Deprivation of Liberty – Are we spending public monies wisely?

Deprivation of Liberty – Are we spending public monies wisely?    Trish O’Hara April 2015

I for one, am fully aware of the necessity of adhering to Article 5 of the ECHR and delighted that Lady Hale pointed out that however golden the cage, it is still a cage.
But, the new threshold following the Cheshire West ruling :-
Continuous supervision and
Lacking capacity to consent to remaining
And how it falls within the Human Rights legislation:
The objective element: i.e. that the person is confined to a particular restricted place for a non-negligible period of time;

The subjective element, i.e. that the person does not consent (or cannot, because they do not have the capacity to do so) to that confinement;

State imputability: i.e. that the deprivation of liberty can be said to be one for which the State is responsible.

seems to have created an unprecedented amount of paperwork for those who, perhaps, need to be focused on emergency situations in hospital.

I am fully behind the new ruling for those living in residential care homes, nursing homes and hospices but am not sure this is money well spent on those in Intensive Care Units and in transportation from one hospital to another. It seems to me that those completing the assessments – such as Section 12 doctors and Best Interest Assessors are in the lucrative situation of charging £250 or so to assess people who are sick in hospital for a week or so. The nursing staff having to make applications, to spend time with the assessors – all of which is time away from using their expertise in keeping the person alive. I am aware that on many occasions, assessors have gone out to complete an assessment and the person has either gained capacity or indeed died or been discharged. I expect the assessors are still paid for their time and yet more public money is swallowed by this over-zealous interpretation of the ruling.

Of course, when a patient is resisting treatment and needing restraint, there needs to be protocols in place to ensure it is to maintain the life of the person, but can this not be regulated within ordinary hospital procedures?

Public monies are a dwindling resource as services face further cuts. Surely, there needs to be a common sense approach to deprivation and when it is necessary to authorise it.

I understand that new guidance is due to be published in 2017 which I hope recognises the paper driven exercise that often seems both pointless and expensive.

Yes, all patients should be informed and asked to sign consent for a time when they may not have capacity, following an operation and yes the MCA is a wonderful piece of law that protects the rights of all of us. But, the idea that a person who has suffered perhaps a head injury in a road accident  and needs to take an ambulance for numerous hours to a specialist hospital needs a DOLs seems to me to be wasting peoples time and money.

I am not sure there is enough emphasis yet on getting this right where it needs more attention, time and money spent.

Are there enough home care providers who are involved in supporting a deprivation in a persons own home, not registered, trained in understanding liberty?

Do families understand that deprivation of liberty may be seen as false imprisonment?

Do enough care homes understand the right for people with capacity to make unwise decisions?

Do enough supported living services realise that they may need to apply to the court of protection if they are depriving a person of their liberty?

Surely, these are the areas of real concern. And where assessment and monitoring is most needed.

I await 2017 publication with much anticipation.


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Assessors of capacity have a lot of responsibility to get it right

With most assessments carried out by social workers or section 12 doctors – especially around the issue of deprivation of liberty – We must consider their knowledge of the persons communication. Seems to me, that a professional arriving and conducting an assessment about capacity with someone they are unlikely to have met before poses many problems. The four stage assessment is simplistic and rather wonderful but throws out the possibility of interpretation.
Does the person understand the information around the decision? A good assessor will need to ask a variety of questions around the decision to fully assess if the person understands. Do all assessors prepare the types of questions? Do they ask the questions in a variety of ways?
Can the person retain the information long enough to make the decision? Is the assessor looking for a consistent answer here? Is the assessor leaving the person for 30 minutes or so and returning. I suspect, if the person does not remember the conversation, then the assessor would record the person does not have capacity. But, I think it is necessary to reopen the discussion and find out if the person has a consistent answer regarding the decision.
Can the person broadly weigh up the benefits and risks? This one is so tricky – As a smoker, I am hard pushed to explain the benefits. I am well aware of the risks. It is important that the person is able to say ‘because I want to – or because I like it’. There are so many risks we all take that we do simply because we want to. It seems to me that we are asking people to jump through hoops that we would struggle to jump through ourselves.
Can the person communicate their decision in any way? So how much effort is gone to here? A person with dementia for instance, may be more lucid in the morning after a good night sleep and breakfast but by the afternoon, their capacity may fluctuate. Does the assessor make sure they assess at a time that is best for the person? Is the assessor listening to staff to ensure they know the answer to this? And once they arrive to assess, are there communication tools for those who may use non verbal communication? Does the assessor spend some time learning how the person communicates? The provider has a role to play here – It is pointless introducing a communication tool at the point of big decision and expecting the person to know how to use it. There needs to be access to a variety of communication tools for everyone in services who has communication difficulties. Speaking louder to them is really not enough. Using tools to make small day to day decisions over a long period of time – recorded as showing a consistent decision maker means that at the time of big decision, the person has a fighting chance of using the tool. The staff making sure the assessor sees the records of how the person decides and is expected to use said tool to best effect.
If we want assessors to be this thorough, we must ensure they are challenged. A visit from an assessor that lasts less than 30 minutes and makes a judgement about a persons capacity must be questioned. There needs to be an expectation that the assessor spends time with the person, their family and the support staff. The staff who may spend more time with the person than anyone must be listened to.
In summary, the assessors need to come at the ‘right’ time for the person, spend time with them, speak to family, advocates and importantly the front line staff. Look at records and learn how the person communicates to ensure the person has a fighting chance of staying in control of their decision making. The providers needs to build communication passports to ensure the person has the tools to make the decision, challenge assessors who do not fulfil this criteria.
To be honest, I am concerned that there is money to be made in independent assessment and seems to mean that assessors are packing out their day with assessments, spending so little time with the person who may be more complicated to assess. I am sure this is not the description of many of the Capacity and BI assessors out there, but I fear does describe how many assessments are conducted. One of the other concerns, particularly in hospitals, is that the front line staff have no time to spend with the assessor who are left to conduct the assessment to too little information or support.
If we are to get capacity assessments to reach the standard expected and hoped for, then everybody needs to work together to keep the person as in control of their decision making as possible.
Trish O’Hara November 2014

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