Liberty Protection Safeguards Tuesday 17 December Newcastle | Leeds - - PowerPoint PPT Presentation

Newcastle | Leeds | Manchester

Tuesday 17 December

Liberty Protection Safeguards

Newcastle | Leeds | Manchester

SSID - WH Visitor | Password - W@rdh4d@w4y30

Housekeeping

2

Liberty Protection Safeguards

December 2019 Adam Fullwood 39 Essex Chambers

Deprivation of liberty

• Article 5:
• Objective element: confinement to restricted space for non-

negligible period of time: ‘the acid test’

• Subjective element: either cannot or will not give valid consent
• Imputable to the state: the state knows or ought to know of the

confinement

Effect

• Procedure prescribed by law
• Right of challenge
• Damages

Current MCA scheme

• DoLS:
• 18+
• Hospitals & care homes
• Urgent for 7 days; renewable x1
• No definition

Scheme in numbers

• Post-2012

7157 8982 11887 13715 137,540 195,840 217,235 3300 8980 11885 13040 62,645 105,055 151,970 181,785 74895 90785 108,545 125,630 50000 100000 150000 200000 2009-10 2010-11 2011-12 2013-14 2014-15 2015-16 2016-17 2017-18

Requests Completed Backlog

227,40

Specific problems

• Limited to care homes, hospitals
• Complexity of DoLS
• 18+ age
• Delays
• Resources
• Cheshire West test

Mental Capacity (Amendment) Act 2019

• Main statutory provisions:
• Revised s.4B: can deprive (1) to prevent deterioration; (2) pending LPS; (3) pending COP
• Provisions re Court of Protection
• Schedule AA1:
• Setting neutral and more than one setting, includes transport, from age 16
• Authorisation by responsible body – (1) Hospital (Trust); (2) CHC (CCG); (3) LA for all other cases (including self-funders and

independent hospitals). Potential for delegation of some tasks to care home managers in some cases

• Conditions/criteria: incapacity, mental disorder and necessity and proportionality (of risk to self alone)
• Consultation with P, named person, carer anyone interested in P’s welfare, deputy/attorney, IMCA or appropriate person
• Additional scrutiny by AMCP in ‘objection’ cases (and indep hospitals) – reviewer cannot be involved in d2d care / treatment
• (Broadly) opt-in representation and support by appropriate person/advocate (latter on ‘all reasonable steps’ basis)
• Provisions for variation, review and renewal (1 year, 1 year then up to 3 years)
• (Broadly) the same interface between the MCA and MHA as under DOLS (for now)

Code of Practice will provide much detail

Interim & emergency

• Revised s.4B – replaces urgent authorisations
• D can deprive P of liberty in 3 cases:
• While court decision being sought;
• Pending LPS assessment, or
• In emergency
• Must have a reasonable belief in lack of capacity & DoL and must

be necessary to deliver life-sustaining treatment or vital act

Arrangements that cannot be authorised

• “Mental health arrangements” for in-patient treatment for mental disorder to which person objects

(as with DoLS) (para 54) (but subject to LD exception)

• Nb that could have LPS alongside MH detention for additional deprivation of liberty to which patient subject

for physical health treatment – e.g. Dr A case.

• Arrangements which conflict with MH requirements (e.g. s17 leave, guardianship, CTO,

conditional discharge)

• (According to Government, but not on face of Act) arrangements conflicting with decision of

attorney/deputy as to where the person is to live

• Nb ADRT ‘no refusal’ provision not carried forward

Responsible body

• If carried out mainly in an NHS hospital: the hospital manager (in most cases the Trust that

manages the hospital in England or the local health board in Wales)

• If carried out mainly through the provision of NHS continuing health care: the relevant clinical

commissioning group (CCG) in England or local health board in Wales

• Otherwise: the responsible Local Authority, identified (in most cases) on basis of OR, but physical

location in the case of independent hospital

• NB, the RB identity can change (e.g. if person becomes eligible for CHC care) without necessarily

ending authorisation – but limits to what new RB can do to vary authorisation

The process

• Responsible body takes necessary steps to secure determination of

conditions, consultation, advocacy/appropriate person support and pre-authorisation review (by AMCP where relevant)

• RB can outsource steps, except for pre-authorisation review, to

care home managers where arrangements (for 18 plus) are in care homes

Conditions for authorisation

• Determination on capacity assessment: lack of capacity to consent to arrangements (no express

provision for fluctuating capacity)

• Medical assessment: person has a mental disorder (not limited on face to s.12 psychiatrists)
• Necessary and proportionate assessment: likelihood of harm to self alone (not to others), and

express requirement to have regard to cared-for person’s wishes and feelings

• Can make use of existing assessments for capacity/medical assessment, not for N&P

Paras1; 21-22

Care homes

• If RB delegates, care home manager can:
• Coordinate process and produce statement
• Make determinations as to capacity/mental disorder based upon assessments by others
• Undertake consultation
• Produce draft authorisation record
• Care home manager cannot:
• Carry out assessments themselves
• Rely upon assessments conducted by those with “prescribed connection” to care homes (waiting to see regulations)
• Determine that the deprivation of liberty is necessary and proportionate
• NB: for Code
• Criteria for delegation
• Can care home manager refuse delegation?

Consultation

• By care home manager if RB has delegated to them,
• therwise by RB
• With statutory list, including cared-for person
• Main purpose to try to ascertain the cared-for person’s

wishes or feelings in relation to the arrangements

Pre-authorisation review

• Reviewer not involved in day to day care and treatment of person,

providing treatment to cared-for person or with prescribed connection to care home in case of care home arrangements

• Task to review information (not interview cared-for person) and

decide whether reasonable for RB to conclude authorisation conditions are met

AMCP pre-authorisation review

• Review:
• In ‘objection’ cases
• In independent hospital cases
• Where RB referred to AMCP and AMCP accepted
• AMCP to be approved by LA (para 39)
• Cannot be involved in day to day care/treatment of individual
• Task to review information to determine whether conditions are met
• Must meet individual if appears practicable or appropriate, and may consult and take any other steps

necessary

Authorisation

• Where conditions met (including pre-authorisation review by AMCP if required and

preparation of draft authorisation record) RB may authorise (para 17)

• Government intention that will be authorisation in advance of arrangements (up to 28

days) (para 28(2))

• Then creation of authorisation record (para 27) – including programme for review
• Effect of authorisation – defence to liability to acts done pursuant to authorisation (not

acts of care and treatment themselves) (new Section 4C)

Duration, termination & variation

• Can be renewed, on first occasion for up to 12 months, and on second and subsequent occasions for

up to 3 years (para 32); can delegate requirements to care home manager in care home case

• Can be terminated by RB, and will cease to have effect if automatic cessation where RB determines

it should or where believes or ought reasonably to suspect that authorisations conditions no longer met (para 29)

• Protection for those acting on basis of authorisation if no reason to believe that has come to an end (para 31)
• Can be varied after consultation and where reasonable (but Government view cannot vary to cater

for entirely new arrangements e.g. after emergency admission to hospital) (para 37)

Safeguards

• Reviews – RB unless delegated by RB to care home
• Planned programme of reviews in authorisation record (para 27)
• Also where variation of conditions (para 38)
• Representation and support by approp. person, on an opt-in basis where have capacity and where would

be in BI where lack capacity (para 41)

• Where no appropriate person, “all reasonable steps” to provide advocate on opt-in basis with capacity, and

unless provision not in BI where lack capacity (para 41)

• Appropriate person eligible for advocacy support as well on “all reasonable steps” opt-in basis (para 42)
• Right of access to court
• S.21A replaced with s.21ZA – and non-means-tested legal aid
• Section 16A abolished (eligibility fetter on Court of Protection)

Deprivation of liberty, contd.

• Government proposed ‘exclusionary’ definition – i.e. if X then not deprived of liberty
• Lords advanced alternative definition codifying acid test
• Government compromise – no statutory definition but guidance in Code of Practice (to be reviewed regularly)
• No provision for advance consent (as Law Comm had proposed) but Government thinks works in palliative care setting as matter of interpretation of concept of

subjective element of consent

• Attorney/deputy cannot consent (as at present) to prevent confinement being deprivation of liberty
• And nb, parent cannot seek to authorise confinement for 16/17 year old who cannot consent to confinement: Re D [2019] UKSC 42

Re D

Issue: “39. […] whether the restrictions fall within normal parental control for a child of this age or do they not? If they do, they will not fall within the scope of article 5; but if they go beyond the normal parental control, article 5 will apply.” “[A] mentally disabled child who is subject to a level of control beyond that which is normal for a [non-disabled] child of his age has been confined within the meaning of article 5.” “49 [It is] not within the scope of parental responsibility for D’s parents to consent to a placement which deprived him of his liberty. Although there is no doubt that they, and indeed everyone else involved, had D’s best interests at heart, we cannot ignore the possibility, nay even the probability, that this will not always be the case. That is why there are safeguards required by article 5. Without such safeguards, there is no way of ensuring that those with parental responsibility exercise it in the best interests of the child, as the Secretaries of State acknowledge that they must.” Where a 16/17 yo cannot (or does not) consent to confinement, and state knows or ought to know of the circumstances, then it’s a DOL. Parent(s) cannot give valid consent.

DoL?

Max is 24 years old, has a mild learning disability and lives with two other residents who receive 24-hour shared staff support. Owing to his agitation and anxiety, Max is prescribed medication with a calming effect. He is employed from 9am to 4pm, five days per week in the local garden centre which he is able to get to and from independently. He has a tenancy for his bedroom and can call upon staff members for assistance in the morning and evening if he requires it. If he wishes to see his family at weekends, a member of staff will take him and be there throughout the contact session owing to previous incidents of aggression from his brother.

DoL?

Cyril is 70 years old with Alzheimer’s dementia and severe mobility difficulties. Moved to a one-bed apartment as part of a specialist dementia scheme of extra care housing which was purchased by his financial deputy. From 9am to 8pm he has a carer with him to assist him into and out of bed as well as to attend to his everyday needs. During the night he has pressure sensors around the bed to alert staff to a fall. Occasionally he is aggressive to staff which requires them to withdraw. Staff have unrestricted access to the apartment by means of a safe key. Cyril is able to leave the property but only with the carer.

DoL?

• Betty is 83 years old with Alzheimer’s and has been living in her flat

for 39 years with husband Derek. Family enclosed garden for safety and Derek makes sure the external doors are locked at night. Betty can go into the garden by herself during the day but Derek feels it’s unsafe for her to go further afield unless he or someone else goes with her. Often he does not want to go out so she can’t. She receives 3 x 1 hour visits per day from dementia carers who assist with personal care and meals.

Questions?

Adam.Fullwood@39essex.com

Newcastle | Leeds | Manchester

COP Mediation Pilot Scheme

Alexia Dawson, Associate

Newcastle | Leeds | Manchester

• Started 1 October 2019.
• To run for 12 – 18 months.
• Formally evaluated by academics.

Background to scheme

Newcastle | Leeds | Manchester

• Only applies to cases issued in the Court of Protection.
• Scheme will provide:
• Suitably qualified and experienced mediators at a reduced fee.
• Use of scheme documentation.
• Participation in research.

COP Mediation pilot

Newcastle | Leeds | Manchester

• Can the parties reach an agreement as to what is P’s best interests.
• P must lack capacity.
• Must be able to ascertain P’s wishes and feelings.

Aims of scheme

Newcastle | Leeds | Manchester

• Health and welfare disputes – medical treatment, residence, care and support, deprivation of liberty.
• Serious medical treatment.
• Property and financial affairs.
• Mixed health and welfare and property and affairs.

What cases are suitable?

Newcastle | Leeds | Manchester

• Examples of cases which are not suitable.

What cases are not suitable?

Newcastle | Leeds | Manchester

• Unlikely before a formal best interests meeting.
• Early mediation beneficial in relation to costs and Court time.
• P’s Litigation Friend/representative will need to have seen papers unless they have prior

knowledge of P.

Timing of mediation

Newcastle | Leeds | Manchester

• Mediation process is voluntary.
• Judges can encourage/warn of impact of none compliance.

Process

Newcastle | Leeds | Manchester

• Group of specially trained mediators identified by pilot.
• All will have minimum level of experience and qualifications.

Mediators

Newcastle | Leeds | Manchester

• Litigation capacity.
• Otherwise – does P want to be involved?
• Wishes and feelings to be ascertained.
• Who represents P?

Participation of P

Newcastle | Leeds | Manchester

• Find a mediator.
• Agreement to mediate.
• Venue.
• Who is invited?

Process

Newcastle | Leeds | Manchester

• Pre-mediation questionnaire.
• Pre-mediation meeting.

Process

Newcastle | Leeds | Manchester

• Mediation:
• Authority to settle declaration of confidentiality.
• Can be Round Table/shuttle/combination.
• If agreement is reached-what next?

Process

Newcastle | Leeds | Manchester

• Post mediation:
• Withdrawal of proceedings.
• Agreement of Order.
• Evaluation and research.

Process

Newcastle | Leeds | Manchester 43

Newcastle | Leeds | Manchester

Robert Rushton, Partner

Advanced Decisions to Refuse Treatment

Newcastle | Leeds | Manchester

• Statutory framework in relation to Advance Decision to Refuse Treatment (ADRT)
• Patient autonomy
• Assisting client to manage issues including contact with the press
• Lessons learned from case

Mental Capacity Act 2005

Newcastle | Leeds | Manchester

• ADRT:-
• Decision by a person after s/he has reached 18 and when s/he has capacity to do so.
• a) In circumstances which are specified and where a specified treatment is proposed to be carried out
• r continued.
• b) At that time s/he lacks capacity to consent to the carrying out or continuation of treatment.
• c) The specified treatment is not to be carried out or continued.
• In summary, is a decision refusing the giving of or continuing of specified medical treatment if at a time

in the future at which that treatment is to be given or continued the decision maker has lost capacity to consent to it.

Section 24 Mental Capacity Act

Newcastle | Leeds | Manchester

• No formalities prescribed by the MCA 2005 for creation of a ADRT
• Unless Section 25 applies (refusal of life sustaining treatment)
• Evidential difficulties with oral ADRT

Formalities for ADRT

Newcastle | Leeds | Manchester

• Additional statutory requirements for decisions to refuse life sustaining treatment:-
• Life sustaining treatment defined as treatment which is necessary to sustain life.
• Made in writing
• Signed by the decision maker in the presence of a witness, and a witness to sign the

document in the presence of the decision maker.

• Includes a clear and specific written statement by the decision maker that the decision is

to apply to the specified treatment even if the decision maker’s life is at risk.

Section 25 Mental Capacity Act

Newcastle | Leeds | Manchester

• Spinal injury (quadriplegic) following a cycling accident in March 2015.
• Deteriorating condition

Case Study

Newcastle | Leeds | Manchester

• Wished to refuse the following specific treatments:-
• Admission into hospital under any circumstances whatsoever
• Use of IV fluids and parenteral nutrition.
• The use of CPR
• IV injections of antibiotics or any other treatment which involved being taken into

hospital.

• The use of mechanical ventilation.

ADRT document dated February 2019

Newcastle | Leeds | Manchester

• Explicit consent to be obtained in relation to who the ADRT is to be shared with.
• Consider whether any of the treating clinicians or carers may have a conscientious
• bjection.
• Important that all issues discussed are reflected in the ADRT in relation to the end of life

care plan and palliative care – evolving document

• At all stages throughout the process the patient’s capacity should be assessed before

making any decisions in relation to treatment. If a patient still has capacity they should be consulted with until they lack capacity when the ADRT becomes effective.

• Discuss with Coroner in advance of the death – obtain patient’s consent to share

information in relation to the ADRT with the Coroner.

General Issues

Newcastle | Leeds | Manchester

• Capacity assessment performed in October 2019 by a Clinical Psychologist.
• Completed 2 depression scales – both within the “normal range”
• Engaged well when mood was being assessed. The scores on two psychometric

measures of depression were in the normal range which was in keeping with the

• bservations of the presentation throughout the assessment.
• Concluded that did not have depression and that understood the implications of refusing

treatment.

Capacity issues

Newcastle | Leeds | Manchester

• Lessons learned

Capacity issues

Newcastle | Leeds | Manchester 54

wardhadaway.com @WardHadaway Ward Hadaway Newcastle | Leeds | Manchester