Deprivation of liberty safeguards (DOLS) at UHS
An update from a regular series written by Mr Robert Wheeler, director, department of clinical law, where he considers various aspects of clinical law that our nursing and medical staff rely on when caring for patients.
The DOLS regulations were enacted to ensure that incapacitated adults are not deprived of their liberty by NHS Trusts without:
- a process of authorisation under the control of the local authority and
- the safeguards flowing from that authorisation.
The underlying reason for these arrangements is to protect patients from abuses of their human rights. Although criticised from some quarters, the DOLS arrangements have been in place since 2007, and have been found to be workable by clinicians, patients and State. The Supreme Court judgement in Cheshire West ordered the use of a threshold (which if crossed, requires an automatic application for the authorisation of deprivation of incapacitated adults) which was both more prescriptive and lower than that formerly used by clinicians and institutions. This threshold is known as the acid test, and demands that any incapacitated patient must automatically be subject to an application for DOLS authorisation if they are both:
- under constant control and supervision of the hospital
- not free to leave.
This low threshold captures perhaps 30% of our inpatient population. Early calculations indicated a rise in healthcare applications from approximately 10,000 nationally in 2013/14 to circa 167,000 in the following year. Since the judgement emerged in February 2014, approximately 33,000 applications have been made. Sir James Munby, president of the family division of the High Court has made it plain that if all relevant patients have an application made on their behalf, the Court Service (HMCTS) will be utterly unable to deal with the volume of work that will ensue. This has now gone passed the merely predictive stage; our own local authority is reportedly taking many weeks to complete authorisations, so patients are leaving UHS long before the application for their deprivation (by now a distant past event) is issued.
A law commission review of the Mental Capacity Act 2005 has had its terms of reference altered to include a review of the DOLS arrangements; but this is not due to be translated into new law until 2017.
In the meantime, we're taking interim steps to reduce the number of automatic applications.
We're doing this for two main reasons. Firstly, we fear that amid the avalanche of automatic authorisations (which we believe to be largely unnecessary) for patients in whom there is a genuine risk of deprivation contrary to their human rights may have their cases ‘lost’. Paradoxically, the post-Cheshire rush will thus disadvantage the very patient for whom Cheshire should be providing a remedy.
Secondly, we believe that the endless flow of automatic applications based on the acid test will cause our staff to become disillusioned with a process that they see (largely correctly) as irrelevant and not contributing to the care of the patient in front of them. Again, the net result will be staff whose sensitivity to the possibility of genuine deprivation in any given patient will be blunted, and deserving patients may be missed, clearly contrary to their best interests. Alarmingly, it's been suggested nationally that clinicians might be tempted to provide patients with marginally sub-optimal treatment that does not avoid deprivation; rather than go through the process of authorisation that would facilitate both deprivation, and the best therapy.
The approach we're taking at UHS with respect to applications for DOLS authorisations
Firstly, taking note of the guidance as whole, we're ensuring that patients who have capacity to consent for their proposed procedure on admission are also asked to agree to any necessary temporary deprivation of their liberty which might flow from their treatment; in a similar way as they will be approached for consent to permit their primary treatment. Armed with their valid consent for deprivation, we are not making an automatic application, although should unforeseen events arise, or dissent emerges within or outside the clinical team, standard DOLS application will be sought.
Secondly, relying on section 6.3 of the DOLS Code of Practice, we're identifying patients whose incapacity is clinically explicable by their physical illness; on recovery from their illness, we expect them rapidly to recover their capacity. Although section 6.3 fails to define ‘rapidly’, we nevertheless feel that this is helpful and practical advice, so in this patient group, we're not making automatic applications, whilst observing the caveat at the end of the previous paragraph.
In another area of mental capacity law, if an incapacitated adult requires clinical intervention, the clinician is obliged to consult persons who accompany the patient. From this consultation the clinician may glean knowledge of the patient’s wishes and feelings expressed prior to their incapacity. From this knowledge, clinicians arrive at a conclusion as to whether the proposed treatment is in the patient’s best interests. In this way incapacitated adults, no longer able to provide valid consent, may be lawfully treated without consent but consistent with their best interest. The role of the accompanying persons is thus determinative in allowing best interest treatment to occur. In the absence of such accompanying persons, (the incapacitated patient thus ‘unbefriended’) we are obliged to engage an independent mental capacity advocate (IMCA) to seek information to allow this best interest process. Within the discipline of the law of consent, as outlined above, it can be seen that information provided by accompanying persons is entirely sufficient to base treatment grounded in the patient's best interest; and is consistent with the Mental Capacity Act 2005. It follows that the same mechanism that prevents abuse of consent also prevents the abuse of deprivation of liberty.
By analogy, we've agreed that incapacitated patients who arrive at UHS accompanied by friends or relatives or associates shouldn't have an automatic application for DOLS made on their behalf, even if they pass the acid test threshold, providing their accompanying persons agree to the deprivation. Plainly, the same caveat, (should unforeseen events arise, or dissent emerges within or outside the clinical team, standard DOLS application will be sought), applies. Equally, all other unbefriended incapacitated patients must have an automatic authorisation if they pass the acid test in Cheshire.
Our Trust Board accepted this approach on 30 October 2014; with an instruction for a review in six months.
Robert Wheeler
Department of clinical law