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
IMPLEMENTATION OF THE SAFEGUARDS
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
http://www.alzheimers.org.uk/site/scripts/documents_info.php?documentID=1327 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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