The 2005 Mental Capacity Act, implemented in 2007, aimed to legally protect the rights of people unable to make some or all of their own decisions and outline how decisions should be made for those lacking capacity. A 2013 review of the Mental Capacity Act established that the act was not being implemented as intended, particularly in relation to the deprivation of liberty, the legal authority to detail an individual under certain criteria.1 As a result, a significant number of individuals have been and are at risk of being deprived of their liberty without legal protection and due consideration.
These failings were challenged in two key court cases. Analysis of these cases has highlighted the practical changes required to ensure the Mental Capacity Act and Deprivation of Liberty Safeguards (DoLS) are accurately implemented, specifically through better identification of vulnerable individuals, a thorough assessment of their capacity and formalising the legal paperwork.
Changing legislation and legal challenges mean that an increasing number of hospital patients will require consideration of the Mental Capacity Act and DoLS during their hospital stay. To ensure that any patients who may not have full capacity to make their own decisions are appropriately and legally treated it is vital that all hospital doctors understand the crucial aspects of these changes.
What are the Mental Capacity Act and the deprivation of liberty safeguards?
The 2005 Mental Capacity Act was implemented in 2007 to protect the rights of people to make their own decisions and outlined how decisions should be made for those lacking capacity.2 The Mental Capacity Act states that someone lacks mental capacity for a particular decision if they cannot:
- Understand the information given to them
- Retain that information long enough to make a decision
- Weigh up the information and understand the consequences of the decision
- Communicate their decision by any means.
The main components of the safeguards are to provide a mechanism for deprivation of liberty to be reviewed and monitored regularly, to provide the person with a representative and to provide the person or their representative the right to challenge a deprivation of liberty through the Court of Protection.
How to apply the Mental Capacity Act and deprivation of liberty?
All healthcare staff must consider whether a person has the capacity to make particular decisions. If there are any concerns (eg. patient has dementia, appears confused, struggles to communicate etc.), a two stage capacity assessment must be completed. This aims to establish that the individual has an impairment or disturbance in the functioning of mind or brain and whether this means that they are unable to make decisions at that time. If the person is unable to make specific decisions then all effort must be taken to support the person to make that decision.
The four criteria (understand, retain, weigh up and communicate) must be applied to each specific decision, meaning a person cannot be deemed to globally lack capacity.
A best interests assessment must then be made to ensure it is in the person’s interests to be deprived of their liberty. This should take into account the person’s past interests and beliefs—advisably by consulting relatives and those close to the person in question.2
If the person is found to lack capacity and it is thought to be in their best interests to deprive them of their liberty to leave the hospital, care home or sheltered housing, authorisation for deprivation of liberty should be sought. This is applied for by the establishment where the person is deprived of their liberty eg. hospital doctor to the local authority. The local authority will then appoint a best interests assessor to evaluate the case and to decide whether authorisation for deprivation of liberty should be approved. This process can take a number of weeks and therefore in an emergency urgent authorisation can be given by a member of the managing body for seven days whilst waiting for a standard authorisation assessment. In hospital this will usually be a trust or hospital director.
For those without any relatives or close friends it is necessary to appoint an independent mental capacity advocate (IMCA). This is someone allocated by the local authority to make recommendations to support the person and help with the decision making process. They are usually called for when decisions around serious medical interventions such as major surgery, chemotherapy or withdrawal of care are being made. They also advise with discharge planning when accommodation for more than 28 days is planned.2 When applying for DoLS authorisation for persons without a next of kin, an IMCA must be sought.
Who needs safeguarding?
Previously hospitals requested authorisation for deprivation of liberty for patients who were on the ward who were lacking capacity and refusing care or trying to abscond. Patients to which this applied typically had behavioural issues resulting in the refusal of interventions such as cannulation and naso-gastric tubes or who were trying to leave the ward. Patients lacking capacity, but who were compliant were intended to be treated under the Mental Capacity Act but were often treated without formal consideration of their capacity.
Two key rulings from the Supreme Court in March 2014 now mean that these practices are not adequate. The first ruling was on P&Q versus Cheshire West and involved two girls, aged 16 and 15 years, with learning disabilities. P was placed with a foster mother and never attempted to leave the home, but would have been prevented from doing so if she had tried. The second girl, Q, was placed in a residential home, occasionally required physical restraint and received tranquilisers to prevent her from trying to leave.
The second ruling was on P versus Surrey County Council and involved a 37-year-old man with cerebral palsy and Down’s syndrome who lived in a staffed bungalow and occasionally required intervention when he exhibited challenging behaviour.
The court voted by a four to three majority in the case of P&Q and unanimously in the appeal of P that all had been deprived of their liberty. The basis for their ruling was that the European Court of Human Rights has established general principals, which apply to all regardless of disability and therefore a person’s compliance or lack of objection are irrelevant when assessing deprivation of liberty.3,4 In practical terms these rulings mean that all patients who lack capacity, who are under continuous supervision and control and not free to leave the ward should be considered to be being deprived of their liberty. This is irrelevant of their compliance with treatment or their desire to leave; meaning a significant increase in the number of people who must have capacity assessments and further action taken.5,6
What does this mean for hospital staff?
As discussed, these two rulings mean that significantly more Mental Capacity Assessments need to be completed. The approach to DoLS is however still unclear. Deprivation of liberty safeguards were initially designed for long-term use, for example with residents of care homes. The legislation makes no comment on its use in the short-term, such as in delirium, and as the Mental Capacity Act authorises restraint, where appropriate, this can be used for short periods. Again the Mental Capacity Act does not state what duration and frequency or restraint would contribute a deprivation of liberty and the current situation is a grey area.
Prior to this ruling there were 11,890 DoLS applications in the 2012/13 year; this was already an increase on the previous year (11,380 2011/12).7 Given that 40% of acute medical inpatients are thought to lack capacity it can be assumed that the number DoLS applications will significantly increase.8 The Department of Health has issued a note following the ruling where they advise healthcare workers to review new and existing care plans in individuals lacking capacity to determine if there is a deprivation of liberty.9 They also advise that DoLS must be applied for and authorised for these individuals. To go along with this recommendation they advise that local authorities will have to re-allocate resources in order to meet demand. The current situation where it takes weeks to assess a standard authorisation is not sustainable (see case study).9
What does the future hold for deprivation of liberty?
The May 2014 rulings have considerably widened the scope of the Mental Capacity Act and DoLS and there are more areas of the hospital to which this could be applied. For example, DoLS are not currently applied to sedated patients on the intensive care ward. However, there is no legal exemption of these patients and a case like this has yet to be tried, neither in the UK nor the European court.
There is great need for the legislation to be clarified as current legislation was designed with care home residents in mind and the application of the legislation to an acute hospital is vague and potentially open to a wide range of interpretations. The current system offers no simple guide on whom to apply the DoLS and for whom the Mental Capacity Act is sufficient, this is particularly true in individuals whose impairment may be transient for example in delirium.
Conflict of interest: none declared
1. Select Committee on the Mental Capacity Act 2005. Mental Capacity Act 2005: post-legislative scrutiny. London: The Stationary Office Limited 2014. www.publications.parliament.uk/pa/ld201314/ldselect/ldmentalcap/139/139.pdf. (Accessed 9/02/15)
2. Nicholson T, Cutter W, Hotopf M. Assessing mental capacity: the Mental Capacity Act. BMJ 2008; 336: 322
3. P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council & Another; P and Q (by their litigation friend, the Official Solicitor) v Surrey County council.  UKSC 19
4. European Convention on Human Rights (ECHR). Convention for the Protection of Human Rights and Fundamental Freedoms. 2010
5. Cairns R, Hotopf M, Owen G, Deprivation of liberty in healthcare. BMJ 2014; 348: g3390
6. Evans S. Deprivation of Liberty Newsflash – Have you changed your approach? Hempsons 2014 http://www.hempsons.co.uk/news/newsflash-deprivation-liberty-changed-approach/ (Accessed 9/02/15)
7. Health & Social Care Information Centre. Mental Health: Use of Deprivation of Liberty Safeguards continues to rise. 2013. http://www.hscic.gov.uk/article/3401/Mental-Health-Use-of-Deprivation-of-Liberty-Safeguards-continues-to-rise (Accessed 9/02/15)
8. Raymont V, Bungley W, Buchanan A, et al. Prevelance of mental incapacity in medical inpatients and associated risk factors: cross-sectional study. Lancet 2004; 364: 1421–27
9. Department of Health. Deprivation of Liberty Safeguards (DoLS). 2014. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/300106/DH_Note_re_Supreme_Court_DoLS_Judgment.pdf (Accessed 9/02/15)