Feature

posted 13 Nov 2007 in Volume 13 Issue 1

Deprivation of liberty: Part II

Following the European Court of Human Rights judgment in HL v United Kingdom, [2005 40 EHRR 32] the government introduced new procedures for standard and urgent authorisations of deprivation of liberty. Earlier, we discussed when and why a deprivation of liberty might occur. If it is to occur, there is a detailed authorisation procedure to be followed.

The procedure
The ‘managing authority’ of the hospital or care home where the mentally incapacitated person is, or is about to be, deprived of their liberty for care or treatment will be responsible for requesting authorisation for deprivation of liberty from ‘the supervisory body’. If an authorisation is obtained, those who carry out the detention are protected against liability in battery or for wrongful imprisonment but not against liability in negligence, or for acting beyond the scope of the authorisation.1

The managing authority
In the case of an NHS hospital, the managing authority will be the NHS body responsible for running the hospital in which a person is, or is to be, a resident. In the case of a private hospital or care home, the managing authority will be the person registered, or required to be registered, under Part 2 of the Care Standards Act 2000, in respect of the hospital or care home.2 Managing authorities will need systems to identify when a deprivation of liberty of a mentally incapacitated person may be taking place.

The supervisory body
The supervisory body is responsible for authorising deprivation of liberty.
Where the Bournewood provisions are applied to a person in a hospital situated in England, the supervisory body will be:

If a primary care trust (PCT) commissions the relevant care or treatment, that PCT;
If the National Assembly for Wales or a Local Health Board in Wales commissions the relevant care and treatment in England, the National Assembly for Wales;
In any other case, the PCT for the area in which the hospital is situated.3

The supervisory body in a case where the Bournewood provisions are applied to a person in a hospital situated in Wales will be the National Assembly for Wales unless an English PCT commissions the relevant care and treatment in Wales, in which case the PCT will be the supervisory body.4
Whether the care home is situated in England or Wales, the supervisory body will be the local authority for the area in which the person is ordinarily resident. However, if the person is not ordinarily resident in the area of a local authority, the supervisory body is the local authority for the area in which the care home is situated.

Standard authorisations
A managing authority must request a standard authorisation when it appears to them to be likely that, either currently or at some time during the next 28 days, a present or future resident will be accommodated in their hospital or care home in circumstances that amount to a deprivation of liberty.5 If a person who is subject to a standard authorisation moves to a different hospital or care home, the managing authority of the new hospital or care home must request a standard authorisation.6 If a personal welfare order granted by the Court of Protection authorising deprivation of liberty is about to expire and the person will continue to be deprived of their liberty, the managing authority should apply in good time before the expiry of the Court of Protection order for a standard authorisation.7 Standard authorisations are for a maximum period of 12 months and may be renewed. When a person is identified as potentially coming within the scope of the Bournewood provisions, the hospital or care home must establish whether there is a suitable independent person to look after their interests. The managing authority must notify the supervisory body if the managing authority concludes that there is nobody, other than a person engaged in providing care and treatment for the relevant person in a professional capacity or for remuneration, whom it would be appropriate to consult in determining the person’s best interests. In such a case, the supervisory body must instruct an independent mental capacity advocate (IMCA) to represent the relevant person.8 The government has issued a statement of intent regarding regulations, which will specify the information to be included in an application for a standard authorisation. The regulations for England will specify that information must be provided as requested on the standard form. It is intended that this should cover information about:

The person, their age, their mental disorder and other relevant health information, ethnicity and issues relevant to carrying out the assessments – for example if the person was deaf;
Purpose and nature of the proposed deprivation of liberty including relevant care plans and needs assessment;
Contact details for the care home or hospital and lead professionals involved and for the person if they currently reside somewhere else;
Contact details for family friends and carers to contact for the best interests assessment (to the extent that this information is available);
Whether an urgent authorisation has been issued.

Regulations for Wales will be a matter for the National Assembly for Wales, which will give careful consideration to cross-border issues. Six qualifying requirements must be met for a standard authorisation to be granted. The supervisory body must carry out assessments of whether each of these requirements is met within 21 days of the request by the managing authority.9 The qualifying requirements are:

The age requirement
The person must be 18 or over. Anyone who appears to the supervisory body to be suitable may carry out an age assessment.

The mental health requirement
The person must be suffering from mental disorder within the meaning of the Mental Health Act 1983, which will be any disorder or disability of mind. This is subject to the exception that a person with a learning disability can receive Bournewood safeguards whether or not the disability is associated with abnormally aggressive or seriously irresponsible conduct.10 This assessment has to be carried out by a section 12 doctor or a registered medical practitioner who the supervisory body is satisfied has special experience in the diagnosis and treatment of mental disorder.11 The Draft Indicative Code states that where the assessor is Section 12 approved, they must also have undertaken basic Bournewood/Mental Capacity Act 2005 training. Where the doctor is not Section 12 approved, they should have completed Mental Capacity Act 2005 mental health assessor training. Assessing doctors should also possess the published competences for the mental health assessment.12 When carrying out a mental health assessment, the assessor must consider how (if at all) the person’s mental health is likely to be affected by his being a detained resident, and notify the best interests assessor of his conclusions.13

The mental capacity requirement
A person meets the mental capacity requirement if he lacks capacity in relation to the question whether or not he should be accommodated in the relevant hospital or care home for the purpose of being given the relevant care or treatment.14 This should be done in accordance with ss 1-3 of the Mental Capacity Act 2005. The Draft Indicative Code states that in practice this assessment is likely to be usually undertaken by a doctor,15 but the draft regulations provide that such assessments may be done by an approved mental health professional, a social worker, a first-level nurse in mental health or learning disabilities nursing, an occupational therapist or a chartered psychologist.16

The best interests requirement
Four conditions must be met before the person meets the best interests requirement. The first is that the person is, or is to be, a detained resident. The second is that it is in that person’s best interests to be a detained resident. The third condition is that it is necessary for him to be a detained resident in order to prevent harm to himself. Finally, it must be a proportionate response to:

(a) The likelihood of the person suffering harm;
(b) The seriousness of that harm, for him to be a detained resident.17

The Draft Indicative Code states that best interests assessments may be carried out by people who are not approved mental health professionals but possess the relevant skills and experience that would enable them to apply for approved mental health professional status if they so wished. A Bournewood best interests assessor should also have completed basic Bournewood/Mental Capacity Act 2005 training, possess the published competences for Bournewood best interests assessors and have completed specific Bournewood best interests assessor training. The draft regulations provide that best interests assessments may be done by an approved mental health professional, a social worker, a first-level nurse in mental health or learning disabilities nursing, an occupational therapist or a chartered psychologist.18 The best interests assessor must consult with the managing authority of the hospital or care home and must have regard to any relevant needs assessments and care plans prepared in connection with the relevant person being accommodated in the hospital or care home. The managing authority and supervisory body must provide the best interests assessor with any such needs assessment or care plan that has been undertaken by them, or on their behalf.19 The best interests assessor must record in writing the name and address of every interested person consulted by him in determining the patient’s best interests.20 The best interests assessor must state the maximum recommended authorisation period, which may not exceed one year. The supervising body may not grant an authorisation for longer than the period recommended in the best interests assessment.21 The best interests assessor may make recommendations about conditions to be attached to the authorisation, and if the supervisory body accepts such conditions, the managing authority must ensure that they are complied with.22
Paragraph 131 of Schedule A1 requires that the supervisory body must appoint a representative to a person in respect of whom a standard authorisation has been issued. Supervisory bodies are only able to appoint representatives who have been selected for that purpose. The role of the representative is to maintain contact with the person and to support and represent them in matters relating to their deprivation of liberty. The best interests assessor is also responsible for making recommendations about who should be appointed as the person’s representative, and this process should begin as soon as the best interests assessor is appointed.23 The procedure is set out in the Draft Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative and Assessment) Regulations 2007.

The eligibility requirement
Whether a person is eligible for deprivation of liberty is to be determined in accordance with the new Schedule 1A to the Mental Capacity Act. If the eligibility assessor and the best interests assessor are not the same person, the eligibility assessor must request that the best interests assessor provide him with any relevant eligibility information that the best interests assessor may have.24
A person is ineligible for Bournewood detention if he is subject to a hospital treatment obligation (that is detained under ss 2, 3, 4, 35, 36, 37, 38, 44, 45A 47, 48 or 51) under the Mental Health Act and will continue to be detained in hospital under that regime. A person will also be ineligible if the authorisation would be inconsistent with an obligation placed on them under the Mental Health Act 1983 to reside somewhere else. This will affect people who are on leave of absence from detention under the Mental Health Act 1983 or who are subject to guardianship, supervised community treatment or conditional discharge.
Paragraph 84 of the Draft Indicative Code offers the following explanation of the position where the proposed authorisation relates to deprivation of liberty in a hospital wholly or partly for the purpose of treatment of mental disorder. In this case the person will be eligible unless:

They are already detained in hospital under the Mental Health Act 1983 and will continue to be at the time the authorisation is intended to take effect (again there should not have been a request in such a case);
The person is liable to be detained under the Mental Health Act 1983 but is on leave of absence, or is subject to Supervised Community Treatment or conditional discharge. This is because if treatment in hospital is necessary, the person should be recalled to hospital under the Mental Health Act 1983 itself;
The authorisation would be inconsistent with an obligation placed on them under the Mental Health Act 1983, for example a requirement that they reside somewhere else;
They object to being admitted to hospital for that purpose, or to some or all of the treatment for mental disorder they will receive there, and they meet the criteria for an application for admission under section 2 or section 3 of the Mental Health Act 1983.

The final bullet point is important here, since it means that a person who would be eligible to be detained under section 2 or 3 of the Mental Health Act may not be admitted to a hospital under the Bournewood authorisations. Refusal would not render such a person ineligible to be detained in a residential care home under the Bournewood arrangements. This raises an important issue, since the government intends that people detained in residential care homes will be subject to the charging regime, whereas those detained in hospital will not.

The no refusals requirement
The ‘no refusals’ requirement will be met unless one of two situations appertains. The first is that the person has, when capable, made a valid advance decision refusing some or all of the treatment which would be provided if the authorisation were to be granted. The second is where the proposal to place the person in a hospital or care home in circumstances that amount to deprivation of the person’s liberty, or to place them in the hospital or care home at all, would be in conflict with a valid decision of an attorney or a deputy appointed by the court.
Anybody that the supervisory body considers to be appropriate, by virtue of possessing the skills and experience to perform the role, may undertake the ‘no refusals’ assessment, including a person conducting one or more of the other assessments.

Issuing the standard authorisation
The supervisory body must give a standard authorisation if all assessments are positive, and they have written copies of all those assessments. If all the assessments are not positive, the supervisory body must not give a standard authorisation.25
The Draft Indicative Code states that if, in the light of the assessments, the supervisory body does not give a standard authorisation, it must, as soon as practicable after it becomes apparent to it that it is prohibited from giving the authorisation, notify the managing authority, the relevant person, any IMCA involved and every interested person consulted by the best interests assessor accordingly. It must provide the managing authority, the relevant person and any IMCA involved with copies of those assessments that have been carried out.26
A standard authorisation must be in writing and must state the following things:

(a) The name of the relevant person;
(b) The name of the relevant hospital or care home;
(c) The period during which the authorisation is to be in force;
(d) The purpose for which the authorisation is given;
(e) Any conditions subject to which the authorisation is given;
(f) The reason why each qualifying requirement is met.27

Urgent authorisations
Paragraphs 67-83 of Schedule A1 provide a procedure for a managing authority to issue an urgent authorisation authorising deprivation of liberty for up to seven days. A managing authority must give an urgent authorisation where it:

Is required to make a request to the supervisory body for a standard authorisation but believes that the need for a person to be deprived of liberty is so urgent that it is appropriate to begin the deprivation before the request is made;
Has made a request for a standard authorisation but believes that the need for a person to be deprived of liberty has now become so urgent that it is appropriate to begin the deprivation before the request is dealt with by the supervisory body.28

The urgent authorisation must state the name of the person, the name of the hospital or care home, the period during which the authorisation is to be in force and the purpose for which the authorisation has been given.29 An urgent authorisation may be extended once where an application has been made for a standard authorisation and there are exceptional reasons why it has not been possible for the standard authorisation request to be disposed of, and it is essential for the existing detention to continue until the request is disposed of.30 The Draft Indicative Code of Practice says this about extensions:

“It is intended that extension should only occur rarely in exceptional circumstances. An example of when an extension would be justified might be where the supervisory body was satisfied that a person who needed to be contacted by the best interests assessor had been uncontactable, that the assessment could not be relied upon without their input and that extension for the specified period would enable them to be contacted”.31

In this context it is worth mentioning the recent decision of Munby J in Sunderland City Council v PS and CA32 where he said that where a court was authorising deprivation of liberty, the following minimum requirements must be satisfied in order to comply with Article 5:

The detention must be authorised by the court on application made by the local authority and before the detention commences;
Subject to the exigencies of urgency or emergency the evidence must establish unsoundness of mind of a kind or degree warranting compulsory confinement. In other words, there must be evidence establishing at least a prima facie case that the individual lacks capacity and that confinement of the nature proposed is appropriate;
Any order authorising detention must contain provision for an adequate review at reasonable intervals, in particular with a view to ascertaining whether there still persists unsoundness of mind of a kind or degree warranting compulsory confinement.

The Mental Health Act, section 4, allows emergency admission, but requires that an application supported by one medical recommendation be completed prior to admission. This provides authority for the patient to be taken and conveyed to the relevant hospital. There is no procedure here for such emergency applications and there is no provision to take and convey someone to a hospital or care home where they urgently need Bournewood detention. The Mental Health Bill contains a provision introducing a power to take and convey a person to their place of residence under guardianship,33 and guardianship does not authorise deprivation of liberty, only restriction of liberty

Review by the supervisory body
Part 8 of Schedule A1 (paragraphs 94-118) deals with reviews of standard authorisations. The managing authority is required to monitor each person’s case and to request a review if one of the qualifying requirements appears to be reviewable. The person detained may request a review, as may their representative or the managing authority.34 If such a request is made, the supervisory body must carry out a review. They have a discretion themselves to carry out a review at any other time.
A qualifying requirement may be reviewable on one of a number of grounds. The basic grounds are that:

The relevant person does not meet all the qualifying requirements;
The reason why the relevant person meets a qualifying requirement is not the reason stated in the authorisation;
There has been a change in the relevant person’s case and, because of the change, it would be appropriate to vary the conditions to which the authorisation is subject.

If none of the qualifying requirements appears to the supervisory body to be reviewable, then it need take no further action. The supervisory body must, however, carry out a separate review assessment of any requirement that appears to be reviewable.35

Review by the Court of Protection
Article 5(4) of the European Convention on Human Rights requires that anybody deprived of his liberty must be able to obtain speedy access to a court for it to review the lawfulness of their detention and order discharge if detention is not lawful. Paragraph 2 of Schedule 8 to the Mental Health Bill inserts a new s 21A into the MCA 2005, giving the Court of Protection jurisdiction for this purpose. Where a standard authorisation has been given, the Court of Protection may determine any question relating to:

(a) Whether the person meets any of the qualifying requirements;
(b) The period for which the standard authorisation is to be in force;
(c) The purpose for which it has been given;
(d) The conditions subject to which it has been given. The Court may make an order varying or terminating the authorisation or ordering the supervisory body to vary or terminate it.36

Where an urgent authorisation has been given, the Court may determine any question relating to:

(a) Whether the urgent authorisation should have been given;
(b) The period during which the urgent authorisation is to be in force;
(c) The purpose for which the urgent authorisation is given.

The court may make an order varying or terminating the urgent authorisation, or directing the managing authority of the relevant hospital or care home to vary or terminate the urgent authorisation.37
When making orders under s21A, the Court may make an order about a person’s liability for any act done in connection with the standard or urgent authorisation before its variation or termination, and this includes an order excluding a person from liability.38

Monitoring
Paragraph 153 of Schedule A1 confers a regulation making power which will enable a monitoring function for the Bournewood safeguards to be established and for a monitoring body or bodies to be designated as having the responsibility for discharging that function. The Government’s intention is to formally confer the monitoring function on the three existing Inspectorates (Healthcare Commission, Commission for Social Care Inspection, Mental Health Act Commission) pending the establishment of the new merged regulator, at which point the function would transfer to the merged body. The expectation is that the existing inspectorates will work in a co-ordinated manner to avoid duplication of activity.
The Government intends that the designated monitoring body or bodies for care homes and hospitals in England will come on stream by April 2008 and will be able to:

Monitor and report on the operation of the Bournewood safeguards;
Visit hospitals and care homes;
Visit and interview people in hospitals and care homes;
Require the production of, and inspect records.

Paragraph 155 of Schedule A1 confers a further regulation making power on the monitoring body or bodies to require supervisory bodies and managing authorities of hospitals or care homes to disclose information to the monitoring body or bodies (including data on ethnicity).
The Government has said that ‘the focus of the monitoring will be on the protocols and procedures in place for complying with duties placed on hospitals, care homes, primary care trusts and local authorities, and the effect of these protocols and procedures on individual cases. The monitoring function will not negate the role of the Court of Protection.’
The monitoring process will address:

Whether the provisions have been applied correctly and in line with guidance in the Code of Practice in cases where authorisation has been requested;
Whether guidance in the Code of Practice on identifying those at risk of deprivation of liberty, and on avoiding deprivation of liberty, is being complied with;
Whether conditions attached to authorisation and requirements to request review if circumstances change are complied with;
Whether appropriate steps are being taken in cases where authorisation has been refused.

Monitoring will not cover:

Treatment and care other than as it relates to the deprivation of liberty;
Revisiting individual assessments.

The monitoring will not constitute an alternative review or appeal process.

Philip Fennell is Professor of Law at Cardiff Law School. He has written widely on mental health law, and served as specialist legal adviser to the Joint Parliamentary Scrutiny Committee on the Mental Health Bill 2004 and to the Joint Committee on Human Rights on the Mental Health Bill 2006

References
1. Mental Capacity Act 2005, Schedule A1 paras 3 and 4.
2. Ibid., paras 167-70.
3. Ibid., para 171.
4. Ibid., para 172.
5. Ibid., para 24;
6. Ibid., para 25-26;
7. Ibid., para 27;
8. Mental Capacity Act 2005, s 39A;
9. Draft Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative and Assessment) Regulations 2007, r 19;
10. Mental Capacity Act 2005 Schedule A1 para 14;
11. Mental Capacity (Deprivation of Liberty: Eligibility and Selection of Assessors) Regulations 2007, r 4;
12. Draft Indicative Code of Practice, para 62;
13. Mental Capacity Act 2005 Schedule A1 para 33;
14. Ibid., para 15;
15. Draft Indicative Code, para 67;
16. Mental Capacity (Deprivation of Liberty: Eligibility and Selection of Assessors) Regulations 2007, r 5;
17. Mental Capacity Act 2005 Schedule A1 para 16;
18. Mental Capacity (Deprivation of Liberty: Eligibility and Selection of Assessors) Regulations 2007, r 6;
19. Mental Capacity Act 2005 Schedule A1 para 39;
20. Ibid., para 40;
21. Ibid., paras 42 and 51;
22. Ibid., paras 43 and 53;
23. Draft Mental Capacity (Deprivation of Liberty: Appointment of Relevant Person’s Representative and Assessment) Regulations 2007, r 4;
24. Ibid., r 20;
25. Mental Capacity Act 2005 Schedule A1 para 50;
26. Draft Indicative Code of Practice para 103;
27. Mental Capacity Act 2005 Schedule A1, paras 54 and 55;
28. Ibid., para 69;
29. Ibid., para 73;
30. Ibid., para 77;
31. Draft Indicative Code of Practice, para. 118;
32. [2007] EWHC 623 (Fam), para 23;
33. Mental Health Bill 2006, Schedule 3 para 3(5);
34. Mental Capacity Act 2005, Schedule A1, para 95;
35. Ibid., paras 103-104;
36. Mental Capacity Act 2005, s 21A(2)-(3);
37. Ibid., s 21A(4)-(5);
38. Ibid., s 21A(6)-(7).