MCA and DoLS guidance issued by the Department of Health
29th October, 2015
The DH (DH) has issued an update on the Mental Capacity Act (MCA) and Deprivation of Liberty Safeguards (DoLS) by letter. This update was sent to MCA and DoLS leads in the NHS and local authorities on 22 October 2015.
It provides some useful consolidated guidance about the DH’s position on a number of issues relating to DoLS, which will be helpful for staff working with patients in a variety of areas where there are concerns about whether a DoLS is needed following the Cheshire West decision. Click here to read the letter.
As a recap the Cheshire West decision provided an “acid test” for what constitutes a deprivation of liberty. If a patient lacks capacity to consent to their care or treatment arrangements, are under continuous supervision and control and are not free to leave the acid test is met and the patient’s deprivation of liberty must be authorised.
What does this mean for me
Key issues to note include:
- The Cheshire West decision has given rise to a tenfold increase in applications for DoLS authorisations. The letter makes it clear that NHS Trusts need to have a plan in place for how they will respond to the judgment and ensure no patients are deprived of their liberty unlawfully.
- It is important to make timely applications to local authorities for patients who Trusts believe meet the acid test. It is acknowledged that local authorities are struggling with the large number of applications made which may mean that applications are not assessed within statutory time limits. It is the view of the DH that if providers can demonstrate that they are providing good quality care and treatment for individuals in a manner compliant with the principles of the MCA and DH and other guidance is being followed then those providers should not be harshly treated for technical DOLS breaches. Providers should work with local authorities to ensure that appropriate prioritisation of individuals most likely to benefit form a DoLS assessment takes place.
- Trusts should ensure that they are considering the least restrictive options for providing care and treatment to patients and should only use restrictive care where appropriate.
Specific guidance is provided around certain areas of care.
ICU/Accident and Emergency
If there is to be a deprivation of liberty a person must be confined to a particular place for a non-negligible period of time. There is no set definition for this time period and it is suggested that Trusts should establish a working definition as part of their policy. This may need to be on a sliding scale as the period of time may shorten depending on the intensity of restraint given.
The DH reiterate that they do not consider a state of unconsciousness to be in itself a mental disorder. A patient will need to satisfy the mental disorder criteria as one of the six criteria required to be assessed for a DoLS authorisation to be given.
In an emergency situation and where a patient lacks capacity to consent treatment should not be delayed and should be provided in a patient’s best interests in accordance with the MCA.
In relation to patients in the last few weeks of their life the DH’s guidance is that if a patient has the capacity to consent to the arrangements for their care or treatment at a time before losing capacity and did consent, the DH considers this consent to cover the period until death and there is no deprivation of liberty. An exception to this is if a care package changes in a manner which imposes significant extra restrictions on the patient where they lack capacity to consent to those changes.
In terms of the acid test and the requirement to be “not free to leave” the fact a patient is physically not able to leave does not mean that they satisfy this requirement. The important question is would they be allowed to leave if assisted to do so by family? If they are allowed to leave they are not deprived of their liberty.
Save for exceptional circumstances it will be rare for there to be a deprivation of liberty when transporting a patient in an ambulance or other vehicle for care or treatment. If a patient is being transported on a long journey where they object and where significant restraints and restrictions are in place legal advice should be sought.
When a patient dies who is subject to a DoLS this must be reported to the Coroner. This can be distressing for the family and good communication is vital to try to alleviate this but to inform them of the need for an inquest.
Actions taken by Trusts in response to the Cheshire West decision
The letter has an annex which contains a list of examples of actions taken by Trusts and local authorities in response to the Cheshire West decision. These may assist your organisation when developing policies and procedures to ensure compliance with the legislation and case law.
How can we help?
The Cheshire West case has caused concern amongst clinicians as the acid test has increased the number of patients who will now fall within the definition of a deprivation of liberty. Ward Hadaway can provide interactive and practical training to your organisation in relation to all aspects of the MCA and DoLS. To find out more, or if you have any queries on the issues raised, please do not hesitate to contact Jeffrey Keeble or a member of our expert Healthcare Team
Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.
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