The Deprivation of Liberty Safeguards (DOLS) provides a legal framework around deprivation of liberty, which was designed to prevent breaches of the European Convention of Human Rights (ECHR).1 The ECHR was drafted in 1950 by the then newly formed Council of Europe of which Britain was a founder member. The convention came into force on 3 September 1953.
The aims and ideology were to ensure that none of the atrocities of World War II were ever repeated and that all members accept the principle of the rule of law and that they are able and prepared to guarantee democracy, fundamental human rights and freedoms.2 This resulted in the establishment of the European Court of Human Rights3 to allow individuals to bring an action against a member state if it is felt that any of their convention rights have been breached.
The Mental Capacity Act 2005 came to provide the legal framework for individuals who lack the capacity to make decisions for themselves or who have capacity and wish to plan ahead for a time in the future when they may lack capacity. The Mental Capacity Act evolved from a necessity for further legislation following the infamous ‘Bournewood gap,’ which required the Government to bring safeguards in place that would prevent those short comings noted in the case (HL v UK).4
HL was an adult male who suffered from severe autism and challenging behaviour and lacked capacity to decide where he wanted to live. He lived with carers for three years after living for many years in a psychiatric hospital. Whilst at a day centre his behaviour deteriorated and he was informally admitted to hospital. He was denied contact with his carers for three months with the intention to keep him in hospital. As he was ‘compliant’ it had been asserted that he was not deprived of his liberty.
The European Court of Human Rights (ECtHR) stated he was actually deprived of his liberties and had no remedy to the basic protections offered by the Mental Health Act 1983 (to challenge detention, ie. tribunal and the restrictions on treatment). The absence of these procedural safeguards and lack of access to the court did amount to a breach of his Article 5(1) and 5(4) of the ECHR.
Consequently the UK Government decided to launch a widespread consultation about the potential consequences of ‘the Bournewood judgement’, as it became known.5 It was then decided that there might be complaints by incapacitated adults in care homes, as well as in hospitals, who could be deprived of their liberty within the meaning of the Convention. As a result of this consultation, Parliament decided to amend the Mental Capacity Act 2005 to contain the ‘Deprivation of Liberty Safeguards’. The main objective of the deprivation of liberty safeguards were intended to fill the ‘Bournewood gap’ by providing administrative and judicial safeguards for adults who may lack mental capacity and who are deprived of their liberty in care homes and hospitals. These safeguards came into force in April 2009.
The safeguards apply to people who are cared for in a hospital or registered care home.
A person must:
- Be aged 18 or over
- Have a mental disorder such as dementia or a learning disability and not be liable for detention under the Mental Health Act 1983
- Lack the capacity to consent to where their treatment and/or care is given
- Need to have their liberty taken away (within the meaning of Article 5 of the ECHR) in their best interests to protect them from harm.6
It is important to note that DOLS is in addition to the other safeguards in the MCA 2005. Decisions made and actions taken for people subject to DOLS authorisation must fulfil the requirements of the MCA.
Following an inspection across the Coventry and Warwickshire Partnership NHS Trust, the issue of DOLS was highlighted by the Care Quality Commission (CQC) Mental Health Act inspectors as a topic that required further review and had been identified as a high risk priority area by the service.
We describe the findings of an audit on the Deprivation of Liberty Safeguards carried out within the trust. The aims and objectives of the audit were:
- To ensure that patients are not being inappropriately deprived of their liberty and that deprivation is lawful. The standards are based on the Code of Practice MHA (1983) (DOH 2008), Code of Practice MCA (2005), DOLS Code of Practice supplement
- To ensure that discussions and assessments relating to DOLS have been appropriately recorded.
A proforma was designed and completed for each situation where the Mental Capacity Act applied. A separate proforma was completed where a patient had more than one of the situations applied to them eg. where a patient has had covert medication and restraint applied. The audit was undertaken over a one week period (18–24 March 2013). The sample included current informal patients admitted to two centres in the trust. The sample for centre one was taken from two old age psychiatric wards and two adult psychiatric wards.
33 patients were identified as informal patients at the time of the audit. 10 patients had no situation where the MCA had been assigned to them; therefore 23 patients were included in the audit. Of these 23 patients, three were identified with two situations that the MCA had been applied to. Therefore the results were based on 26 situations. Seven patients on the adult wards and 16 patients on the older adult wards were identified. The age range was 22–53 years and 67–90 years of age irrespectively.
The various diagnostic categories included dementia, affective disorders, obsessive compulsive disorder, schizophrenia, psychosis, substance misuse as well as autistic spectrum disorders and learning difficulties. The results for centre one showed that an assessment of the patient’s capacity was recorded in only one of the 26 situations (4%) where the MCA had been applied to them. This patient lacked capacity.
The whole purpose of the audit was to deal with the issue of Deprivation of Liberty within this patient group. However due to such a low percentage of patients who were being assessed under the MCA this did not allow us to even look at the findings in relation to DOLS applications and authorisations.
At centre two, 37 patients were identified as informal patients at the time of the audit. Of these, 26 patients had no situation where the Mental Capacity Act had been assigned to them; therefore 11 patients were included in the audit. Of these 11 patients, four were identified with two situations that the Mental Capacity Act had been applied to. Therefore results were based on 15 situations.
An assessment of the patient’s capacity were recorded in five out of the 15 situations (33%), these five patients lacked capacity. In a further 10 cases (67%) a capacity assessment should have been undertaken. The audit findings were presented to nursing, medical and management groups and a discussion took place at the in-house medical staff teaching programme.
The audit demonstrated that the overall compliance with the Mental Capacity Act was poor, which was reflected in the vast discrepancy between those patients who had a capacity assessment undertaken and those who had none. In most of the case notes on the adult wards, capacity assessments were recorded on admission only—neither time or decision specific. From our audit findings the following recommendations were made;
- To ensure that the findings of the audit is received by the Mental Health Act (MHA)/Mental Capacity Act (MCA) committee within the trust
- To ensure that the MHA/MCA committee identifies a lead person at committee level to explore and implement further training needs for all the staff involved
- To re-audit within 12 months’ time to see whether there have been any changes or improvements in practice.
Consequently, from the above one could raise the question whether the Bournewood gap had actually been ‘plugged’ as Parliament intended following the ECtHR decision. It is evident from the figures presented in this study that there is clearly a lack of understanding amongst medical and nursing staff as to when to apply the Mental Capacity Act. It does raise the question as to whether there is confusion in the Act which seems to have gone against the principle of the MCA as it was intended to bring clarity to the modern thinking of capacity as compared to the previous common law approach, which was also noted by the House of Lords Select Committee.7 If this is the case, then it goes against the notion of legal certainty, which is internationally recognised as a central requirement for the rule of law.8 However, one could argue that this may be improved by introducing a mandatory training programme for all healthcare staff on a national level.
Although there may have been some limitations with this audit as it may have only covered a specific trust, the audit however appears to have been a valuable tool in highlighting the lack of awareness and identifying the need for further training of healthcare staff on the MCA.9
The findings of this audit also coincide with the CQC fourth annual report.10 It is clear as government agencies we are failing to ensure we safeguard those individual civil liberties under Article 5 ECHR.
It was noted from the review of the CQC that some mental health hospital ward staff still did not understand the differences between the powers of the MHA and the safeguards and how to decide which legislation is the appropriate one to use. They felt it has implications for the way they are used, authorised and monitored and affects all parts of the system including hospitals, care homes, local authorities, primary care trusts and the CQC. Consequently, people in hospitals and care homes were not always treated or cared for in ways that respect their human rights— especially the right to liberty.
It is clear an assertive effort is needed from us to ensure we comply with the safeguards of the MCA. We need to understand as healthcare professionals and government agencies that we owe a duty of care to ensure we comply with all aspects of the Human Rights Act.
There is no excuse for us as health professionals not to understand the threshold of capacity as it was made clear in the case of Re: C.11 The fact that a person merely suffers from a mental illness does not automatically mean they lack capacity. Patients who have capacity (that is, who can understand, believe, retain and weigh the necessary information) can make their own decisions as to refuse treatment, even if those decisions appear irrational to us as health professionals or may place their health or life at risk.
It was mentioned by the Court of Appeal in P and Q v Surrey County Council12 that the European Court of Human Rights did make it clear that a deprivation of liberty has three elements:
• The objective element of confinement to a certain limited place for a not negligible length of time: Storck v Germany13
• The ‘additional subjective element [that] they have not validly consented to the confinement in question’: the Storck case14
• The confinement must be ‘imputable to the State’: the Storck case, ie. a public authority is directly involved.15
It was also noted by Lord Justice Wilson that mental health settings are not the same as home environments and care homes or acute hospitals settings, as they are designed for compulsory detentions under the Mental Health Act (MHA).
Health professionals will face different challenges if they admit and treat those individuals who lack the capacity to consent to being there outside of the MHA. They will then need to demonstrate that the regime for those not detained under the MHA is distinct and different to the regime for those detained under the MHA.
Otherwise it could be said that a person who lacks capacity to consent, even when they are not objecting, might be deprived of their liberty by simply being in that setting. DOLS will then need to be applied in those circumstances even when the person is not objecting if
the deprivation of liberty is in their best interests to be made lawful.
However, it is not difficult to understand the confusion that health professionals face when applying DOLS as it seems this issue has also brought confusion amongst Court of Protection Judges as seen in Cheshire West and Chester Council v P & Anor.16 Judge Baker felt that the care plan for P, a 39-year-old man with cerebral palsy and Down’s syndrome resulted in a deprivation of his liberty for the purposes of Article 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. In this case Judge Baker seems to have compared P to that of a normal person, which was later criticised by Lord Justice Munby who felt P should have been compared to a person with his disabilities when applying the objective approach.
Whether we as health professionals have acted reasonably and in the best interests of our patient is too frequently left to the interpretation of our courts and this situation is intolerable as it is vague and not informative. Therefore we would urge a national unified approach consisting:
- A single Deprivation of Liberty Safeguards Policy giving effect to the Mental Capacity Act (2005) to be administered by the CQC
- Training to all healthcare staff to improve awareness and understanding of the DOLS and of the MCA
- To ensure the same safeguards to individuals as that in the Mental Health Act, which is to introduce new checks and balances ie. tribunals/managers’ hearings that will provide patients with the opportunity to challenge their detention under the MCA
- To provide more powers to IMCAs to ensure that we as health professionals are held accountable for ensuring we fully comply with the safeguards of the MCA
- We may argue for more involvement from the medical fraternity when such cases are decided in our court
- However to deter potential criticisms of the medical profession regulating itself and take into account relevant precedents,17 we urge the CQC to avail itself of significant voices from the lay community to ensure a balanced approach.
Conflict of interest: none declared
1. The Council of Europe was founded on 5 May 1949 by the Treaty of London, Carrol Alex, Constitutional And Administrative Law, page 343-353, Pearson, Second Edition, 2002
2. Article 1(a) of the Statute states “The aim of the Council of Europe”, http://www.ehu.es/ceinik/tratados/1TRATADOSSOBREORGANIZACIONESINTERNACIONALES/16TratadosdeOrganizacionesInternacionalesRegionales/OI163ING.pdf
3. The Court was established on the 21 January 1959 on the basis of Article 19 of the European Convention on Human Rights, http://people.unica.it/iphumanrights/files/2013/06/ERHR-Kirsch-2013-06-03.pdf (accessed 19/11/14)
4. HL v UK 45508/99 (2004) ECHR 471, http://www.bailii.org/eu/cases/ECHR/2004/471.html (accessed 19/11/14)
5. Department of Health, ‘“Bournewood” Consultation: The approach to be taken in response to the judgment of the European Court of Human Rights in the Bournewood” case ‘ (Gateway Ref 267902 2005); Department of Health, Protecting the Vulnerable: the “Bournewood” Consultation (London 2006)
6. Mental Capacity Act 2005: Deprivation of liberty safeguards - Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice, http:/www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_085476 Published 26th August 2008
7. HOUSE OF LORDS, MENTAL CAPACITY ACT 2005 SELECT COMMITTEE, Oral and written evidence – Volume 1 (A–K), 2nd September 2013
8. Albert Venn AV. Dicey (4 February 1835—7 April 1922) was a British jurist and constitutional theorist, Carrol Alex, Constitutional And Administrative Law, page 40-44, Pearson, Second Edition, 2002 /CQC warns lack of understanding of Mental Capacity Act, 28 March, 2013 | By The Press Association
9. Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2012/13, Care Quality Commission 4th Annual Report, 16th January 2014
10. Re C (Adult, refusal of treatment)  1 All ER 819, The right of a competent adult to refuse medical treatment/The principle that mental illness does not automatically call a patient’s capacity into question.
11. http://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_common_law.asp (accessed 19/11/14)
12. EWCA Civ 190; , http://www.bailii.org/ew/cases/EWCA/Civ/2011/190.html (accessed 19/11/14)
13. (2005) 43 EHRR 96 at , http://www.mentalhealthlaw.co.uk/Re_P_and_Q;_P_and_Q_v_Surrey_County_Council;_sub_nom_Re_MIG_and_MEG_(2011)_EWCA_Civ_190 (accessed 19/11/14)
14. also at  http://www.mentalhealthlaw.co.uk/Re_P_and_Q;_P_and_Q_v_Surrey_County_Council;_sub_nom_Re_MIG_and_MEG_(2011)_EWCA_Civ_190 (accessed 19/11/14)
15.1at  http://www.mentalhealthlaw.co.uk/Re_P_and_Q;_P_and_Q_v_Surrey_County_Council;_sub_nom_Re_MIG_and_MEG_(2011)_EWCA_Civ_190
16.  EWHC 1330 (Fam), http://www.bailii.org/ew/cases/EWHC/COP/2011/1330.html (accessed 19/11/14)
17. Bolam v Friern Hospital Management Committee  2 All ER 118, 276, 282-288, Cooke John, Law of Tort, Pearson, 7th Edition, 2005