In March this year, the Supreme Court handed down its judgement on two cases which will have significant impact in determining whether arrangements made for the care and/or treatment of an individual lacking capacity to consent to those arrangements amount to a deprivation of liberty.
Key points of the Supreme Court Judgement: The Court ruled that there is a deprivation of liberty in terms of Article 5 of the European Convention on Human Rights if the person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements. Whether the person objects to the arrangement or not is irrelevant, as is the ‘relative normality of the placement in the context of the person’s needs.’
The Department of Health has issued the following recommendations:
- Familiarise your selves with the provisions of the Mental Capacity Act, in particular the five principles and specifically the “least restrictive” principle.
- When designing and implementing new care and treatment plans for individuals lacking capacity, be alert to any restrictions and restraint which may be of a degree or intensity that mean an individual is being, or is likely to be, deprived of their liberty (following the revised test supplied by the Supreme Court)
- Take steps to review existing care and treatment plans for individuals lacking capacity to determine if there is a deprivation of liberty (following the revised test supplied by the Supreme Court)
- Where a potential deprivation of liberty is identified, a full exploration of the alternative ways of providing the care and/ or treatment should be undertaken, in order to identify any less restrictive ways of providing that care which will avoid a deprivation of liberty
- Where the care/ treatment plan for an individual lacking capacity will unavoidably result in a deprivation of liberty judged to be in that person’s best interests, this MUST be authorised.
Authorising a deprivation of liberty: The DoLS process for obtaining a standard authorisation or urgent authorisation can be used where individuals lacking capacity are deprived of their liberty in a hospital or care home.
The Court of Protection can also make an order authorising a deprivation of liberty; this is the only route available for authorising deprivation of liberty in domestic settings such as supported living arrangements. This route is also available for complex cases in hospital and/ or care home settings.
Individuals may also be deprived of their liberty under the Mental Health Act if the requirements for detention under that Act are met.
The practical implications of this are far from clear. Any patient who, if they asked to leave, would be refused permission, is now technically subject to deprivation of liberty and should be reported under Deprivation of Liberty safeguards. Individual trusts are anticipated to take different pragmatic responses regarding this. It is important that all trusts consider their position in light of the ruling as a considered position will be more defensible than one which has not taken account of the change in the law.
British Geriatrics Society 
As far as I understand it this ruling means that any patient in hospital who lacks capacity and requires treatment (perhaps for more than a few days?) should be subject to a DOLS. This is an unreasonable situation in my opinion particularly if there are next of kin agreeing to the treatment, and where no restraint is being used.
I hope the law will be changed as we will now be employing large numbers of DOLS assessors to approve the treatments. This will unnecessarily divert health and social care funds from these very patients – with no benefit certainly in hospital. Already we are seeing social workers being moved from frontline posts into safeguarding roles.
Clearly safeguards are needed for those with no advocate but applying this ruling in acute general hospitals is bureaucratic and unnecessary.