Examples from practice to show health and social care practitioners how individuals and organisations are working with different elements of the Deprivation of Liberty Safeguards (DoLS) and the Mental Capacity Act (MCA).
DoLS example from practice
Ben has learning disabilities and Prader-Willi syndrome. There are concerns about his health because his weight has been increasing steadily and now stands at 120kg.
Staff in his residential home have tried to support Ben to limit what he eats and to make healthy choices but with little effect.
Ben has been assessed as lacking capacity to make decisions about the amount and type of food he eats (this is common among people with Prader-Willi syndrome). It has been proposed that it is in Ben’s best interests to stop him going into the kitchen, and always supervising him when out, to prevent him spending all his money on, or stealing, food. An application is made by the home manager for standard authorisation because they believe that the restrictions would deprive Ben of his liberty.
Brian has been living in a nursing home for the past three years. Recently he has become very agitated and distressed which is thought to be linked to his dementia. He tells people he wants to go home not remembering that he had to give his flat up when he moved into the home. He also spends a lot of time trying to open the front door which has a key pad lock on. An incident has occurred where he climbed out of his ground floor bedroom window and was only found a couple of hours later on a main road. The nursing home asks the local authority for a standard authorisation. They want to continue to use the key code so that Brian does not go out unaccompanied, and to put safety locks on some of the windows. Because of the seriousness of the recent incident, the home manager completes the form for the urgent authorisation and arranges the window locks to be fitted the same day.
Claire has an acquired brain injury. Her GP has referred her to the local hospital for a minor operation on her foot. The doctor assessed Claire as lacking capacity to make the treatment decision herself and so after consulting Claire’s mother is proposing that it is in her best interests to have the surgery. From past experience it is known that Claire will need to be sedated throughout her stay in hospital.
This is to stop her removing the dressing and picking at the wound. On the advice of the GP, the hospital makes an application for a standard authorisation for the use of sedation which is granted before she is admitted.
The local authority is following safeguarding proceedings for Mavis, a woman with dementia who is currently living at home with her husband. They are concerned her needs are not being met because her husband is refusing the support that is being offered. It is believed that he has untreated mental health needs. Mavis was assessed as lacking capacity to decide on her residence, though clearly communicates a wish to remain in her own home.
It has been proposed that a placement in a care home would be in Mavis’s best interests. It is also believed that in the care home she will need a high level of restrictions to give her appropriate care and treatment.
Because the move is against Mavis’s wishes and those of her husband, the local authority makes a fast-track application to the Court of Protection to make a decision in her best interests. If the court authorises a move to the care home, an application will be made by the home for a standard authorisation under the DoLS.
Mrs F (88) had a long history of dementia. She lived alone and very independently in a spotless bungalow, maintaining strict routines, but was neglectful of herself (often forgetting to eat and drink properly). One day, Mrs F left an electric heater on, covered by clothing, then tried to put the resulting flames out with water and by cutting the cable to the plug without turning the electricity off. The fire was serious, and she was admitted to hospital. She was very confused, and left the hospital twice, in her nightclothes, trying to go home. On both occasions the police found her in a distressed state, and returned her to the hospital.
The hospital, as the managing authority, gave itself an urgent authorisation in order to make it legal to deprive Mrs F of her liberty, in her best interests. At the same time, the hospital applied for a standard authorisation under DoLS from the supervisory body.
The best interests assessor agreed that Mrs F was being deprived of her liberty, and that this was in her best interests. He suggested a short period of standard authorisation, with conditions around care planning, and a best interests meeting to ensure that the least restrictive option for Mrs F’s care was identified. This was authorised by the local authority authorising signatory. Due to her lack of family or close friends, an independent mental capacity advocate (IMCA) was part of the assessment process.
When she had recovered from the effects of the fire, Mrs F was admitted to short-term residential care, while her house was being repaired. The care home, the new managing authority, applied in advance of her admission for a standard authorisation, which was approved (authorisations are place-specific, so the hospital authorisation did not ‘travel’ with Mrs F).
Mrs F’s social worker and the best interests assessor both felt she still did not have the mental capacity to make her own decisions about where she should live, but they acknowledged her strong desire to go home.
The repair of her home following the fire took several weeks, during which time a series of best interests meetings identified a plan for her return. Mrs F agreed that it would help her to have a live-in carer, and visited home several times with her social worker and IMCA to prepare for her return home. She returned and all went well for a few days, but then there was an aggressive incident towards her carer. Mrs F asked to go back to ‘the lovely care home to my friends’. She returned to the care home where she remains, now settled and calling it her home.
Mr B, an 89-year-old widower living alone in a bungalow, was admitted to an acute hospital for a planned knee replacement operation. Following surgery he was transferred to a rehabilitation ward. He had a range of health problems, from chronic kidney disease to osteoarthritis, with some evidence of memory problems and confusion
Mr B was agitated and confused after his operation, trying to get out of bed and walk, when he was unable to. Subsequently he continued to demand to leave.
Since he was making repeated requests to leave and staff were preventing this, an urgent authorisation was issued followed by a standard authorisation. This was granted for three weeks, to allow time for a best interests decision and care plan to be put in place, ready for Mr B to leave hospital.
However, this did not happen within the three weeks and a further standard authorisation was requested.
Hospital medical and social work staff then told the best interests assessor that Mr B would be ‘unsafe’ to return home due to his cognitive impairment, and that a likely placement would be an elderly mentally infirm residential setting. Although Mr B had no previous contact with community mental health services, he was now prescribed drugs to reduce aggression and agitation. A capacity assessment, carried out by a medical student, had found Mr B to lack capacity, but there was no evidence of this relating to specific decisions as required in the MCA, and the diagnosis appeared to rely heavily on his score on a Mini-Mental State examination.
When asked by the best interests assessor, his nephews stressed Mr B’s independent nature, and thought he would be much happier at home than in a care setting. They pointed out that Mr B had a supportive network of neighbours, and that his GP had no worries about him before this hospital admission.
The mental health assessor reported that Mr B was ‘better than they described’ and would have scored more highly on the Mini-Mental State examination when he saw him, despite some word-finding difficulties and cognitive impairment, probably caused by a dementia-like condition.
Mr B showed little insight into his needs, but expressed his strong desire to be at home rather than ‘fussed over’ in residential care: he told both assessors that he had gone into hospital to get his knee fixed, not to be imprisoned, and that he hated having no choice left in his life.
The best interests assessor concluded it was in Mr B’s best interests for the deprivation of liberty to continue in the very short term, while a discharge plan was being implemented. Conditions for the authorisation included a second opinion about the prescription of antipsychotic drugs, and that, in the light of the marked improvement in his mental state following the time immediately post-surgery, the hospital should make every effort to improve Mr B’s ability to decide for himself how he should live.
At a best interests meeting the following week, attended by Mr B and his nephews as well as staff from the hospital, the GP surgery and the local authority, a decision was made that Mr B should return home with a care package, which he successfully did.
Mrs S (89) is a widow who lives alone. She has a diagnosis of vascular dementia. Her relatives noted that she was very independent and proud, and despite refusing support, managed in the community due to strict routines. One night, the police found her wandering in the street very confused and very cold, so they took her to a hospital where she was admitted to a medical assessment unit.
She banged the doors trying to get out, and assaulted nursing staff. She was diagnosed as suffering from an infection, and treatment with antibiotics was started. A mental health assessment concluded she was not detainable under the MHA and the managing authority gave itself an urgent DoLS authorisation and applied for a standard one.
The best interests assessor concluded that Mrs S did not have the mental capacity to make care, treatment and or risk decisions or decide where she should live at the present time.
The assessor recommended a short term DoLS authorisation, with conditions to enable medical and social care assessments to be concluded, and a best interests meeting to be arranged. The assessor anticipated that, following treatment for the infection, Mrs S’s confusion could lessen, leading to consideration of her returning home and the protection of her Article 8 rights.
Mr and Mrs S, both in their 90s, have been married for 70 years and are devoted to each other. She has dementia, and is very dependent on her husband for physical care; she lacks capacity to understand her care needs, and is anxious if separated from him.
Following a fall she was admitted into respite care. She was not badly hurt, but when her husband asked to take her home he was refused: this was because he persistently refused services and support (apart from their family, most of whom lived some distance away), and therefore safeguarding issues had been raised. The care home gave itself an urgent authorisation under DoLS. At the start of the assessment process it was clear that the home staff were convinced that Mrs S could never return home. In the formal assessment process that followed, they were made aware of the devastation caused to both Mr and Mrs S by these breaches of their human rights (her Article 5 right to liberty, their joint Article 8 right to a private and family life) and their view of the risks to her became more balanced within a more holistic assessment of Mrs S’s best interests.
A short period of authorisation was agreed with a condition that the care providers were committed to working with Mr S to enable his wife to return home. To strengthen his position, he was named as his wife’s representative under the Safeguards, so he felt able to visit often and advise on her care. The supervisory body appointed an IMCA under the DoLS provisions to help him understand his rights of challenge. He agreed to accept a care package at home, and Mrs S returned home, where she lived happily for a further nine months.
When his wife died, Mr Q (90) came into a care home from the smallholding where they had lived for many years. He was incommunicative, and staff thought him very suspicious of them, and somewhat confused. They found Mr Q very resistive to bathing and showering; in their words, ‘It was a battle to get him to keep clean or change his clothes.’ He also worried them by wanting to go out alone. Although he was quite mobile, there were concerns that he might get lost, and the home had twice notified the police, who had found Mr Q several miles away, but saying he knew his way back to the home. Mr Q’s daughter-in-law supported the staff’s actions in restraining him, saying he’d always been ‘difficult’. The care home became worried that the battles were getting worse, and applied for a standard authorisation.
The best interests assessor identified that Mr Q had capacity to refuse their interventions: Mr Q explained that he wasn’t used to bathrooms, and preferred to wash at the sink. He also thought they were being nosy asking him where he was going, and wanting him to change his clothes so often – he resented the implied criticism. He thought he was unlikely to fall, but he would take that risk: he couldn’t bear being indoors or with other people all day.
Mr Q was then invited to help staff draft his care plan, which, with his input, consisted of minimal intervention, more stews at dinner time and acceptance from the staff that he was free to wash how he wanted, wear what he wanted, and go for long walks.
Isabel (28): DoLS example from practice
Isabel (28) has a mild learning disability, and suffered an accidental brain injury two years ago. Since the injury she has been very impulsive, putting herself at risk by rushing across roads, trying to jump out of cars and climbing out of windows. The triggers are usually pet animals or small children. She is being assessed for her second period of authorisation, in a specialist nursing home. The mental health assessor is concerned about the effect deprivation of liberty is having on Isabel’s mental health: there are signs of depression, and Isabel’s self-esteem appears lower than at the time of the earlier authorisation. She says nobody listens to her. The assessor explains his findings to the managing authority and the best interests assessor, and queries whether a less restrictive care plan, perhaps involving access to pets, is possible.
Mr T is a 64-year-old with a diagnosis of alcohol-related dementia leading to hallucinations, paranoia, continued drinking, self-neglect, exploitation, assaults in the community and outbursts of violence and aggression.
He had briefly been detained under Section 2 of the MHA 1983, but his dementia did not respond to treatment. He remained on the ward since there was nowhere else for him to go, and his considerable physical health problems meant that he needed help with medication.
Mr T kept trying to escape from the ward and join his unit as he thought that he was still in the armed forces. Following a best interests meeting it was decided to seek a specialist care home placement. In the interim, it was identified that Mr T’s rights needed protecting, and a request was made for a DoLS authorisation. The eligibility assessor examined carefully the nature of his treatment, and decided that, but for his physical condition and the need to manage this, combined with the difficulty of finding a suitable care home, Mr T would not have needed to remain in the mental health unit. Therefore he was not a mental health patient, and ‘not ineligible’ for DoLS.
Mr T remained on the ward, with the protection of an authorisation, until he was placed in a small specialist unit. During his time on the ward, his paid relevant person’s representative, supported by an IMCA, requested that the supervisory body review the eligibility requirement, since they felt Mr T should have been detained again under the MHA. A different eligibility assessor came to the same conclusions as the first, that the DoLS authorisation was the appropriate legal framework to protect Mr T’s rights.
Mr T, a widower of 74, lives in a care home. He has dementia. His only relative in this country is his daughter Jane.
Following a stroke, Mr T’s confusion increased, and he began leaving the home, even climbing out of windows, because he thought his mother was calling him. The care home believed it was depriving him of his liberty by repeatedly preventing him from leaving, so gave itself an urgent authorisation and requested a standard one.
The best interests assessor discovered that Jane T was a police officer currently on night duty. She had never heard of the Safeguards, and greatly wanted to be part of the assessment process for her father. The urgent authorisation was extended for two days until her shift pattern changed and it was possible for her to be at the care home when the best interests assessor visited.
Millie (39) has a learning disability, and following the death of her mother, who cared for her, has been placed in a care home as an emergency. The home has sought an authorisation under the Safeguards because Millie is distressed and resisting personal care in a very challenging way. The other residents are all older people with dementia. Both the best interests assessor and the IMCA, who was commissioned when the supervisory body found that Millie no longer had no close relatives or friends, feel the placement is wrong for her. The best interests assessor recommends authorisation for a maximum of four weeks to allow a best interests process to take place and somewhere more suitable to be found. She suggests a condition that the managing authority should recognise Millie’s bereavement, and work with her to create a life story book.
Molly (91) was admitted to a large general hospital from her home with a chest infection. She had advanced dementia, and her daughter Jean had given up her work as a hospital nurse to care for her, with the help of two other nurses funded by a direct payment. The family belonged to a minority religious group, and often felt misunderstood by the wider community.
Molly lacked capacity to consent to admission, or to treatment: her admission, and the treatment for her chest infection, were agreed to be in her best interests. Molly also had a pressure sore and an infected toe. Jean and the other nurses had been treating these under the supervision of the GP, who agreed that Molly was probably approaching the end of her life.
Relations between ward staff and Jean were poor. Jean was seen as bossy and interfering, and in her turn she felt staff ignored her greater knowledge of her mother’s condition. She also complained about staff being slow to provide essential personal care. Voices were raised on both sides. Staff then criticised Jean’s previous care of her mother, citing the pressure sore, and raised a safeguarding alert. They allowed other relatives, and religious leaders, to visit Molly, but barred Jean from the ward. Jean’s solicitor queried this and the hospital then gave itself an urgent DoLS authorisation, and requested a standard authorisation.
The best interests assessor, Frank, spoke to the other nurses who had looked after Molly at home, and to the GP. They praised Jean’s nursing skills and commitment to her mother’s wellbeing, while commenting on her perfectionism and tendency to micro-manage. Molly’s elderly husband, and other relatives and friends, all wanted Molly home as soon as she was well enough, to be cared for by Jean, the other nurses and the GP, for the rest of her life. The hospital’s position was that Molly should remain there, so her other medical problems could be treated. Staff said that if the deprivation of liberty was not authorised they would still prevent Jean from seeing her mother, under the umbrella of safeguarding. Frank explained that where relatives and professionals disagreed, if mediation was unsuccessful the hospital must apply to the Court of Protection for a best interests decision. He shared his opinion that it was disproportionate to the risk and seriousness of harm to Molly to refuse to allow Jean to visit, and to refuse to consider whether, and how, Molly might return home.
After discussions with the hospital’s legal department, and with the GP, it was decided that Molly’s treatment could safely continue in her own home, with additional input from the district nurses.
Mr J (23) has learning disabilities and Asperger’s syndrome, with behavioural difficulties including aggression when frustrated or anxious.
He was admitted in an emergency to a local residential care home, after a violent incident at home connected both to his problems and to his mother’s mental health issues and substance abuse. The local unit was unable to manage his behaviour, so he was placed in a specialist home 50 miles away.
He lacked capacity at this time to consent to arrangements made by the home for his care. The staff in the unit brought him back in his pyjamas from several attempts to go home at bedtime, when he was missing his mum, and additionally refused to allow his mother to visit.
The unit gave itself an urgent authorisation and requested a standard one. The best interests assessor identified breaches of Article 5 and Article 8 of the Human Rights Act 1998 and decided that Mr J had been deprived of his liberty. She found the level of restriction to be disproportionate to the risk and seriousness of harm to Mr J and decided that this deprivation of liberty could not be authorised as it stood. She informed the commissioners of the service that a serious dispute between Mr J’s mother and the unit should be mediated and, if intractable, referred rapidly, by the local authority, to the Court of Protection.
A formal best interests meeting was convened urgently. As part of this, contact between Mr J and his mother was reinstated, including facilitating visits from his mother to the care home. These visits were successful. A care plan was agreed that worked towards moving Mr J into a supported living setting, close to his mother’s home. Care staff are now working to give him increased daily living skills and Mr J is no longer deprived of his liberty, but looking forward to a more independent lifestyle.
Mrs M, who has dementia, was moved from her home to a care home as an emergency following the sudden death of her husband, who had cared for her. Since she was continuously asking to go home, and unable to comprehend her husband’s death, the care home gave itself an urgent authorisation, and applied for a standard one.
When the best interests assessor visited, he found that there was a deprivation of liberty, and that it was in Mrs M’s best interests to remain in the home in the short term while other options were explored: the authorisation was granted for four weeks. When this authorisation was about to expire, the assessor re-visited, and was very concerned to find that Mrs M had not settled, and had lost a considerable amount of weight. He discussed with the authoriser and with the care home manager his view that the ongoing deprivation of liberty was evidently not in Mrs M’s best interests since she was so unhappy, although no less restrictive options for her care had been identified.
The care home manager rang the authoriser to say she would have no authority to keep Mrs M safely at the home over the weekend if the authorisation was not granted. She felt it was impossibly risky to let Mrs M, who was extremely confused, return home to an empty house: she had found that Mrs M’s daughter was away for the weekend, and unable to return home immediately to care for her mother. The authoriser consulted with the assessor and the relevant service manager, who agreed to arrange a best interests meeting (to include Mrs M and her daughter) for the following week to explore how best to ascertain and meet Mrs M’s best interests. The assessor recommended a maximum length for a subsequent authorisation of a further three weeks, and the authoriser agreed.
Jehan has a learning disability and physical disabilities that make it hard for him to communicate.
Staff have learned, from Jehan’s parents, that when he is stressed it calms him to play with balloons: his sign that he wants to do this is that he blows out little puffs of breath. Jehan’s care plan explains to staff that they should blow up balloons for him when he does this, and that they should also explore what might have caused him to feel stressed.
The aim of this is to enable them to reduce incidents when they have to restrain him in his best interests. The best interests assessor finds inconsistency in staff awareness of this. She suggests a condition that the managing authority monitors staff training about Jehan’s care plan, and records adherence to it. She adds the requirement that, if the authoriser removes this condition, she wants to be informed since she does not think the authorisation could be said to represent the least restrictive option and be in Jehan’s best interests, without this condition to ensure his care plan is complied with.
One local authority has its reviewing officers working very closely with the DoLS team. The reviewing officers refer clients who receive their care in their own homes or in other community settings to the DoLS office if they have concerns about restrictions. The DoLS office then sends out a best interests assessor to establish whether there may be a deprivation, whether it is in the person’s best interests (or whether it could be made less restrictive) and whether an application to the Court of Protection is needed.
Another local authority has introduced procedures to ensure that particular care is taken in planning clear pathways for people with a learning disability at the point of transition to adult services. The restrictions which may be appropriate for a child may no longer be appropriate for a young adult and may amount to a deprivation of liberty unless challenged. Where such restrictions may be thought necessary in the person’s best interests, and the person will be in a care home or hospital setting when they reach the age of 18, they require assessment and authorisation under the Safeguards. If the person is likely to be in supported living accommodation, or living in their own or the family home, deprivation of liberty can only be authorised through an application to the Court of Protection.