Mental capacity and deprivation of liberty are pertinent issues in acute hospitals, particularly within the brain injury population where cognition for decision making capacity is often severely affected by acute stroke or trauma.

The current MCA and DoLS processes are useful tools to assist clinicians in thinking about the complex issues and to safeguard patients and their human rights.

Assessing capacity in the acute clinical setting for patients with highly complex needs continue to be a challenge when faced with uncertainties whether the patient has capacity to understand the risks associated with serious medical decisions. The strategy should be to take on a more person-centred approach and heed the advice of Peter Jackson J that “unpalatable dilemmas- for eg indecision, avoidance or vacillation – are not to be confused with incapacity” (Re JB [2014] EWHC 342 (CoP)), and that where there are serious identified risks, the courts, rather than the public authorities, should decide outcomes (Re M [2013] EWHC 3456 (COP)).

However, often there is a lack of expertise and limited resources for managing these issues within the acute setting. Therefore, at times, added processes and paperwork may add considerable burden and delay acute procedures and plans.

Due to the limited resources, there is a “disconnect” between the process of making DoLS applications and the local authorities who are responsible for determining their appropriateness.

Putting in too many safeguards without the necessary amount of resources can  sometimes leave the clinicians feeling lost and doubting their clinical judgement in determining what is in the patient's best interest.

Although we welcome the recent Supreme Court judgment in Cheshire West, we consider it vital to that the Department and Health and the NHS provide additional resources to address the implications for the judgment for the additional numbers of patients who will be brought within the scope of the DoLS process, and also to support the MCA more generally.

Dr Edgar Chan, Neuropsychologist
Betsey Lau-Robinson, Trust Lead for Safeguarding

& the Mental Capacity Act,
University College London Hospital Foundation