The Deprivation of Liberty Safeguards have been in operation since 1 April 2009 and hospitals will be familiar with them, the Regulations supporting the Safeguards, the Code of Practice (DoLS code), guidance and forms. (2) many will have extensive experience of making applications, the assessment process and putting into practice an authorisation.
This section builds on what has been achieved to date and gives practice examples that promote compliance with the Regulations and Code (3) and the continuing protection of the rights of vulnerable people who are unable to consent to their care and treatment.
The guidance applies to all hospitals (including hospices), whether in the public, private or charity sector, irrespective of type (i.e. acute, community, mental health, etc.).
There are estimated to be some 2 million people in England and Wales at any one time who are unable to consent, in whole or part, to their care and treatment. (4) In 2015–16, 195,840 deprivation of liberty applications were made, and a little over 105,000 assessments were completed. In 76,530 (73 per cent) of these, the deprivation was authorised. Of the applications, 35,635 came from acute and mental health hospitals in the public and independent sectors. These figures compare with the roughly 11,000 applications made annually in hospitals and care homes combined prior to the 2014 Supreme Court judgement. (5)
For many practitioners the need to use the Safeguards will be infrequent. It is, therefore, important that hospitals do not neglect the Safeguards as a result of a lack of familiarity and find themselves unlawfully depriving a person of their liberty or, conversely, letting a person come to harm when use of the Safeguards might have protected them.
Application of the Safeguards is variable across England. The reasons for this are unclear but it may suggest that the Safeguards are not being fully embedded in organisations or that training is inconsistent. A report on the use of the Safeguards in hospital settings highlights the range of training and awareness, as well as wide variations in practice concerning who can sign an urgent authorisation to deprive a patient of their liberty. (6)
As a general guide, any institution, ward or professional caring for or providing treatment for people with dementia, a mental illness, a learning disability or an acquired brain injury should be familiar with the Safeguards. This is irrespective of the person using the service’s age once they reach adulthood (18 years), the funding arrangements for their care or the speciality caring for them – for example, a person with a learning disability may be occupying a surgical bed for removal of tonsils or a person with dementia may be receiving treatment in a medical ward.
Organisations will know that it is unlawful to deprive a person of their liberty in a setting other than a hospital or care/nursing home and any such cases should be referred to the Court of Protection for determination. Examples would be a deprivation of liberty in supported living accommodation or in a person’s own home.
The Care Quality Commission (CQC) provides guidance on both the MCA and DoLS. (7)
It is important that providers use it to judge whether they are meeting their duties and responsibilities under the Act.
The Bournewood judgement
The Safeguards were introduced to provide a legal framework around deprivation of liberty in a care and treatment setting, and prevent breaches of the ECHR such as that identified by the judgement of the ECtHR in the case of HL v. the United Kingdom (8) (commonly referred to as the ‘Bournewood judgement’, from the name of the hospital involved). The case concerned an autistic man (HL) with a learning disability, who lacked the capacity to decide whether he should be admitted to hospital for specific treatment. He was admitted on an informal basis under the common law in his best interests, but the decision was challenged by HL’s carers, who asked to take him home and were refused.
In its judgement in 2002 the Court held that this admission constituted a deprivation of HL’s liberty in that:
- the deprivation had not been in accordance with ‘a procedure prescribed by law’ and was therefore in breach of Article 5(1) of the Convention
- there had been a contravention of Article 5(4) of the Convention because HL had no means of applying quickly to a court to see if the deprivation was lawful.
The MCA 2005 was amended to provide safeguards for people who lack capacity to consent to treatment or care in either a hospital or a care/nursing home that, in their own best interests, can only be provided in circumstances that amount to a deprivation of liberty. (9) The later section entitled ‘What is deprivation of liberty?’ provides guidance on how to identify when a deprivation of liberty may be occurring.
Winterbourne View and Mid Staffordshire Hospital
The circumstances of HL’s care are not isolated. Reports into care, including at Winterbourne View and Mid Staffordshire Hospital, have highlighted issues where basic human rights have not been recognised and people have been neglected and abused as a result. (10)
The Safeguards do not authorise abusive practice and applications should not be seen as a way to legitimatise this. On the contrary, an application is a demonstration that staff understand people’s rights and are acting to promote and protect their rights and best interests.
- The Safeguards are just part of the framework within which hospitals should be working to ensure they respect people’s human rights and dignity. This framework is set down in law and includes:
- Human Rights Act (HRA) 1998
- Mental Capacity Act (MCA) 2005
- Disability Discrimination Acts (DDA) 1995 and 2005
- Equality Act (EA) 2010
DoLS and the experience of people who use services
Applying the Safeguards should not be seen as something separate from providing core health services. It is integral to the measures a hospital must take to protect and promote the rights of people who use services. Auditing the use of the Safeguards should, therefore, be part of an organisation’s quality improvement programme covering policy, audit, staff training, patient information, relative involvement and reporting on numbers of applications and outcomes. How the Safeguards are managed and implemented should form part of a hospital’s governance programme and the section (below) entitled ‘Applying DoLS in practice’ sets out what the programme in respect of the Safeguards might look like.
DoLS and the MCA 2005
The Safeguards are part of the MCA and cannot be effectively applied unless staff are familiar with the Act and have received appropriate training. The five statutory principles set down in Part 1 paragraph 1 of the Act equally apply to a patient for whom the Safeguards might be relevant:
- a presumption of capacity: every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise in respect of each specific decision
- individuals must be supported to make their own decisions: a person must be given all practicable help before anyone treats them as not being able to make their own decisions
- unwise decisions: just because an individual makes an unwise decision, they should not be treated as lacking capacity to make that decision
- best interests: an act done or decision made under the Act for or on behalf of a person who lacks capacity must be done in that person’s best interests
- less restrictive option: a person doing anything for or on behalf of a person who lacks capacity should consider options that are less restrictive of their basic rights and freedoms while meeting the identified need.
The less restrictive option is particularly important in relation to the Safeguards. For example, an incapacitated person on a medical ward receiving treatment for diabetes is prone to wander and might get lost and come to harm. They are persistently trying to leave the ward to the extent an authorisation under the Safeguards might be required. Staff need to consider the steps necessary to protect the person from harm while at the same time ensuring those actions are the least restrictive possible of the person’s basic rights and freedoms.
Applying DoLS in practice
As part of a hospital’s quality improvement and governance arrangements there should be a framework in place that promotes the effective use of the Safeguards. (For the purposes of the legislation, a hospital considering an application for a deprivation of liberty authorisation is known as a ‘managing authority’.)
The framework used by all hospitals should include the following.
- Staff training on the Safeguards (as part of wider MCA training) so that staff know how to assess for deprivation of liberty and recognise when care goes beyond restriction of movement and restraint which is lawful under the Act and towards deprivation of liberty. This training should feature in induction, training and refresher programmes and records of completed training should be kept.
- An organisational policy and procedure with particular reference to sections relating to training, levels of responsibility, access to and completion of requests for standard authorisations (form 4), urgent authorisations (form 1) and situations in which they can be used.
- A schedule of senior staff authorised to sign off applications before they are submitted to the supervisory body.
- Guidance on care planning which includes the Safeguards and explains how they support an effective care plan and are not a substitute for good care planning. Consideration should always be given to finding wherever possible alternatives to depriving a person of liberty: evidence of such consideration is explicitly required to create an urgent authorisation and in the application process for a standard authorisation (see DoLS form 1).
- Arrangements for training on restriction and restraint and associated record-keeping, with particular reference to care that moves from restriction and restraint towards deprivation of liberty. Staff should be sensitive to the relationship between restriction, restraint and deprivation of liberty and aware that whenever restriction is being used or considered it could in fact be a deprivation of liberty. If there is doubt an assessment should be sought, as explained in this resource.
- Procedures for scrutinising care plans by the hospital, to ensure that the least restrictive option is chosen which meets the need to prevent any likely harm to the person using the service, and is proportionate to that harm.
- A policy on how the hospital involves the person using the service (known within the DoLS process as the ‘relevant person’), and their family and carers in decision-making.
- A programme of audit work covering application of the Safeguards.
- A named person with responsibility for responding to CQC reports, relating to the hospital’s compliance with the MCA and DoLS.
- Arrangements for urgently reviewing care plans in circumstances where a best interests assessor finds a relevant person subject to a deprivation of liberty regime which is found not to be in that person’s best interests.
- A named person with the duty to report DoLS applications and outcomes to the CQC.
- A named person with the duty to report DoLS applications, trends and problems to the hospital board overseeing quality.
- A policy on where responsibility lies for the preparation and review of care plans.
- A policy on working in partnership with supervisory bodies and supporting assessors with access to records, and enabling them to interview the relevant person and their family/carers.
- Location of application forms (electronic versions of the forms can be stored at the hospital, and details on how to obtain them are available from any supervisory body).
- Patient and relative/carer information leaflets about the Safeguards and the local procedure
- A policy relating to reviewing authorisations and what actions to take when an authorisation ends.
- A policy on working with and supporting the relevant person’s representative.
- Arrangements for ensuring any conditions attached to an authorisation are complied with.
- Arrangements for access to legal advice, including when to seek advice from the Court of Protection.
Depriving a person of their liberty is not a decision that should be taken lightly even if it is in that person’s best interests. Hospitals should, therefore, have a procedure for agreeing who is authorised to sign applications and urgent authorisations, and this list should be formally approved. This is to ensure that there is awareness at senior level when restraint is being practised: it is not intended to discourage the application of the Safeguards.
The person authorised to sign off an application should be aware of, and involved, each time an application is being prepared. The list should be formally reviewed on a regular basis and staff should be trained to undertake their designated roles.
A survey of hospitals showed that the number of staff who sign applications, and urgent authorisations to deprive people of their liberty for up to seven days ranges from one or two to over 100 per hospital. ((11) It seems highly unlikely that any hospital management can keep effective governance over an excessively large number of authorisers, nor that large numbers of authorisers can create systems for auditing the use of restriction and restraint in the hospital with a view to minimising their occurrence.
DoLS and the care plan
An authorisation to deprive a person using the service of their liberty is part of that person’s care plan and not a substitute for it.
The care plan should be put together in accordance with the framework set down in the MCA 2005 and follow what the Act and subsequent case law says about capacity and best interests assessments. This includes the statutory duty to commission an IMCA in certain situations if the person has no family or friends to be consulted. The duty in the Act to consult with persons with an interest in the welfare of the relevant person equally applies to the Safeguards. It should of course also be built on the wishes and feelings of the relevant person, and should give reasons if and why these wishes and feelings are not being allowed, and what less restrictive options for the person’s care have been considered.
Working with the local authority as the supervisory body
On 1 April 2013 the supervisory body function previously undertaken by primary care trusts transferred to local authorities. Provision was made for this in the Health and Social Care Act (HSCA) 2012. This in no way alters the responsibilities of NHS and private sector hospitals beyond forwarding applications for authorisation to a different organisation. The regulations and guidance in respect of hospitals remain in place and the duty to seek authorisation when a deprivation of liberty is being sought, in the best interests of a person using the service unable to consent, remains.
Hospitals will wish to work with their local authority to secure clear lines of communication and co-operation. Each hospital’s local authority will have a DoLS office. For hospitals this means:
- keeping up to date and accurate contact information on their local authority DoLS office
- having a policy and procedure agreed with the local authority that allows assessors to have access to the person using the service in question, their family and carers, and relevant records (DoLS assessors have a statutory right to access relevant patient notes)
- staff knowing their organisation’s procedure for applying for a deprivation of liberty
- hospitals and local authorities agreeing a secure method of transferring identifiable information (e.g. encryption, secure network, safe haven, fax).
The case law relating to the Safeguards is evolving all the time and interpretation can be challenging. It is important that hospitals have access to reliable sources of information and guidance on case law developments so they can be applied to local practice where necessary. Hospitals will wish to ensure that their directly employed or contracted legal advisers are up to date on Court of Protection judgements and that processes exist for these legal advisers to feed the messages and the learning from case law into practice regularly.
It is essential hospitals are aware of the Supreme Court judgment handed down on 19 March 2014 and that the ruling is integrated into decision-making about patients. (70)
Restriction and restraint
When a person lacks capacity to consent to care or treatment, Part 1 section 6 of the MCA defines restraint as the use, or threat to use, force to secure the doing of an act which the person resists, or restricting a person using the service’s liberty of movement, whether or not that person resists. Staff can exercise restriction and restraint if they reasonably believe it is necessary to prevent the person coming to harm and that it is a proportionate response to the likelihood of the person suffering harm and the seriousness of that harm.
Hospitals will wish to ensure that:
- staff understand the legal framework around restriction and restraint, in particular that they are able to justify it as being in the person’s best interests and proportionate to the likelihood of harm, and that it is used for the shortest period of time possible
- staff are trained in the use of restriction and restraint techniques
- records are kept when the use of restriction/restraint has been used
- restriction and restraint practice is audited regularly and where improvements are identified an action plan to implement them is developed
- staff have access to guidance on the distinction between restriction and restraint, and deprivation of liberty.
If staff reasonably believe that the extent of restriction and restraint required in delivering care and treatment, in the best interests of a person using the service, goes beyond what is allowed under Part 1 paragraph 6 of the MCA and towards deprivation of liberty, then it must be specifically authorised. The next section deals with this in more detail. A key responsibility of the person responsible for the care of each individual person who uses services is to identify if this is the case and where required prepare the application for authorisation for sign-off by the approved senior member of staff.
When to seek authorisation
Knowing when to complete a form 4 and seek authorisation for a potential deprivation of liberty is not always straightforward. Hospitals are not required to know exactly what is or is not a deprivation of liberty, only to be alert to when the situation might be a deprivation. Courts have recognised that often this point can be a matter of opinion, and it is the assessment process commissioned by the supervisory body that determines whether a deprivation of liberty is occurring or not.
There is anecdotal evidence that some people have a mistaken belief that seeking and receiving an authorisation is in some way a stigma for the relevant person or the institution caring for them. There is also the view that because around half of applications are approved, an application not being approved is in some way a criticism of the hospital.
It should be remembered that the purpose of the process is to protect the rights of vulnerable people and ensure they are not deprived of their liberty unnecessarily and without representation, review or right of appeal.
The assessment process itself is a protection of the relevant person’s rights irrespective of the outcome. The outcome supports the rights of the relevant person and assures the hospital that the care regime is in that person’s best interests.
Each case should be judged on its own merits with the assessment procedure considering the following questions:
- Why do I reasonably believe the person lacks the mental capacity to agree to the restrictions or restraint in place? (For example, a formal capacity assessment has been undertaken and recorded.)
- Is the relevant person free to leave (whether they are trying to or not) the institution when they want to?
- Is the relevant person subject to continuous control and supervision?
- Is the care regime the least restrictive option available?
- Is the care regime in the relevant person’s best interests?
If a person lacking capacity to consent to the arrangements for their care and treatment is subject both to continuous supervision and control AND not free to leave they are deprived of their liberty.
It may not be a deprivation of liberty, although the person is not free to leave, if the person is not supervised or monitored all the time and is able to make decisions about what to do and when, that are not subject to agreement by others.
A hospital is far more likely to face criticism and potential legal action for practising deprivation of liberty without the appropriate authorisation than it would if it made application for authorisation in circumstances that were subsequently found not to be a deprivation.
As a matter of good practice, service providers should seek to reduce the necessity for urgent authorisation of deprivation of liberty (form 1) by planning ahead as part of good care planning practice. Given the likely profile and the circumstances in which an authorisation might be sought, providers should be able to plan ahead. This allows for a full and proper assessment to be undertaken prior to any authorisation coming into force. However, it is accepted that this will not always be possible in cases of emergency or crisis.
What is deprivation of liberty?
This resource is not a review of the case law since 2009. It does, however, provide assistance in making decisions about when an application should be made. The DoLS Code of practice (12) gives guidance in Sections 2.5 and 2.17 to 2.24. However, a hospital should consider the Supreme Court’s ‘acid test’ when determining whether a deprivation of liberty is occurring; namely, is the person who lacks capacity to consent to being in hospital kept under continuous supervision and control, and are they free to leave? Other questions to consider include:
- Is the care regime more than mere restriction of movement?
- Is the person being confined in some way beyond a short period of time?
- Is the care regime the least restrictive option available?
- Is the care regime in the person’s best interests? (Even if it is, it may still be a deprivation of liberty requiring authorisation.)
- Is the person being prevented from going to live in their own home, or with whom they wish to live?
Hospitals should note that a person’s compliance with, or lack of objection to, their care and support in hospital is not relevant to whether it amounts to a deprivation of liberty.
The courts have found that deprivation is a matter of type, duration, effect and manner of implementation rather than of nature or substance. (13) In simple terms, confining a person in their room, sedating them or placing them under close supervision for a very short period may not be a deprivation, but doing so for an extended period could be. However, what might appear to be mere restriction and restraint, such as a locked door, if repeated cumulatively, could also amount to a deprivation.
Section 2.5 of the DoLS code of practice (14) gives some examples of what could constitute deprivation of liberty, drawn from a range of court cases:
- restraint is used, including sedation, to admit a person to an institution where the person is resisting admission
- staff exercise complete and effective control over the care and movement of a person for a significant period
- staff exercise control over assessments, treatment, contacts and residence
- a decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff consider it appropriate
- a request made by carers for a person to be discharged to their care is refused
- the person is unable to maintain social contacts because of restrictions placed on their access to other people
- the person loses autonomy because they are under continuous supervision and control (for example, subject to one-to-one supervision).
Staff need to keep constantly in mind the question ‘Why do I reasonably believe this person lacks capacity?’, and regularly check the evidence.
Hospitals need to take the above pointers into account when determining whether the restriction and/or restraint being applied to a person who lacks the capacity to consent to their care and treatment, in their best interests, moves towards deprivation of liberty which then requires authorisation. Deprivation of liberty could be occurring if one, some or all the above factors are present. Hospitals should work closely with the local authority’s supervisory body, or DoLS team, so that any cases of doubt are immediately identified and discussed.
While parties should work closely together it remains the responsibility of the hospital to decide on the need for an assessment and to submit an application. Supervisory bodies should not be asked to ‘pre-screen’ potential applications.
It is generally better practice to err on the side of caution and make an application if it is believed that the level of restraint, or repeated frustration of a person’s wishes, could amount to a deprivation of liberty.
Working with people who use services
When the hospital is making a DoLS application, it should inform the relevant person plus any close family or carers. The hospital has a duty to identify if someone is without friends or relatives who are able and willing to be consulted as part of the assessment process, and to inform the supervisory body of this on the application form. The supervisory body would then appoint an IMCA under Section 39A of the MCA. The IMCA would then support the person being assessed and ensure they are involved in the process as much as their abilities allow.
An important role within the Safeguards is that of the relevant person’s representative, generally a family member or friend of the person, who has the right to request a review of any of the qualifying assessments, and to challenge an authorisation with an application to the Court of Protection, on behalf of the person. If the relevant person cannot choose their own representative (or there is not relative or friend available and willing to undertake the role), and if there is no person with a lasting power of attorney allowing them to choose a representative, the best interests assessor will nominate a person for the role. The assessor will generally identify a possible relevant person’s representative who would be asked to carry out this role. The relevant person’s representative must be able to keep in contact with the person: if the representative is a friend or relative, they have the right of access to an IMCA for help in challenging the authorisation if they so choose.
This is advocacy support and not legal representation, though paid and unpaid representatives do have a crucial role in challenging authorisations to the Court of Protection.
Once an authorisation has been granted, it falls to the hospital to inform and support the person being deprived of their liberty and their representative on matters relating to the authorisation. The following are examples of good practice adopted by many hospitals:
- working with and supporting the relevant person and their representative to ensure they understand what an authorisation means in relation to care and treatment, leaving the hospital, etc.
- ensuring they are aware of their right to request a review of the authorisation at any time
- having available for them information on local formal and informal complaints procedures
- supporting the relevant person and their representative in understanding their right of challenge to the Court of Protection (under Section 21A of the MCA) which would be legally aided, perhaps using the hospital’s patient advice and liaison service
- being aware that in the case of disputes the expectation is that the public body involved, generally the NHS hospital or, in the case of private hospitals, those hospitals or the relevant local authority, would take the matter to the Court of Protection
- being aware of the entitlement of the relevant person and their representative to the support of an IMCA (who would be appointed by the supervisory body)
- monitoring whether the representative maintains regular contact with that person and supporting them in doing so.
As the period of the deprivation of liberty progresses the hospital should:
- Monitor the case carefully.
- Set out in the care plan roles and responsibilities in relation to the deprivation of liberty plus details of any conditions attached to the authorisation and how these will be implemented and monitored.
- Keep a record of all actions taken in respect of any such conditions.
- Request a review from the supervisory body should the conditions need to change.
- Inform the supervisory body of any changes in the situation such as the person leaving hospital, any conditions attached to the authorisation needing to change, or the person’s presentation significantly changing in some way. In such circumstances the supervisory body will, upon notification by the hospital (or by the relevant person’s representative), undertake a review and the hospital should work closely with the supervisory body to ensure the review is conducted swiftly.
- Keep copies of applications and authorisations with the relevant person’s notes.
- Maintain appropriate records of the relevant person’s care and treatment during the period of the authorisation.
- Be aware that they must not deprive a person of their liberty any longer than necessary, and cease doing so if appropriate, even in advance of the supervisory body formally ending the authorisation.
Mr B (89): DoLS example from practice
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.
Working with IMCAs
In certain circumstances the relevant person being assessed for an authorisation will be entitled to the support of an IMCA, appointed by the supervisory body. In some cases the IMCA will continue working with the relevant person through the period of the authorisation and subsequent reviews.
Hospitals will be familiar with working with IMCAs in relation to serious medical treatment decisions and people who use services staying in hospital for 28 days or more, who lack capacity and appear to have no family or friends apart from paid carers. It is important that hospitals work with DoLS IMCAs in the same way they would with an IMCA in any other circumstances.
There may be occasions where someone suspects that a person who lacks capacity to make decisions to protect themselves is at risk of harm or abuse from a named individual. A relatively common scenario is where a family member may be putting pressure on a person to sign cheques or other financial papers when they no longer have the capacity to do so. Another example may be where a well-meaning relative is bringing in food which the person is no longer able to eat safely, putting them at risk of choking.
A result might be a suggestion or a decision by a hospital or local authority staff member that the person should not have contact with the named individual. This is a serious matter, a human rights issue which requires consideration of less restrictive ways of addressing the problem. Preventing contact is always a last resort, and the Code of practice suggests that it is the Court of Protection which should be the arbiter in matters of ‘no contact’.
Hospitals should note that an authorisation under the Safeguards, other than as a very short-term measure, should not be relied upon to manage ‘no contact’ cases and instead hospitals should seek a court decision.
Clearly such circumstances should be managed in close co-operation with the local authority’s adult safeguarding service. There is a risk the Safeguards could be used to inadvertently legitimise more general safeguarding concerns and this should be avoided.
Preventing a person from having contact and how this should be managed must feature in a hospital’s safeguarding policy and procedure. Preventing contact with family members may be a breach of a person’s human rights.
Mental health settings
Inpatient mental health settings are different from acute and community bed wards in that they are specifically designed for the compulsory detention of patients under the Mental Health Act (MHA). Hospitals will admit patients who satisfy the criteria for detention as set down in that Act and its own code of practice. (15)
If the hospital wishes to admit patients lacking capacity to give consent to admission without a detention under the MHA they would need to demonstrate that the care regime for those not detained under the Act is distinct and different from that for those who are detained under the Act. Otherwise there is a risk that a person who lacks the capacity to consent, even if they are not objecting to their care and treatment, is likely to be deprived of their liberty by simply being in that setting.
For patients in inpatient mental health units who are subject to DoLS, staff should be guided by the relevant legislation and code of practice, and the advice on good practice contained in that document.
Generally a person who is resisting being a mental health patient and is admitted to a unit registered to accept detained patients for the treatment of a mental disorder should be subject to the relevant section of the MHA.
The wider MCA and the MHA 2007 (1983) as amended are outside the scope of this resource. The CQC report, ‘Monitoring the Mental Health Act in 2011/12’ (16) (pp 34–35) highlights both the scale of de facto detention of notionally voluntary patients and, allied to this, staff confusion about their legal status, an example being where:
‘One member of staff described the patient as being ‘on’ a section 5 of the Mental Capacity Act. When the Commissioner explained that no-one can be ‘on’ a section 5 of the Mental Capacity Act, and that the powers of that Act cannot, in any case, authorise deprivation of liberty or detention, the member of staff said that the patient was ‘sort of detained’. This demonstrates how potential confusion about the powers of the Mental Capacity Act can be increased through imprecise use of language to describe patients’ legal status.’
It is important that mental health units are clear about the legal status of patients and with regard to DoLS know the criteria for applying the Safeguards and how this is different from informal status and detention under the MHA.
Mrs S (89): DoLS example from practice
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.
Human rights-based practice
Hospitals and the organisations managing them may find the following suggested guidelines helpful.
- The organisation has a named person with responsibility for ensuring and promoting MCA-compliant practice. This person should be a resource for information and the commissioning of training, and check that policies and procedures relating to people who might lack capacity are clear and are followed.
- This person has an active working relationship and regular meetings with the supervisory body which manages DoLS in the hospital’s area. The staff managing the supervisory body or DoLS office can provide useful information and support to a hospital in meeting its responsibilities as a managing authority under the Safeguards.
- The hospital MCA lead ensures that the hospital has a clear policy about who should sign urgent DoLS authorisations and who should request standard authorisations. The MCA lead is responsible for the monitoring and auditing of both training and practice, to bring concerns about DoLS or wider MCA compliance to senior management in a timely way.
- The hospital has clear policies, applying both to admission to any department (or transfer between departments), and during a person’s stay in hospital, about action to take when a person appears unable to consent to treatment or to being in the hospital.
- Ward staff should be able to identify when there are concerns about a person’s capacity to consent to or refuse the proposed treatment and follow the MCA guidelines as well as their own hospital’s policy and procedures.
- Clinical governance mechanisms are in place to ensure compliance with the MCA. Identified senior managers should receive regular information about all incidents of restraint of a person lacking capacity to consent to what is proposed, staff response, including mechanisms for learning from the incident, and assurance that staff action was the least restrictive of the person’s rights that could be identified.
- Restriction and restraint are not ‘blanket policies’ but identified for an individual relevant person and very frequently revisited in an attempt to reduce or remove the restraint and ensure it is the least restrictive option.
- Staff understand when and how to raise concerns that a person may be deprived of their liberty.
- Data on requests for a standard authorisation under the Safeguards are studied and possible gaps in appropriate use are identified and examined.
- Data on use of urgent authorisations are examined to identify possible less restrictive options: if a request for a standard authorisation, accompanied by an urgent authorisation, is refused, staff learning from that experience is facilitated.
- Care planning for people who might lack capacity is MCA compliant: staff understand how and when to make best interests decisions, and the importance of consultation with family or friends interested in the person’s welfare.
- If a person is facing a decision about serious medical treatment or where to live, lacks capacity to make that decision, and has no appropriate family or friends able and willing to be consulted as part of the decision-making process, staff in all wards/departments know how to request an Independent Mental Capacity Advocate (IMCA) (17) (18) to be part of the best interests decision-making process. It is a local authority responsibility to commission the service, but the IMCA can – and in relevant situations must – be instructed by NHS staff.
- Data are collected on IMCA referrals, andaudit procedures are used to identify circumstances of failure to instruct an IMCAin circumstances when that omission could be unlawful.
- As part of monitoring quality and patient experience, the MCA lead meets annually with the IMCA providerfor feedback on how decisions are being made regarding people lacking capacity to consent.
- Steps are taken to gather information about the experience of people who use services from family members and wherever possible from users who have experienced MCA principles being applied in practice.
The role of CCGs
This section looks at the roles and responsibilities of CCGs as commissioners of MCA-compliant services. It gives examples of the evidence CCGs could ask for from services and how the standard contract could support MCA compliance.
The HSCA 2012 determined that CCGs take on responsibility for commissioning the majority of local health care. All such health care has to be MCA compliant.
CCGs are required by their authorisation process to have a named MCA lead, together with relevant policies and training (19) The CCG’s MCA lead has primary responsibility on behalf of the CCG for ensuring that it commissions appropriate health care, in compliance with the MCA, for those adults normally resident within the area who may not have the capacity to consent to treatment even if that treatment is received in another area. The CCG is responsible for ensuring that all the services it commissions for people aged over 16 demonstrate compliance with the MCA and, for hospital care for people aged over 18, DoLS. CCGs receive funding to support understanding and implementation of the MCA.
As part of the commissioning process, CCGs could reasonably expect to see evidence of the following from hospitals providing care to adults who lack capacity to consent to the arrangements for their care and treatment in hospital.
- Written evidence of MCA-compliant capacity assessments and best interests decision-making.
- Evidence that each hospital has an MCA lead.
- Evidence that hospital staff have knowledge of DoLS and know how to identify restrictions that may mean that a deprivation of liberty is likely to be occurring or may occur, and that an application for authorisation may be required. Sight of summary reports on induction, training and refresher training records will help with this.
- Copies of local policies and procedures covering training, access to and completion of requests for standard authorisations (form 4), urgent authorisations (form 1) and situations in which they can be used.
- A schedule of senior staff authorised to sign urgent authorisations and requests for standard authorisations, prior to submission to the supervisory body.
- Arrangements for training on restriction and restraint and associated record-keeping with particular reference to person-centred care that moves towards deprivation of liberty.
- Evidence of how the hospital involves the relevant person and their family and carers in the decision-making process.
- Evidence from audit covering use of the Safeguards, with explanation of figures from individual departments that appear particularly high or low. Benchmarks could be set using NHS Digital and CQC data and working in partnership with the supervisory body.
- Copies of extracts from CQC reports relating to compliance with the MCA, including DoLS.
- Arrangements for automatically reviewing care plans in circumstances where a best interests assessor finds a relevant person subject to a deprivation of liberty regime which is found not to be in that person’s best interests.
- Records of compliance with the hospital’s statutory duty to report DoLS authorisation applications and their outcomes to the CQC.
- Evidence of the involvement of clinical governance processes in best interests decision-making.
- A report from the board on the treatment of people lacking capacity.
- Information on how often and in what way the hospital seeks legal advice in relation to the Court of Protection.
- Evidence that the Safeguards feature in reports relating to vulnerable people and those with dementia, acquired brain injury or learning disabilities.
- Evidence that the Safeguards are linked into the hospital’s systems and processes relating to improving people who use services’ experience and the quality of their care and treatment.
- Evidence hospitals have integrated the Supreme Court judgment of 19 March 2014 into practice.
In addition, CCGs (probably through their own MCA lead’s membership of a local MCA and DoLS multi-agency forum) will want regular meetings with their local supervisory bodies, which hold information on the numbers and outcomes of applications for assessment being submitted by hospitals. This could alert the CCG to potential concerns if, for example, a hospital whose patients have learning disabilities or dementia has a low number of applications compared to other similar hospitals.
Local and regional implementation networks should invite CCG MCA leads in their area to join them as part of promoting and sharing good practice and improving DoLS compliance.
The standard contract and mental capacity
CCGs will be familiar with the standard contract and the template it provides to guide commissioning decisions. Although it does not have a specific section in relation to people who lack capacity, MCA leads in CCGs can request the commissioning board to develop such a section if they wish, as the standard contract is updated annually.
In the meantime, MCA leads can use the following sections and ask hospitals to report on these specifically in relation to people who lack capacity:
- Service condition 9: policy on consent. Does this policy address in detail how people who cannot consent will be identified, who is responsible for carrying out assessments of capacity and who is trained and expected to carry out best interests decisions?
- Service condition 1: all services will be compliant with the law. How does the hospital board assure itself that the hospital is compliant with the MCA? What information does it collect and what does it monitor?
- Service condition 12: service user involvement. How does the hospital board assure itself that the experiences and views of those who lack capacity and their families are specifically recorded and acted on?
- Service condition 13: equality of access and non-discrimination.How does the hospital board demonstrate that it meets its obligations under the Equality Act 2010? Can it show that people with dementia or learning disabilities are receiving the same quality of treatment and care as others?
- General condition 5: hospitals are required to demonstrate they have staff with appropriate experience, skills and competencies. How does this relate to knowledge of the MCA and DoLS?
The standard contract is there to support commissioners. Commissioners can ask for information in specific sections in relation to specific groups of people (for example, people with dementia); they can ask commissioning support units to identify how to monitor activity and quality for people who lack capacity; they can use monthly monitoring of service meetings to raise questions and concerns. The standard contract and the DoLS indicators above give CCGs a framework for commissioning compliance with the MCA and the Safeguards.
Finally, CCGs will wish to work with local authorities to achieve successful delivery of the Safeguards. The local authority will commission six assessments, one of which can only be undertaken by a doctor. Each application requires assessments to be undertaken by a mental health assessor. These would usually be supplied by a mental health provider. CCGs should, working in partnership with the local authority, commission from their mental health provider the supply, training and release from other duties of suitably qualified doctors to undertake mental health assessments for the DoLS process.
5 – Mental Capacity Act 2005, Deprivation of Liberty Safeguards (England), Annual Report 2015–16, NHS Digital, 2016
9 – Department of Health (2005) ‘Bournewood’ Consultation: The approach to be taken in response to the judgement of the European Court of Human Rights in the “Bournewood” case (gateway Ref 267902) London
10 – Department of Health (2013), ‘Winterbourne View Hospital: Department of Health review and response’, London: Department of Health.
Department of Health (2013), ‘Patients First and Foremost, London: Department of Health.
13 – See e.g., Engel & Ors v the Netherlands (no 1) (1979-80) 1 E.H.R.R 47 and Guzzardi v Italy (1981) 3 E.H.R.R 333.
17 – Department of Health (2013) ‘The fifth year of the independent mental capacity advocacy (IMCA) service’, London: Department of Health.