Sarah Goldberg is Associate Professor in older persons care at the University of Nottingham; Rowan Harwood is Professor of geriatric medicine at Nottingham University Hospital; Adam Gordon is Honorary Secretary of the British Geriatrics Society and a consultant geriatrician
Health care professionals in England and Wales, have been slightly Janus-faced about Deprivation of Liberty Safeguards (DoLS) since the roll-out in response to the Bournewood judgement in 2008.
On one hand they have been seen as an important adjunct to the 2005 Mental Capacity Act, protecting vulnerable patients from the worst vagaries of best interest assessments. On the other hand, they are considered logistically burdensome, generating both additional paperwork and workload for hard-pressed health and social care professionals.
These rulings have effectively extended DoLS in England and Wales to the domestic setting (when the Court of Protection must provide authorisation) to any patient who would be refused the right to move freely, even if they had not asked to do so, or were incapable of doing so. The ethics of the situation are complex and difficult. One must reconcile the individual right to autonomy against the potential harms sustained if social services are overstretched by processing an unseemly burden of applications. These issues are being reviewed on behalf of the BGS by Dr Prem Fade and Dawne Garrett, who presented an excellent session on DoLS at the Brighton spring conference. In the interim we have summarised the key issues in an Age and Ageing editorial (available online through the journal’s advance access portal).”
DoLS require that, where an individual who lacks capacity is deprived of their liberty, an application should be made to a ‘supervisory body’ – the local authority in England and either the local authority or relevant health board in Wales – for authorisation to accommodate the individual. The supervisory body assesses the person’s capacity and best interests, reviews the planned care and determines if detention is appropriate.
The Code of Practice for DoLS published in 2008 was vague. ‘Restriction’ of liberty was permitted under the Mental Capacity Act 2005, if necessary to preserve life or health, and proportionate to the threat. ‘Deprivation’ of liberty was deemed to occur if the extent and duration of restriction ‘amounted to’ deprivation, ‘taking into account’: the use of sedation or physical restraint; refusal to release a person to the care of others; restricting visiting rights; or loss of autonomy due to constant supervision and control. Given such lack of clarity, physicians have often tended to avoid applying for DoLS, arguing that they were not depriving, but merely restricting, liberty.
Case law, however, has supervened, following a ruling from the Supreme Court in April 2014 regarding the cases of P, MIG and MEG. P was a man with learning disabilities who had one-to-one care in a supported bungalow, enabling him to undertake outings and activities. However, he wore a restrictive body suit to prevent self-harming. MIG and MEG were sisters with profound learning disabilities. MIG lived with a foster family, to whom she was devoted. MEG lived in a care home, but went on outings and to college. Their cases were reviewed in April 2014 by the UK Supreme Court. In that judgement, Lady Hale stated that “what it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place…and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person”. She added: “a gilded cage is still a cage”. People may be justifiably deprived of their liberty if it is in their best interests, and they may be happier and better cared for if they are. But it remains a DoL, and must be subject to safeguards.
Picture credit: L Weiling via flickr