Mental Capacity Act and Deprivation of Liberty Safeguards: House of Lords review, suggested reform and practical implications
On 13 March 2014, the House of Lords published their report into the operation of the Mental Capacity Act 2005 (“the Act”), and associated Deprivation of Liberty Safeguards (DoLS). The report has been subject to some fairly sensationalist media coverage with “The Independent” reporting “The great mental health betrayal; enquiry slams “appalling” unlawful detention of tens of thousands of vulnerable people”.
Whilst the report does criticise the implementation of the legislative provisions designed to protect the rights of vulnerable adults, this headline needs to be set in context.
The Lords Commission was established in May 2013 and mandated to consider the implementation of the Act and DoLS. The Lords received evidence from a wide range of organisations, including academics, Local Authorities, Healthcare Trusts, Government Departments, Third Sector interest groups and the legal profession.
The Lords comment that they are reporting against the backdrop of Mid-Staffordshire and Winterbourne View. The report cites evidence suggesting that decisions made under the Act by health and social care professionals largely fail to appreciate the interests of the person to whom the decision relates, and are guided by “paternalistic” considerations (whether in terms of medical treatment, or adult safeguarding issues). The Lords accepted this view and found that the principles of empowerment and autonomy upon which the Act is based, are poorly understood by health and social care professionals.
The report makes no less than 39 specific recommendations including the establishment of an independent body to oversee and promote the implementation of the Act and the replacement of DoLS on the basis that it is overly complicated, poorly drafted, misunderstood and improperly applied.
The evidence underpinning this inquiry doubtless reflects the opinions of those providing it although this should be interpreted with caution. Many professionals on the ground may well echo some of these views although there are many thousands of health and social care decisions made on a daily basis in accordance with the Act. These situations may well represent the majority of cases where the principles are correctly applied and the outcome successful.
The evidence cited within the report seems to have been led by the relatively infrequent occasions where there is a matter of dispute or a genuine failure in applying the law.
These observations aside it is clearly incumbent upon providers to take steps to ensure that care and treatment delivered to those they are responsible for is delivered in accordance with the law.
The DoLS, at least from a provider perspective, are not that complicated. The key will be the recognition of a potential deprivation of liberty, which should be followed by a referral to the relevant Local Authority as ‘supervisory body’.
The DoLS code of practice at chapter 2, sets out some useful indicators where a person’s situation may amount to a deprivation of liberty, and include circumstances where:
- Restraint is used, including sedation, to admit a person to an institution where that 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, contact and residence.
- The institution has taken a decision that the person will not be released into the care of others, or permitted to live elsewhere, unless staff in the institution consider it appropriate.
- A request by carers for a person to be discharged from care is refused.
- The person is unable to maintain social contacts because of restrictions placed on their access to other people.
- A person loses autonomy because they are under continuous supervision and control.
The Supreme Court has recently affirmed these identifiers in the Cheshire West case1 and the DoLS will, for the time being at least, remain in place and should be adhered to. As part of this, the CQC are currently revising their essential standards to include a greater focus upon a provider’s compliance with the Act and DoLS. It is therefore necessary to ensure that there is evidence of compliance with these standards.
We have advised NHS Trusts and healthcare providers on the implementation of policies to ensure adherence with the principals underpinning both the Act and the DoLS. For instance, as part of the admission process, it is recommended that providers undertake and document the individual’s understanding of their situation and their consent to it, whether that be in a care home, hospital or any other care environment. User-friendly pro-forma documents and policies can be adapted for this purpose. Where a resident is determined to lack capacity upon the subject of admission, staff can go on to address the key identifiers noted above, and liaise with the Local Authority as necessary if a DoLS Authorisation is required.
The Government has been given 12 months within which to provide a response to the recommendations made by the Commission, so watch this space….
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.