHS Trust and the MDHU (Portsmouth), including doctors, nurses, allied health professionals, support staff, social care professionals and managers.
Whilst the policy outlines how the Trust will manage DoLS it does not replace the personal responsibilities of staff with regard to issues of professional accountability for governance.
In the event of an infection outbreak, flu pandemic or major incident, the Trust recognises that it may not be possible to adhere to all aspects of this document. In such circumstances, staff should take advice from their manager and all possible action must be taken to maintain ongoing patient and staff safety.
4. DEFINITIONS
Deprivation of Liberty Safeguard – a legal authorisation that allows a managing authority to deprive someone who lacks mental capacity of their liberty.
Mental capacity - Mental capacity is the ability of an individual to make decisions about specific aspects of their life.
Mental Incapacity - an inability to make a particular decision at a particular time due to “an impairment or disturbance in the functioning of their mind or brain”.
A person may be assessed as lacking capacity if they have any impairment of the brain or mind, and are unable to do one or more of the following four things:
· Understand information given to them
· Retain that information long enough to be able to make the decision
· Weigh up the information available to make the decision
· Communicate their decision
Managing Authority - the organisation responsible for the care home or hospital applying for the DoLS authorisation i.e. Portsmouth Hospitals NHS Trust
Supervisory Body / Authority – the Local Authority which covers the persons normal place of residence. Local Authorities are responsible for considering a DoLS request, arranging the required assessments and agreeing or denying a DoLS authorisation.
5. DUTIES AND RESPONSIBILITIES
Chief Executive – To ensure that the Trust complies with relevant legal and statutory requirements related to the Deprivation of Liberty Safeguards.
All Consultants should have a working knowledge of the MCA Code of Practice and will act as decision makers and are responsible for ensuring their teams complete the relevant assessments and documentation. They will also provide guidance within their teams.
All Managers - To be aware of Trust Policy and Guidelines and to ensure their Staff comply with the requirements of these documents.
The Learning and Development Department will facilitate the provision of e-learning opportunities for all staff groups at induction and in line with Essential Skills Policy.
Clinical Service Centre Management Teams will identify key clinicians to undertake additional training and ensure effective cascade of key information to staff groups.
Medical staff (ST3 and above) are responsible for completing both the urgent and standard authorisation forms and are designated signatories for the DoLS forms.
Duty Matrons and Hospital@Night can act as designated signatories if required out of hours.
Individual members of staff must ensure they follow this policy.
The Governance Department, once informed by Adult Safeguarding is responsible for all CQC DoLS notifications.
Safeguarding Adult Lead Nurse is responsible for collation of DoLS data and reporting of any known instances of an unauthorised DoLS.
CSC Safeguarding Operational Leads will act as an information resource within their area and across the Trust, providing support and education as required.
6. PROCESS
6.1. Applying for a DoLS Authorisation
Decide if the current situation may equate to a deprivation of liberty.
A DoLS authorisation cannot be used in order to force treatment or care on a person who has the mental capacity to a make a decision about the proposed treatment, care and the manner and location in which it is to be provided.
DoLS only apply to people who lack the mental capacity to decide whether to remain in a hospital or care home for treatment and care. Whether a particular situation amounts to a deprivation of liberty and therefore needs to be authorised under the DoLS provisions is a legal question and is decided on the facts of the individual case. There is no one particular restriction of circumstance that is the defining factor and case law is constantly reviewing this.
The law draws a distinction between a ‘restriction of movement’ and a ‘deprivation of liberty’. Restriction of movement does not need to be authorised under the DoLS provisions. However the principles of the Mental Capacity Act 20005 apply to any restriction of movement. In particular, if it should be deemed necessary to do so in the persons best interest, it must be a proportionate response to the assessed risks and for as short a period as necessary. If the limitations or restrictions placed upon person may be considered mild or moderate in nature then continuing to accommodate the person in hospital, in their best interests can be lawful under the MCA.
When considering if a situation amounts to a deprivation of liberty the type, duration, proportionality, effects and manner of implementation of the measure in question needs to be considered. Professionals need to consider the guidance in this policy and the Codes of Practice.
Factors to consider include:
· Restraint is used, including sedation, to admit a person to an institution where that person is resisting admission.
· The patient would be prevented from leaving hospital or care home if they attempted to do so.
· Professionals exercise complete control over the care and movements of a person for a significant period
· A request by carers to discharge a patient to their care is refused by a hospital or care home.
· Professionals exercising control over assessments, treatment, contacts and residence
· The person is unable to maintain social contacts because of restrictions placed on visitors or movements by the hospital or care home.
· The person loses autonomy because they are under continuous supervision and control.
Professionals should particularly take into account the wider context of these factors, the effect on the person in question and their views; the views of family and carers and the benefit that any restrictions are aimed to give. DoLS Decision Making Guidance has been developed and offers further information on the circumstances that could equate to a deprivation of liberty within the acute hospital setting (Available on Safeguarding Adult intranet site).
In the situation where the person to be admitted is already subject to a DoLS authorisation in a care home, then it is very likely that the Trust will need to apply for DoLS authorisation in order to effect admission. For elective cases this should be applied for in advance of the planned admission date and it is the admitting clinicians’ responsibility to ensure this is completed.
6.2. Does the Mental Health Act 1983 apply?
When a person lacking mental capacity is in a hospital or care home, receiving treatment for a mental disorder and is or is likely to have their liberty deprived consideration should be given as to whether to use the provisions of the Mental Health Act rather than DoLS. If the person fits the criteria for a mental health section to be applied then that should be the chosen route.
A mental health section does not normally allow treatment of a physical problem or illness that is unrelated to their mental health condition. In these circumstance a DoLS may be required, but the law is complex so senior clinical and legal advice should be sought.
Factors that may indicate use of the Mental Health Act rather than DoLS include:
· The patients lack of capacity to consent to treatment and care is fluctuating or temporary and the patient is not expected to consent when they regain capacity. This may be particularly relevant to patients having acute psychotic, manic or depressive episodes;
· A degree of restraint needs to be used which is justified by the risk to other people but which is not permissible under the MCA because, exceptionally, it cannot be said to be proportionate to the risk to the patient personally; and
· There is some other specific identifiable risk that the person or others might potentially suffer harm as a result. For example, if there is a risk that the person may need to be returned to the hospital or care home at some point in a manner that would not be authorised under DoLS.