Department of Health Guidance: Response to the Supreme Court Judgment/ Deprivation of Liberty Safeguard
Original Document: Response to the Supreme Court Judgment/ Deprivation of Liberty Safeguards
LMC Commentary December 2015
This important document, The Department of Health Guidance: Response to the Supreme Court Judgement/Deprivation of Liberty Safeguards (DoLS), refers to a judgement given in March 2014 in the case of Cheshire West and others versus Surrey County Council. It clarified an "acid test" for what constitutes a deprivation of liberty (DoL) for the purposes of Article 5 of the European Convention on Human Rights. It states that and individual is deprived of their liberty in these terms if he or she meets all of the following conditions:
- lacks the capacity to consent to treatment or care arrangements;
- is under continuous supervision and control;
- is not free to leave (with or without assistance).
A DoL for such a person must be authorised under the DoLS regulations (part of the Mental Capacity Act 2005) or by the Court of Protection (including placements in supported living arrangements in the community) or under the Mental Health Act 1983 (MHA).
The Supreme Court further held that other factors were not relevant to deciding if there was a DoL and these were:
- whether or not the individual objects to the care or treatment;
- the reasons for the placement or treatment;
- comparisons with others in similar circumstances - every case must be considered on its own merits.
All this has meant that the number of DoLS applications has gone up ten times in the last year. This is a considerable amount of extra work for health care providers and for the Adult Social Care departments who assess and authorise the applications many of whom are failing to meet the legal time limit for the process. In this document the DoH advises providers that the adaptation to the full implications of the Supreme Court judgement is "a journey" for which an action plan needs to be devised. One feature of such plans is the prioritisation of cases by social services and that providers should not delay in making applications for those they believe satisfy the "acid test" whilst accepting that there may be inevitable delays in their being processed. The DoH believes that if, in the meantime, good quality care which is true to the principles of the MHA is given providers "should not be harshly treated for technical DoLS breaches." The CQC is expected to see that providers are submitting applications promptly and working with local authorities to prioritise cases.
There is specific guidance for particular settings including intensive care and emergency departments where operation of DoLS is causing concern. Providers are reminded that they can self-authorise a DoL for up to seven days under the urgent application process. Unfortunately European Court of Human Rights case law talks about persons being confined or restricted for a "non-negligible period of time" for a DoL to be required but does not define what this might mean. However care should always be given in an emergency where an individual cannot give consent but professionals should act in what they judge to be his or her best interests. Capacity is only required for the specific care or treatment in question and not every individual with a mental disorder defined under the MCA (including dementia) will lack all capacity to make specific decisions.
In end-of-life and palliative care settings providers are encouraged to recognise that, in most normal situations, families and loved ones of the dying will not think of the patient being unable to give consent as being deprived of his or her liberty. Professionals are encouraged to have confidence that if they are working to MCA principles, DoH guidance and keeping good records, then they should not feel obliged to make an application which could only cause distress and be of no benefit to the patient.
The DoH believes that it would be very rare for there to be a DoL during transporting a patient in an ambulance for the purposes of treatment. Restrictions in such cases would be under the terms of the MCA.
The death of a person subject to a DoL authorisation is legally categorised as a death in "state detention" and so must be reported to and investigated by a coroner. The Chief Coroner has issued guidance to coroners and this was the subject of a separate LMC summary. The inquest could be a "paper" one without a jury or postmortem. It is not surprising that the DoH has received reports of bereaved families whose grief has been exacerbated to learn that their relative has died whilst "deprived of their liberty in state detention" when what they saw was a normal situation of care. Good communication is, as ever, paramount if the arrival of uniformed police officers after a peaceful, expected death out of hours is to be avoided. A "proportionate and pragmatic" response has been called for in a letter from a coroner to local GPs.
This is a sensible and well-written document but it cannot hide the fact that this Supreme Court judgement has not ended the complicated and onerous circumstances pertaining to situations where, by the very nature of things, health and care providers have been working in the best interests of vulnerable people for many years. The law must be complied with but one cannot help wondering how many will be really better served? One person who would otherwise be wrongly deprived of his or her liberty is enough justification. Nevertheless it seems that even this "clarification" means that, strictly speaking, providers could find themselves on the wrong side of the law and that the DoH is urging that everything should be all right if people are reasonable and the law not enacted. This is not always the same thing as obeying the letter of the law and we can probably reasonably expect more test cases to follow.
Dr Barry Moyse
Deputy Medical Director