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BOURNEWOOD – What does it mean for Local Authorities?

Key contact:Gerard HanrattyPartner0207 067 4541gerard.hanratty@weightmans.com

6 November 2007

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BOURNEWOOD - FACTS

▪ 30 year old autistic man with learning difficulties.▪ Discharged on trial basis to carers for 3 years.▪ Agitated and harming himself, admitted

informally.▪ C of A found unlawful detention, Lords

overturned.▪ ECtHR found Article 5 violation, reviews

conducted in Habeus Corpus and Judicial Review proceeding not adequate or effective.

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CLOSING THE GAP

▪ Amendment to Mental Capacity Act 2005 by Mental Health Act 2007.

▪ Applies to patients over 18 years, suffering from a mental disorder, who lack capacity to decide whether or not to reside in a hospital or care home.

▪ Any deprivation of liberty must be in best interests, necessary to prevent patient harm and be proportionate.

▪ Government believes will mainly relate to those with significant learning disabilities, elderly people with dementia and a minority who have suffered physical injury.

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What is deprivation of liberty?

▪ HL v. UK [2004]“… to determine whether there has been a deprivation of

liberty, the starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors arising in a particular case such as the type, duration, effects and manner of implementation of the measures in question. The distinction between a deprivation of, and restriction upon, liberty is merely one of degree or intensity and not one of nature or substance.”

▪ Key factor in HL was the ‘complete and effective control over his care and treatment’ which professionals exercised.

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WHAT ARE PROPOSALS?

▪ Any hospital or care home who identifies a person to be within this group must apply to the “supervisory body” for authorisation of deprivation of liberty.

▪ Urgent 7 day authorisations in exceptional circumstances, normal expectation that apply within 28 days of commencement of deprivation.

▪ Supervisory bodies – care homes/local authority: hospital/primary care trusts; National Assembly for Wales.

▪ Court of Protection can also authorise deprivation of liberty.

▪ Supervisory body must commission assessments when request for authorisation received and complete within 21 days.

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ASSESSMENTS

▪ Age – reached 18▪ Mental health – suffering from mental disorder within meaning

of MHA (changing)▪ Mental capacity – lacks capacity to decide on accommodation. ▪ Best interests – s.4 Mental Capacity Act 2005 checklist.▪ Eligibility – status, or potential status, under MHA.▪ No refusals - authorisation must not conflict with valid decision

by a donee or deputy with Lasting Power of Attorney. IMCA appointed for anyone un-befriended.

▪ If any assessment concludes person does not meet criteria for an authorisation, supervisory body must reject request.

▪ Must be minimum of two appropriately trained assessors and those for ‘Best Interests’ and ‘Mental Health’ must be different.

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AUTHORISATIONS

▪ Duration on case by case basis and period should be recommended by best interests assessor, but maximum period is 12 months.

▪ Best interests assessor should recommend best person to represent person’s interests. If person has capacity (to some extent) they may choose own representative.

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AUTHORISATIONS

▪ Must be in writing, for no longer than period recommended by best interests assessor, stating purpose on which liberty deprived, any conditions recommended by best interests assessor and reasons each assessment criteria met.

▪ Goes to care home/hospital, person concerned, IMCA and all interested persons consulted by best interests assessor.

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HOSPITAL AND CARE HOME MANAGERS

Duty to:-

▪ Undertake all practical steps to explain authorisation to person concerned and representative, including how to appeal or review.

▪ Ensure any conditions attached to authorisation are met.

▪ Monitor and, when necessary, request review.

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REVIEW OF AUTHORISATIONS

▪ Hospital or care home requests when individual’s circumstances have changed.

▪ Person or representative requests because circumstances have changed.

▪ Supervisory body needs to assess any of the criteria affected by change.

▪ After review notify all relevant bodies/people of decision in writing.

▪ Appeals are to Court of Protection.

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MHA 1983 AND 2007

▪ If P is detainable under a section of MHA then do not use MCA.

▪ MHA 2007 introduces Bournewood amendment to MCA.

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CONCERNS

▪ Potential length of authorisation without a review.▪ Lack of safeguards – suggestion there should be

much closer parity with MHA safeguards.▪ Set up cost and training. ▪ Number of people it could potentially affect. ▪ HRA and private care homes.

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What to do?

▪ Consider consultation and give feedback.▪ Set up team now to consider implementation of

new statutory obligations. ▪ Partner with local PCT. ▪ Establish clear policy for obtaining authorisations

and publish to all relevant bodies. ▪ Hold series of workshops with care home

providers. ▪ Be proactive!

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CONSULTATION

▪ Launched 10 September 2007 and closes 2 December 2007.

▪ www.dh.go.uk/en/consultations/liveconsultations/dh-078052