In a move that will be welcomed by many doctors, the British Medical Association (BMA) has published guidance to assist doctors in assessing whether a vulnerable person is being deprived of his/her liberty. The guidance can be found on bma.org.uk.
The Deprivation of Liberty Safeguards (DoLS) were introduced in 2009. Their purpose is to protect the rights of people who lack capacity to consent to their care arrangements by providing a procedure to review and, where appropriate, authorise any deprivations of liberty arising out of those arrangements.
The Supreme Court judgment in Cheshire West (P -v- Cheshire West and Chester Council; P and Q -v- Surrey County Council) clarified the ‘acid test’ for determining whether a deprivation of liberty exists:
Is the individual receiving care:
- Unable to consent to their care arrangements; and
- Under continuous supervision and control; and
- Not free to leave.
The Supreme Court held, contrary to previous rulings, that it was not appropriate to consider whether the care arrangements were ‘normal’ for a patient or whether or not the patient appeared happy with the care arrangements.
As a result of Cheshire West there has been a dramatic increase in the number of adults deemed to be deprived of their liberty and for which DoLS authorisation is now required.
The aims of the guidance
The BMA’s guidance is designed to help health professionals identify when individuals in their care may be deprived of their liberty, thus requiring an application for authorisation under DoLS.
The brief, practical guidance reassures health professionals that:
- Even if care or treatment amounts to a deprivation of liberty this does not mean it is inappropriate.
- An authorisation under DoLS does not provide legal authority for the treatment itself but instead authorises the arrangements that are put in place for provision of that care.
- Professionals must act in the best interests of their patients at all times.
The guidance is tailored specifically to doctors working in care homes, hospitals and hospices, with a section addressing each of those environments. Each section contains a range of scenarios where DoLS may apply. For example, the section dedicated to hospital care sets out factors which may indicate the existence of a deprivation of liberty during conveyance to hospital or for patients in ICU.
The BMA’s guidance is a useful starting point for health professionals, acting as a prompt to help them identify the factors that are likely to be relevant when making an assessment. However it recognises that it is limited in its scope due to the complexities of mental health law. It does not, for example, address the specific question of deprivations of liberty arising in:
- psychiatric settings;
- a patient’s own home; or
- care arrangements for those under the age of 18.
The guidance makes repeated references to the Law Society guidance issued earlier in 2015 to which practitioners are referred to for further detail on the topic.
The prompt identification and authorisation of a deprivation of liberty is key for avoiding criticisms, complaints and claims, as well as for meeting the requirements of good clinical standards. Practitioners and their organisations will no doubt be aware that adherence with the law and guidance in this area is now monitored as part of the CQC inspection regime.