Practice question

When do I need to consider requesting a Deprivation of Liberty Safeguards authorisation?

Situations often arise in care settings, particularly those that support older adults, when individuals lack capacity to make decisions about their care or treatment. The Deprivation of Liberty Safeguards (DoLS) is the legal procedure in place when it is necessary to deprive of their liberty a resident or patient who lacks capacity to consent to their care and treatment to keep them safe from harm.

Situations often arise in care settings, particularly those that support older adults, when individuals lack capacity to make decisions about their care or treatment. The Deprivation of Liberty Safeguards (DoLS) is the legal procedure in place when it is necessary to deprive of their liberty a resident or patient who lacks capacity to consent to their care and treatment to keep them safe from harm.

Section 4 of the Nursing and Midwifery Council (2015) code reminds practitioners to act in the best interests of people at all times:

‘To achieve this, you must: 4.3 keep to all relevant laws about mental capacity that apply in the country in which you are practising, and make sure that the rights and best interests of those who lack capacity are still at the centre of the decision-making process.’

Widespread criticism about how the Mental Capacity Act (MCA) 2005 and DoLS are being implemented and used in practice, particularly in healthcare settings, resulted in the House of Lords select committee reporting that the act ‘suffered from a lack of awareness and a lack of understanding’.

Understanding and keeping to the law in practice can be difficult, especially when different interpretations and judgements occur. In March 2014, the Supreme Court handed down judgement in two cases, since known as ‘Cheshire West’, which has led to a significant increase in the number of people considered to be ‘deprived’ of their liberty who were receiving care and treatment in hospitals and care homes.

The acid test applied by the courts to see if a person is being deprived of their liberty consists of two questions:

Is the person subject to continuous supervision and control?

Is the person free to leave? The focus is on not whether the person seems to be wanting to leave but on how those supporting them would react if they did want to leave.

Each case must be considered on its own. However, if the following features are present, it would make sense to consider a DoLS authorisation:

Frequent use of sedation/medication to control behaviour.

Regular use of physical restraint to control behaviour.

The person concerned objects verbally or physically to the restriction and/or restraint.

Objections to the restriction or restraint from family and/or friends.

The person is confined to a particular part of the establishment in which they are being cared for.

The placement is potentially unstable.

Possible challenge to the restriction and restraint being proposed to the Court of Protection or the Ombudsman, or a letter of complaint or a solicitor’s letter.

The person is already subject to a DoLS authorisation that is about to expire.

The DoLS can only be used if a person is in hospital or a care home. If a person is living in another setting, including in supported living or their own home, it is still possible to deprive them of their liberty in their best interests, through an application to the Court of Protection.

In addition to any formal education and training on the MCA and DoLS, there are numerous resources available to support care staff develop best practice in this complex area. For example, the Law Society (2015) has published guidance for staff in a range of healthcare settings on how to identify a deprivation of liberty.

NHS Protect (2013) provides guidance on the prevention and management of clinically related challenging behaviour in NHS settings, which can often lead to staff requesting a DoLS authorisation.

The Social Care Institute for Excellence (2015) MCA directory aims to raise awareness about the MCA, including the DoLS. It contains useful information and various tools to help understand or implement it.

Picture credit: Alamy

Court of Protection judgements for England and Wales can be found on the BAILII website at www.bailii.org/ew/cases/EWHC/COP which includes cases to decide whether a person is being deprived of their liberty.

It is crucial that all nurses ensure they understand and apply the five principles of the MCA in their daily practice: presumption of capacity, individuals being supported to make their own decisions, unwise decisions, best interests, and less restrictive option. They must know how to assess capacity and identify what additional aspects of care and treatment are present that mean they should consider a DoLS authorisation.

Nurses do not have to be experts about what is and is not a deprivation of liberty. They just need to know when a person might be deprived of their liberty and then take appropriate action.


References

Law Society (2015) Identifying a Deprivation of Liberty: A Practical Guide. Law Society, London.
NHS Protect (2013) Meeting Needs and Reducing Distress. Guidance on the Prevention and Management of Clinically Related Challenging Behaviour in NHS Settings. tinyurl.com/ptces8t (Last accessed: September 2 2015.)
Nursing and Midwifery Council (2015) The Code: Professional Standards of Practice and Behaviour for Nurses and Midwives. NMC, London.
Social Care Institute for Excellence (2015) Mental Capacity Act (MCA) Directory. www.scie.org.uk/mca-directory (Last accessed: September 2 2015.)

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