Support for defending liberty

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.

You will recall that in March 2014, the UK’s Supreme Court in Cheshire West considered whether the living arrangements made for a mentally incapacitated person who was cared for by the state amounted to a deprivation of their liberty. The court found that if the person was under continuous supervision and control, and not free to leave, then they were deprived of their liberty. Accordingly, having passed this acid test, the patient’s deprivation had to be scrutinised by the local authority or the court, prior to authorisation.

This caused alarm though the NHS, and a ten-fold increase in DOLS (Deprivation Of Liberty Safeguards) applications from acute hospitals. This occurred because local authorities and acute Trusts realised that the acid test could be equally applicable to any incapacitated person who was being treated as an inpatient. In some clinical areas, up to 40% of our inpatients lack capacity. Quite how a judicial decision on ‘living arrangements’ can have been applied so readily to acute clinical care remains controversial, but in the meantime, our Trust Board agreed on the pragmatic solution set out in a DCL bulletin 2 years ago:

1. Any patient who has capacity to consent for their proposed procedure on admission is also asked to agree to any necessary temporary deprivation of their liberty which might flow from their treatment. Providing this agreement is given, and documented, no application for DOLS authorisation is necessary in this group.

2. In many patients whose incapacity has coincided with the illness that has caused them to come into hospital, their incapacity is clinically explicable by their physical illness. On recovery from their illness, they would be expected rapidly to recover their capacity. In this patient group, we are not making automatic applications.

3. Incapacitated patients who arrive at UHS accompanied by friends or relatives or associates should not have an automatic application for DOLS made, even if they pass the acid test threshold, providing their accompanying persons have no objection to the deprivation. But if any hint of disagreement or concern relating to deprivation of liberty emerges from either clinicians or relatives, an application for DOLS authorisation should be sought

All other unbefriended incapacitated patients MUST have an automatic authorisation if they pass the acid test in Cheshire.

As a consequence, in these intervening years, our monthly application rate for DOLS has varied between 15 and 35. We believe that patients whose liberty is under genuine threat have had applications made on their behalf, whilst the risks of a less considered approach has been avoided (See bulletin on Deprivation of liberty 2014).

A recent judgement has supported these arrangements. In the case of Maria Ferreira, a 45 year old lady with Down syndrome, who presented to an intensive care unit with pneumonia and pericarditis, the two High Court judges did not find that her presence in the intensive care, despite her lacking capacity and meeting the acid test, equated to a deprivation of liberty.

Finding that the consideration of living arrangements in Cheshire West were far removed from the context of the typical acute hospital, Gross LJ regarded the extension of the law in Cheshire West to intensive care and other hospital settings as “mechanistic, unwarranted and divorced from the mischief that Cheshire West was seeking to address”.

The judgment provides explicit support for our arrangements relating to prior consent for deprivation (group 1) and the contribution of accompanying persons to the decision (group 3). The patients in group 2 are covered by legislation.

We already know that the Law Commission is due to report to Parliament early in 2017 with recommendations for wide-ranging reform of both the Mental Capacity Act 2005; and specifically, the DOLS mechanism. Both of these instruments have attracted widespread criticism.

In the future, it seems possible that clinicians treating incapacitated patients will be permitted to authorise their more prolonged detention in hospital, within limits. Whether this will be supervised by practitioners akin to Approved Mental Health Professionals remains to be seen.

Robert Wheeler
Department of clinical law, February 2016