Following the decision of the Court of Appeal in the MIG and MEG (now P and Q) case, the DH has published guidance on the implications of recent case law on Deprivation of Liberty Safeguards (DOLS).

The guidance suggests that the P and Q judgment stated that for patients in a hospital, “a person who lacks capacity to consent for himself, even when they are not objecting (unlike those settings where there is a relative normality to the living arrangements) is likely to be deprived of his liberty by simply being in that setting.”

This is not the case. The judgment did not say this, although it did identify that there is a continuum that runs between restriction and deprivation and it is important to identify where on the scale a particular instance falls: “even when the person lives in an institution rather than in a family home, there is a wide spectrum between the small children’s home or nursing home, on the one hand, and a hospital designed for compulsory detentions like Bournewood; and it is in my view necessary to place each case along it.”

Each case should still be considered on its own merits and the facts relevant to it. There should be no automatic assumption that because a patient is, for example informally admitted to a hospital that cares for detained patients, they have been deprived of their liberty and a DOLS application must be made.

Please see the Healthcare Resource Centre if you need further information on DOLS issues, in particular we would refer you to the “decision making – consent, MCA and DOLS” section under which you will find “Is there a deprivation of liberty? A guidance and assessment tool”.