Primary care trusts need to be aware of new safeguards designed to protect patients being deprived of their liberty. Stephen Evans explains PCTs' duties
Primary care trusts have a central role to play in understanding and preparing for new safeguards relating to deprivation of liberty that are due to come into force in April 2009.
The new safeguards will apply when people who lack mental capacity need to be cared for in hospital or a care home in a way that amounts to a deprivation of liberty.
Under the new safeguards, PCTs will become the relevant supervisory body for patients in hospital. Where a hospital applies for authorisation for deprivation of liberty, the PCT commissioning the care is responsible for processing the application.
There are six requirements that must be met before a patient may be deprived of their liberty. These are:
age: the patient must be 18 or over;
mental health: he or she must have a mental disorder; those most likely to be involved are therefore those with learning disabilities or dementia;
mental capacity: the person must lack the capacity to decide whether or not he or she should be cared for in the hospital;
best interests: it must be in the patient's best interests to be deprived of his or her liberty and the deprivation must be necessary to prevent harm, as well as being proportionate to the likelihood and seriousness of harm;
eligibility: the patient must not be subject to certain compulsory provisions of the Mental Health Act 1983 because in such cases the act gives the legal authority for the deprivation of liberty;
no refusals: it must not be a valid advance decision, or valid refusal from a donee of a lasting power of attorney or court-appointed deputy.
A hospital must make an application if the patient:
is or is about to be accommodated in the hospital;
is or is likely in the next 28 days to be subject to the deprivation of their liberty while in hospital;
is or is likely in the next 28 days to satisfy the qualifying requirements.
The PCT must then arrange for the patient to be assessed to see whether each of the qualifying requirements is met. The mental health and best interest assessments must be carried out by different people, meaning a patient will always have at least two assessors. The mental health assessor must be a doctor who is either approved under section 12 of the Mental Health Act or has special expertise in mental disorder. The best interest assessment must be carried out by someone with the correct qualifications who is not already involved in the case or employed by the hospital.
Time to act
If all assessments support the application, the PCT must approve the deprivation of liberty. PCTs will not be called on to exercise discretion. In most cases, assessments must be completed within 21 days of the request being received. However, in urgent cases hospitals can self-authorise for up to seven days while making an application.
It is hard to predict how often this process will be needed in practice. The biggest issue is what actually constitutes "deprivation of liberty", which will need further clarification once the safeguards have come into force.
For PCTs, the new requirements could be challenging: if there are many applications, it will be difficult to arrange for all the assessments to take place within the timescales. If, on the other hand, there are very few applications, there is a real possibility that no-one will know what to do when an application does come up.
PCTs must prepare themselves in terms of education, internal processes, organising suitable and sufficient assessors, liaison with other organisations and monitoring.
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