Post-legislative scrutiny of the Mental Health Act 2007 - Health Committee Contents

6  Interaction with the Mental Capacity Act 2005

Deprivation of liberty safeguards

95.  The Deprivation of liberty safeguards (DOLS) were included in the 2007 Act as "an addition to the 2005 Mental Capacity Act".[121] It was determined that existing practice in this area did not comply with the European Convention on Human Rights in respect of detention for their own safety of people who lack capacity. The Department of Health describes the purpose of DOLS as to:

provide a statutory framework for authorising the deprivation of liberty for people who lack the capacity to consent to treatment or care, where in their own best interests, that care can only be provided in circumstances that amount to a deprivation of liberty.[122]

The DOLS came in to effect in April 2009 and apply in hospitals and care homes (but not supported living) in relation to adults aged over 18 years of age:

  • who suffer from a mental disorder — such as dementia or a learning disability
  • who lack the capacity to give informed consent to the arrangements made for their care and / or treatment and
  • who are considered to be at risk of harm if they are not deprived of liberty (as per Article 5 of the ECHR)
  • where it is in their best interests, according to the Mental Capacity Act 2005, to be deprived of their liberty in a hospital or care home.[123]

96.  DOLS apply to people detained under the Mental Capacity Act 2005 (MCA). Patients detained under section via the Mental Health Act are in most cases protected by the safeguards of the Mental Health Act. Specific safeguards established within the DOLS include provisions to:

  • provide the person with a representative
  • allow a right of challenge to the Court of Protection against the unlawful deprivation of liberty
  • provide a right for deprivation of liberty to be reviewed and monitored regularly


97.  Implementation of DOLS has proved problematic, with wide variation in their use. A key finding of the MHA was the disparity in application and authorisation rates between supervisory bodies and much a lower overall use of DOLS than predicted. The MHA attributed this to differences in training and guidance issued by different supervisory bodies who determine their own policies and interpretation. The MHA's written memorandum noted that:

Some supervisory bodies with very low activity rates have claimed that this reflects their success in persuading care providers in their areas to adopt less restrictive care practices. However, this flies in the face of the evidence from the regulators that their inspectors are frequently coming across instances of potential deprivation of liberty and of staff who are ignorant of the legal requirements in these circumstances.[124]

98.  The Department of Health acknowledged the variation in implementation of DOLS but said that an overall growth in the use of the safeguards meant that "the safeguards are becoming better understood and there is increasing awareness."[125] In oral evidence however, Bruce Calderwood was circumspect. He said that the variation in use of DOLS had been "extreme"[126] but as yet there was no understanding why such extreme variation had occurred.[127]

Clinical responsibility

99.  The process for applying to protect a patient with DOLS includes an independent assessment of that patient. The care home or hospital, commonly known as the managing authority, must apply to a supervisory authority (local authorities and PCTs until April 2013 and now solely local authorities) for the independent assessment to be undertaken. The MHA reported in 2012 that 75% of DOLS cases were already dealt with by local authorities: this was likely to be because the majority of patients whose deprivation of liberty was authorised were dementia sufferers in care homes.[128]

100.  Assessments must be undertaken by a best interest assessor and a mental health assessor. The Alzheimer's Society guidance explains:

The best interests assessment must be carried out by someone who is not involved in that person's care or in making decisions about it. [...] The best interests assessor must be an approved mental health professional, or a qualified social worker, nurse, occupational therapist or chartered psychologist with the appropriate training and experience.

The mental health assessor must be a doctor who is able to assess whether a person is suffering from a mental disorder.[129]

101.  Bruce Calderwood told the Committee that it was the assessors who were best placed to understand how the safeguards should be implemented. He said

the real experts on this are the people doing the assessment. There is less evidence of people feeling confident in about identifying when to make applications to the assessors.[130]

Urgent need for action

102.  One of the complaints of the MHA regarding DOLS concerns a lack of understanding of the original legislation. They said that care providers did not:

know when they were exceeding the powers it gave them and would therefore need to apply for a DOLS authorisation, or how the MCA could be used appropriately, sometimes negating a need for DOLS.[131]

In addition the MHA have found a lack of understanding amongst providers and care staff regarding the "meaning of deprivation of liberty in practice"[132] and a resistance to use DOLS because of the complex processes involved and "widespread anxiety and defensiveness about care standards and practice".[133] Also recorded are "a high level of legal and procedural errors caused by the complexity of the scheme coupled with inadequate staff training."[134]

103.  The CQC also reports confusion amongst staff as to the legal status of patients, which results in uncertainty regarding deprivation of liberty.[135]

104.  The absence of a standard definition of deprivation of liberty has hampered the ability of staff to properly interpret the guidance in relation to DOLS, according to the MHA.[136] In oral evidence Dr Chalmers explained the problems of trying to encapsulate the concept of deprivation of liberty:

Unlike under the Mental Health Act, where detention is seen as being locked up—a locked door in a hospital—the concept of the deprivation of liberty safeguards, the case law and the description of what might constitute a deprivation of liberty are much more holistic. I think it has a value because of that, as it pulls in things that relate not just to article 5, the right to liberty: a lot of the cases have arisen because people are not getting access to their families. There is something quite rich in the concept, but, given that, there are difficulties of definition. I would think that it needs more debate.[137]

105.  Dr Chalmers suggested that stronger guidance and support from the Department of Health was necessary to help clinicians interpret the law. She indicated that the Department of Health had reduced support for clinicians and practitioners in this area. Dr Chalmers said:

It was helpful when there was a sort of DOLS group and the Department of Health published a sort of resume of the case law, to give some kind of interpretation—a kind of practical "What does the law mean?" [...] Experts need to get together and say, "This is what we think. This is the consensus view on what the law at this point means for practitioners"—a very easy-to-read kind of thing. [...]Rather than giving an absolute definition, we need more finessing, understanding and interpretation by the right people of what the case law means for me as a practitioner on the ground.[138]

Dr Chalmers accepted that this was something clinicians could lead the way on in order to drive the process but argued that it required the weight of a more authoritative body to reassure practitioners.[139]

106.  The Committee found the evidence it received about the effective application of deprivation of liberty safeguards (DOLS) for people suffering from mental incapacity profoundly depressing and complacent. The Department itself described the variation as "extreme". People who suffer from lack of mental capacity are among the most vulnerable members of society and they are entitled to expect that their rights are properly and effectively protected. The fact is that despite fine words in legislation they are currently widely exposed to abuse because the controls which are supposed to protect them are woefully inadequate.

107.  Against this background, the Committee recommends that the Department should initiate an urgent review of the implementation of DOLS for people suffering from mental incapacity and calls for this review to be presented to Parliament, within twelve months, together with an action plan to deliver early improvement.

121   The Mental Health Alliance, May 2012, p 9 Back

122   Department of Health, July 2012, p 20 Back

123   The Mental Health Alliance, May 2012, p 11  Back

124   Ibid, p 11 Back

125   Department of Health, July 2012, p 23 Back

126   Q 179 Back

127   Q 186 Back

128   Mental Health Alliance, May 2012, p 9 Back

129 Back

130   Q 182 Back

131   Mental Health Alliance, May 2012, p 10 Back

132   Ibid Back

133   Ibid Back

134   Ibid Back

135   CQC, January 2013, p 35 Back

136   Mental Health Alliance, May 2012, p 13 Back

137   Q 52 Back

138   Q 52 Back

139   Q 54 Back

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Prepared 14 August 2013