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Human Rights and Deprivation of Liberty in Care Homes (Wales) Policy

Introduction

This policy sets out {{org_field_name}}’s approach to the people who use its service who might lack the mental capacity to make decisions about their care and treatment and who could have their freedom restricted to the point where they are deprived of their liberty.

The service’s policy has been established to comply with the provisions of the Human Rights Act 1998, the Mental Capacity Act 2005, the Social Services and Well-being (Wales) Act 2014, and the Regulated Services (Service Providers and Responsible Individuals) Regulations 2017, formed under the Regulation and Inspection of Social Care (Wales) Act 2016.

This policy should be read and used in conjunction with the service’s broader Mental Capacity Act 2005 policy.

Safeguarding is needed for any person who:

1. lacks the capacity to consent to the arrangements being made for their care and treatment
2. has a mental disorder
3. needs the care and support arrangements (resulting in loss of liberty) to prevent their coming to harm provided that these will be proportionate in relation to the likelihood and seriousness of the harm that might be caused by any failure to make those arrangements.

The home then follows the definition of loss of liberty established by the Supreme Court in March 2014 (known as “Cheshire West”). The Supreme Court judgment stated that anyone has been deprived of their liberty if they lack the mental capacity to make decisions about their care and residence, and:

• is under the responsibility of the state in some way
• is subject to continuous supervision and control
• lacks the choice to leave their care setting.

The service also follows Law Society (2015) guidance in respect of the practices and measures it takes that could restrict the liberty of a person who lacks the mental capacity to act in their own interests.

Loss of liberty safeguarding principles

The policy sets out to show how the service meets the legal requirements to provide safeguards for people who might be deprived of their liberty whenever decisions are needed about their care and treatment, which they cannot make themselves because of lack of mental capacity. As a care service, there are several circumstances in which this policy might need to be followed, such as where:

• the service is asked to admit someone who might have lacked the mental capacity to decide to apply and who might be deprived of their liberty by being compulsorily admitted to the home
• relatives and representatives of someone receiving care services, the staff of the service, or medical staff consider that the person needs additional care or treatment in the home or in a hospital, when the person does not have the capacity to make that decision and might be deprived of their liberty if subject to the treatment being proposed
• the home seeks to serve notice on a resident who lacks the mental capacity to decide on their future residence and who might be deprived of their liberty as a result of having to move elsewhere
• someone receiving services might lack the mental capacity to take some or all of their own decisions about their activities of daily living and who might also need certain restrictions to avoid their being harmed which could be interpreted as a deprivation of their liberty.

The service supports the following principles of the Mental Capacity Act.

1. Individuals must be assumed to have capacity unless it is established that they lack capacity.
2. Individuals are not to be treated as unable to take a decision unless all practicable steps have been taken without success to help them to take the decision.
3. Individuals must not be treated as unable to take a decision just because they might or have been known to make an unwise decision.
4. When people take a decision on behalf of someone else who lacks capacity, they must act in that person’s best interests.
5. If anyone takes a decision on behalf of someone lacking capacity at the time they must act in the least restrictive way possible, which is in their best interests to minimise the effects on that person’s rights and freedom of action.
6. No person should have his or her freedom restricted to the point where he or she may be deprived of his or her liberty unless it has been proved that it is the only reasonable thing to do in the person’s best interests and keeps him or her safe from harm.

{{org_field_name}}’s policy is that people receiving services have the same freedom and rights as anyone living in the wider community. It will not admit anyone who is being deprived of their liberty because of being accommodated here unless it can be clearly shown that it is in their best interests to be here in line with mental capacity law.

It will also seek authorisation to deprive someone of their liberty (and so become subject to the deprivation of liberty safeguards) only where there are clear grounds for thinking that either the person is already deprived of their liberty, which needs authorisation, or it is clearly in their best interests for the service to seek authorisation.

The service understands that each case must be assessed on its merits. As a guide, the service uses the case examples identified in Law Society publications on the subject to indicate the sorts of situations that might be interpreted as deprivation of liberty and therefore requiring the safeguards to be put into place. These include the following.

• Where a person requiring admission to {{org_field_name}}, or from {{org_field_name}} to a hospital, is resisting admission and could only be admitted against their will or by force.
• Where medication might have to be given forcibly, against the relevant person’s will.
• Where staff consider they need to exercise complete control over the care and movements of a person for a long time.
• Where staff consider they need to make all decisions on a relevant person’s behalf, including choices relating to assessments, treatments, including life-threatening conditions and emergencies, reception of visitors and social relationships.
• Where staff or other professionals consider that they must take responsibility for deciding if a relevant person can be released into the care of others or allowed to live elsewhere.

[See also Appendix for a checklist of liberty depriving measures identified in the Law Society (2015) guidance — which it must be emphasised do not necessarily represent standard practice in {{org_field_name}}. The home refers to it to for awareness of their potential for depriving people receiving care of their freedoms.]

Procedures

1. {{org_field_name}} works closely with the responsible local authorities involved to ensure that residents are fully safeguarded and their human rights are protected.
2. If we have a situation where one of the people who uses our service requires care, treatment or some form of intervention about which they cannot take a decision because of lack of mental capacity, but it is felt in their best interests to proceed with it, we first try to ascertain if it would lead to the person having being deprived of their liberty as a result by discussing it with the relevant safeguarding team.
3. If the answer is yes it would or it could (and in line with the mental capacity act principles there is no less restrictive way of proceeding), we would then apply to the appropriate supervisory authority. We understand that this, in the case of a care home, is the local authority where the person’s would be ordinarily resident and responsible for their care arrangements.
4. Under the current arrangements we then request from the person’s responsible safeguarding authority an assessment whether it is in their best interests to be deprived of their liberty to receive the required care and treatment.
5. {{org_field_name}} will decide if it is in the relevant person’s interests to seek an urgent or a standard assessment, which it does by applying to the relevant authority using the forms that it provides for the purpose. In cases of needing an urgent assessment, it expects this to be carried out in line with the requirements of seven days (or 14 if an extension is granted). It expects standard assessments, ie for long-term authorisations, to be carried out in the required 21 days, though it recognises that in practice this is likely to take longer.
6. Before making an application, the service will seek to identify the relevant person’s supervisory authority, which it understands to be the local authority for the area in which the person ordinarily resides, eg the local authority that is funding their care. If the person has no other “ordinary place of residence” then the service will make the application to the local authority in which its head office is situated. The service then works with the responsible authority in following the required assessment procedures.
7. The service recognises that, to comply with the Mental Capacity Act 2005 — Code of Practice and the Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008, the supervisory authority will need to carry out the following assessments:
   a. an age assessment to make sure the person is aged 18 or over
   b. a no-refusal assessment to make sure that the authorisation sought does not conflict with a valid decision such as an advance decision that has already been made
   c. a mental capacity assessment, which should state that the person lacks capacity to decide whether to receive the care and treatment being proposed
   d. a mental health assessment to see if the person is suffering from a mental disorder such as dementia
   e. an eligibility assessment to check that the person should not be considered for detention under the Mental Health Act 1983
   f. a best interests’ assessment; this determines that the proposed course of action would:
   i. amount to a deprivation of liberty
   ii. be in the person’s best interests to be subject to the authorisation
   iii. be necessary to prevent the person from being harmed
   iv. be a proportionate response to the likelihood of suffering harm and the seriousness of that harm.
8. If authorisation is granted, the service will work closely with the person appointed to represent the interests of the person whose liberty had been taken away. It will do this by seeking the least restrictive measures that can be applied within the terms of their care plan and constantly monitoring and reviewing the restrictions that are in the person’s best interests.
9. It will also work closely with the responsible authority to make sure all the required checks are being carried out and to review the authorisation. The service will always want to make sure that the person exercises his or her due rights and entitlements, including the right of appeal.
10. The service will notify the Care Inspectorate Wales (CIW) of the outcomes of any applications for authorisations using the online form found on the CIW website.
11. It will then notify the local authority (and the CIW) if it needs to make changes to the care plan that has been agreed with the responsible authority, eg if new restrictive measures are needed that require variations to the authorisation.
12. The service carries out regular audits of its care plans to identify potential restrictions on a residents’ freedom that could require authorisation and to check that authorisations that have been agreed are still needed.

Relevant Person’s Independent Mental Capacity Advocate/Representative

Throughout its work with a relevant person’s independent mental capacity advocate (IMCA)/representative (RPR) the service will always seek to comply with the Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative) Regulations 2008.

The service understands that an IMCA will be appointed by the responsible authority if a person does not have anyone to represent their best interests. It understands that an RPR, whose appointment is recommended by the best interests’ assessor, will be in most cases a family member or friend of the person concerned. It also understands that the person appointed to represent the interests of the person whose liberty is being deprived has a responsibility to:

• involve as far as possible the person in any decision made on their behalf
• maintain regular face-to-face contact with the person deprived of their liberty
• see if there is a chance that the person may regain capacity and be able to make the decision
• ask if the decision could be delayed to allow this
• ascertain the wishes and feelings of the person, including any views they have expressed in the past and how they should be used to understand what their wishes and feelings might be in this situation (this might include things they have written down or said to other people, or examples of how they have behaved in similar circumstances in the past)
• identify any beliefs or values that the person holds, which could influence the decision-making process, such as religious beliefs, cultural background or moral views.

The service undertakes to ensure that the IMCA/RPR always has access to the person whose liberty is being deprived and co-operates with any “best interests” actions that the RPR proposes.

The service will co-operate with the CQC in their monitoring and inspecting of the standards of practice that the service seeks to achieve in following the deprivation of liberty safeguards for any person subject to them being a resident in the home.

Staff Training

All care staff receive training in the Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards (DoLS) in induction and further training so that they understand the processes involved in taking best interests’ decisions for people lacking mental capacity and under what circumstances the DoLS are likely to be applied.

*The Law Society (2015) Identifying a Deprivation of Liberty: A Practical Guide, Chapter 6: {{org_field_name}} Setting is available at www.lawsociety.org.uk.

Appendix

The Law Society (2015) Identifying a Deprivation of Liberty: A Practical Guide, Chapter 6: {{org_field_name}} Setting — Liberty Restricting Measures and Questions for Front Line Staff. This was published post-Cheshire West.

A. The following are (slightly adapted) examples of potentially liberty-restricting measures that apply in a residential care home for older adults (that could trigger the need for a DoLS in individual cases).

• Having a keypad entry system to which a resident is denied use in order to control his or her movements.
• Using assistive technology such as sensors or surveillance put in place to control movement and restrict actions.
• Using observation and monitoring to control movement and restrict actions.
• Having an expectation that a resident will spend most of his or her days in the same way and in the same place using forms of restraint.
• Allowing a person to only access the community with an escort and go out when that escort is available, never allowing him or her to go out on his or her own because of the risks to personal safety.
• Having a resident confined to his or her rooms with restricted opportunities for access to fresh air and activities (including situations that result from staff shortages).
• Having set times for access to refreshment or activities denying choice of where and when to eat and with whom.
• Having limited choice of meals and where to eat them (including restrictions on residents’ going out for meals or to go out for a drink in a local bar).
• Imposing set times for visits.
• Making use of restraint in the event of objections or resistance to personal care.
• Making use of mechanical restraints such as lapstraps on wheelchairs to restrict movement and behaviour.
• Imposing restrictions on a person’s forming of or expressing an intimate relationship in which they would otherwise be free to engage in.
• Making assessments of risk that are not based on the specific individual, eg assumptions that all elderly residents are at a high risk of falls, leading to restrictions in their access to the community.

B. In addition to the measures described in (A) above, the following additional features may be present in a care home with nursing.

• Administering medication to control behaviour and movements.
• Using restraints in response to a person objecting to receiving personal care as agreed on his or her care plan, eg washing a person in bed because he or she resists going to the bathroom.
• The need for interventions to protect staff, for example, by removing a residents’ false teeth to prevent biting.

C. In addition to the measures described in (A) above, the following additional features may be present in care homes for those with severe and enduring mental health problems.

• Having to take part in specified programmes (eg sex offender treatments) as a condition of a conditional discharge or Community Treatment Order (CTO).
• Being required to comply with medication as a term of a conditional discharge or CTO.
• Having to avoid certain settings (such as playgrounds).
• Being required to live in {{org_field_name}} as a term of a conditional discharge.
• Being subject to a requirement to be escorted when going out (whatever the risk being guarded against).

Note:

Any of the restrictive measures could be introduced at any time during a period of care and treatment that should then result in consideration being given to the need for a DoLS.

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