Will some people now be deprived of their liberty where they weren’t before, and what action is required?

All of us are currently experiencing increased restrictions on our liberty. For those without capacity to make the decision to comply with the lockdown requirements, some service users may now be deprived of their liberty (in the legal sense) where they were not previously. 

However, the DHSC thinks this will apply to a limited number of people.  It is worth carefully considering the acid test (which asks whether the person is a) free to leave and b) under continuous supervision and control).  Freedom to leave has since been qualified to mean that P cannot be free to leave a placement permanently.  So it may be that P is not free to leave her care home to go to the shops, but that she can’t be said to be under continuous supervision and control.  In that case, P would not be deprived of her liberty.  In any event, a note of this should be made in P’s records to show that this question has been carefully considered.

If P is deprived of their liberty, then the appropriate authorisation should be sought.   

The DHSC guidance (and the Mental Capacity Act) makes it clear that decision-makers should always seek the least restrictive options and should avoid depriving someone of their liberty unless it is required and proportionate to prevent P serious harm. 

Following the Ferreira judgement, for a person who lacks capacity and is receiving life-saving treatment (in a hospital or in the community) this will not amount to a deprivation of liberty as long as the treatment is the same as would normally be given to any patient without a mental disorder.  The DoLS process will therefore not apply to the vast majority of patients who need life-saving treatment who lack the mental capacity to consent to that treatment, including treatment to prevent the deterioration of a person with COVID-19.

What should we do about increased restrictions for those already deprived of their liberty? Does each Standard Authorisation / Court authorisation need to be amended to reflect the additional restrictions?

A review of P’s authorisation needs to take place.  In many cases it may be that the current authorisation will cover the new arrangements, and a best interests decision can be made regarding any new restrictions rather than a new Standard Authorisation being required. 

Best interests decisions and DoLS cannot be justified purely to prevent harm to others, it needs to be in the best interests of the individual for the restrictions to be in place.  It might well be that good arguments can be made that restrictions to prevent the spread of Covid-19 are also in the best interests of an individual service user (for example for their own safety from the disease, or to maintain a group of staff members or other service users who P knows and benefits from the care / company of).

However the current authorisation may not cover the increased restriction, for example, if it requires P to visit family or friends at a certain frequency. 

Again, decision-makers need to make sure any measures put in place are necessary and proportionate to preventing harm to P. 

If the additional measures are not covered by the authorisation in place, then an alternative authorisation needs to be sought. 

Have any changes been made to the process for applying to authorise a deprivation of liberty?

DoLS

An urgent authorisation comes into effect instantly once the application is completed and lasts for a maximum of seven days (which can if necessary be extended for another seven days).  During the pandemic only the shortened form at Annex B is required to grant an urgent authorisation and request an extension to it from the Supervisory Body.  This needs to be completed and submitted as soon as practicably possible after the deprivation of liberty has started and been identified.  No changes have been made to the process for applying for a standard authorisation.

Any authorisation in force is still applicable if P moves within the same setting. 

It is worth highlighting the following from the DHSC guidance:

“The Department recognises the additional pressure the pandemic will put in the DoLS system. Fundamentally, it is the Department’s view that as long as providers can demonstrate that they are providing good quality care and/ treatment for individuals, and they are following the principles of the MCA and Code of Practice, then they have done everything that can be reasonably expected in the circumstances to protect the person’s human rights.”

Court authorisations / COPDOL11

The Court of Protection is now accepting COPDOL11 applications by email (with electronic signatures).  The documents must each be a separate document and clearly identifiable by their name.  All applications must include medical evidence (and capacity assessments may be done by video conferencing if this is appropriate – please see Mr Justice Hayden’s guidance).  

The Court has warned that there are only 4 staff processing the applications so it is likely to take some time for them to be authorised.  Cases will be considered in order of receipt unless the patient is awaiting discharge from hospital (where it would be referred to the resident urgent business judge) or has a planned imminent move date (where it would be referred to the next available DoLS judge).

What will the approach of the Court of Protection be to restrictions on contact imposed by an individual care home?

The case of BP was heard on 25 March.  BP was an 83 year old man with Alzheimer’s who lived at a care home following discharge from hospital.  BP objected to the placement and BP’s daughter had visited him six times a week but after the DHSC initial guidelines about social distancing (which preceded the full “lockdown”), the placement had stopped all visits to the home from family members.  BP’s daughter, who was acting as his litigation friend, brought an emergency application seeking his discharge from the care home and a declaration that it was in his best interests to return to her home with an appropriate package of support. 

There were a number of interesting aspects to this judgment:

• BP’s fundamental human rights (under domestic and international law) were noted, as were the qualifications that were permissible as to the extent of human rights around liberty in emergency situations.  The Judge stated that derogation from the right to liberty was not only justified but essential. 
• BP’s daughter’s sole objection to BP remaining at the care home was the policy of no visits and the fact she would not have contact with him.  She was not seeking to remove him because she was concerned about potential spread of the virus within the care home. 
• The Judge noted, without criticism, that the DHSC guidance on lockdown in place on 20 March, when the care home stopped all visits, did not go as far as the measures put in place by the care home itself. 
• The significant issue here was the problem with communicating remotely.  BP was deaf and communicated by a communication board, so was unable to use the phone and had not used video options. The solution found was to try Skype with use of the communication board and simultaneous instant messaging.  Family members could also organise visits to the care home to wave at BP through his bedroom window (which was on the ground floor).  The judge recognised that even in times of extraordinary emergency all that can be done to minimise the effect of restrictions on fundamental liberties must be done, and in this case this included detailed and careful consideration of how contact and communication between BP and his daughter could be maintained through this period.
• Guidance has been given by the Court of Protection that capacity assessments may be conducted via Skype or a similar service, but the Judge in this case stated that they would “require vigilant scrutiny”.
• Although it was not stated in the judgment, reading between the lines the application of BP’s daughter was dismissed.

This matter was brought before Mr Justice Hayden again on 17 April:

• Since the first hearing, BP’s daughter had been visiting BP regularly, sitting outside the French windows.  The care home had, thankfully, remained free of Covid-19.  However BP struggled to cope with or understand the social distancing policy, and believed he was being punished in some way, which had resulted in his mood deteriorating and a prescription for antidepressants. 
• At the point of the hearing, all parties had agreed BP should return home and a package of care had been provisionally identified.  An assessment of BP’s needs in the home were needed and some adjustments to his accommodation.
• The capacity assessor was not prepared to complete it remotely and the care home didn’t agree to him visiting in person.  The Judge made no criticism of either of those decisions, but said if BP were staying at the home another assessor would have been needed, and that video conferencing, carers BP is comfortable with and family members should be utilised where possible. 

This case shows that, while the guidelines on social distancing and visiting restrictions in care homes are necessary, the service user’s human rights still need to be recognised. The care home residents’ best interests should therefore be assessed individually, and both care providers and family members need to come up with creative ways to meet each resident’s needs.

What approach should community health and social care providers, commissioners and care co-ordinators be adopting?

• Each provider organisation needs to carefully, and on an ongoing basis, consider the risks and benefits to various different courses of action required to safeguard service users, staff and their service and come to its own decision about the proportionate restrictions required.  
• Each service user needs to be considered as an individual, rather than making decisions about groups of people as a starting point. 
• The provider should discuss these measures, where appropriate, with service users, family members and where applicable appropriate care co-ordinators and commissioners.  Their final decision on the measures required should be communicated to these individuals / organisations as well.  
• These measures need to be reviewed on a regular basis, and adjusted where necessary or appropriate.
• It is vital that every effort is made to ensure that lines of communication are maintained as effectively as possible.  For service users whose care is commissioned by the NHS, it may be that some CCG staff members are reassigned and so there are fewer members of staff available to manage cases of patients in the community. Organisations should also ensure they remain in close contact with the appropriate supervisory bodies. These organisations need to communicate the issues they are facing to each other so that they can work together as effectively as possible over the coming weeks and months.
• Review the guidance being provided and updated and ensure this is referred to in decision making. 
• Discussions need to be taking place around additional measures which could be put in place to maintain service users’ wellbeing:
  • Service users still retain their fundamental human rights but as ever there needs to be a balancing act.  Certain measures, which may curb individuals’ rights, are required during a national emergency such as this but they still need to be necessary and proportionate. 
  • Consideration should be given to the way that service users can be kept active and ways for them to exercise within the restrictions put in place.  The guidance was updated to reflect that those with learning disabilities and autism may require exercise in an open space two or three times a day. The guidance suggests this should be provided in line with a care plan agreed with a medical professional, travel outside of the home should be limited and as close to your local area as possible and the 2 meter social distancing measures should be maintained;
  • Consideration should be given to how to maintain service users’ contact with family and friends.  Contact can be maintained in many cases by telephone, social media and video calling where appropriate.  It may be possible for family members to visit service users but stay on the other side of a window.  Of course, all options need to be practical and risk assessed.  The impact of special measures for some service users on the general population of the placement may also need to be considered.
  • There may be other particular considerations for service users with conditions like autism where routine is a vitally important part of their life.  The speed at which the new restrictions have been put into place will have no doubt been very difficult to manage, and all efforts need to be made to introduce an adjusted routine at an appropriate pace, with support from others including Occupational Therapists and perhaps even psychologists where appropriate.
  • Mental health also needs to be factored in.  The current situation is undoubtedly causing anxiety and depression in many, and increased mental health reviews may be required for patients already being treated by mental health teams, as well as potentially those who have not previously accessed those services.  Consideration needs to be given as to how such input can be facilitated at this time rather than ignoring problems until they become more acute.
• Decision-makers should ensure that the discussions and considerations taking place are well documented, either in individual’s patient or care records or elsewhere if it affects a number of people within a certain placement.  It may be that this information will be required at a later date and contemporaneous notes will be key to identifying the considerations which took place at the time.

Conclusion

All service users’ circumstances need to be reviewed. Many of those already with authorisations for their deprivation of liberty will not need a new authorisation, and a best interests decision will suffice. 

Where a new application is needed, during the pandemic only the shortened form at Annex B is needed for urgent DOLS authorisation.  COPDOL11 applications can now be sent to the Court of Protection by email.

Providers and care co-ordinators will need to be thinking of creative ways to meet service users’ needs holistically.

Providers need to keep up to date with the guidance published and assess the risks and benefits to the measures they are taking on an ongoing basis. 

How Capsticks can help

Our national healthcare team is one of the largest in the country. We support care homes and other health and social care providers on a variety of legal topics, including governance and CQC ratings, employment law, property assets, as well as corporate and commercial matters. We are dedicated to helping commissioners and social care clients through these times, so if there is anything raised in this note that you would like to discuss or hear more about, please contact Fiona Easton-Lawrence, Sarah Skuse, Siwan Griffiths, or any of your contacts at Capsticks, to find out how we can help.