healthcare update - issue 11
Just playing with DOLS?
The Deprivation of Liberty Safeguards have been in
effect for a year, but their application is still uncertain, and
inconsistent.
The Deprivation of Liberty Safeguards (DOLS) were introduced, to
supplement the Mental Capacity Act (MCA), to protect people without
capacity who are outside the procedural safeguards of the Mental
Health Act to decide where to live.
The seminal case was HL v Bournewood, where the House
of Lords held that the common law doctrine of necessity allowed a
patient to be detained informally at a hospital. The European
Court of Human Rights, however, found that to be a breach of
HL’s right under Article 5 of the convention not to be deprived of
his liberty without due legal process and procedural safeguards. It
was said that there were tens of thousands of people caught in this
'Bournewood gap', which the new DOLS system was designed to
fill.
However, since coming into force on 1 April 2009, the
implementation of DOLS has been inconsistent, patchy and fraught
with uncertainty.
On average, only one third of the applications expected by the
Department of Health (DH) have been made, but some areas have seen
much more than double the DH estimate, suggesting that the
benchmark itself might have been set very low.
There is every reason to believe that despite the enormous
efforts to raise awareness among the relevant health and social
care staff, DOLS authorisations are simply not being requested in
circumstances where they should be, and many people are still
caught, unprotected, in the Bournewood Gap. Certainly, the
paperwork and bureaucracy of the system is formidable, and as one
DOLS lead has remarked to me, “where is the sanction for not using
it?”
In practice, the idea seems to be that in time there will be
sufficient clamour and litigation from the patients themselves,
seeking Judicial Review or declarations that their detention is
unlawful, to drive up compliance.
We are likely to see a rise in litigation, both where the
process has not been used, and where a patient or family is unhappy
with the decision. There is also a problem over the relationship
between DOLS and other aspects of provision of care. Often, the
authorisations are only granted subject to conditions intended to
minimise the deprivation of liberty, but which are very onerous in
terms of resources, seemingly side-stepping the usual decision
making over allocation of resources altogether. This is
unsustainable, especially as the use of DOLS increases, at a time
of growing pressure on budgets.
The case law to date has done little to clarify the key issues.
We have not yet had judicial comment to supplement the Code of
Practice on how to define a deprivation of liberty, and the leading
case on the relationship between DOLS and the Mental Health Act
(GJ v a Foundation Trust, November 2009) is pretty much
impenetrable, but seems to reach a conclusion that is totally
contradicted by the DH
in its briefing on the case.
In the absence of clear guidance, it will be important to seek
appropriate advice if there is any doubt about how to use the
safeguards.
In the meantime, with the anniversary of the safeguards comes an
obligation on Supervisory Bodies (all PCTs and local authorities)
to ensure that their assessors (both Best Interests and the Mental
Health Assessors) have had appropriate refresher training, though
there is no central guidance as to what that training must
include.
After consultation with the Department of Health, we are now
providing refresher training to a number of local authorities and
PCTs throughout the region, as well as appropriate training to the
Authorising Officers who ultimately take responsibility for signing
off the DOLS authorisations, to ensure that there is no unlawful
detention.
If you would like to discuss your own experience / queries of
DOLS, the MCA, or the provision of the mandatory refresher training
for Assessors, please do not hesitate to contact us.
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The content of this update is provided for the purposes of general
interest and information. It contains only brief summaries of
aspects of the subject matter and does not provide comprehensive
statements of the law. It does not constitute legal advice and does
not provide a substitute for it.