A Supreme Court ruling in March has led to many more patients being protected under the Mental Health Capacity Act deprivation of liberty safeguards (DoLS), which has, in turn, meant an increase in the number of assessments of vulnerable patients in care homes.
DoLs are carried out to ensure that a person is not unlawfully detained, and if a care home wants to deprive a patient of their liberty – by limiting where they can go, or what they can do – it must get any such restrictions approved by the local authority.
The Supreme Court’s judgment has now set out the test of when DoLS must be applied: is the patient under constant supervision; if they tried to leave, would someone stop them? If the answer is yes, you need a DoLS authorisation for that person. Previous considerations, such as whether the person was objecting to their confinement and how frequently they went out of their care setting, are no longer to be taken into account.
In the case of a care home, this is likely to include, at a minimum, all people suffering from dementia. Care providers don’t have to know exactly what does and does not come under the definition of ‘deprivation of liberty’, they just need to know when a person might be deprived of their liberty and take action.
A Department of Health note on the judgement advises that relevant staff should:
- Become familiar with the Mental capacity Act, particularly the “least restrictive” principle
- Be aware of issues of restrictions and restraint when designing and implementing care plans, to ensure people are not being deprived of liberty
- Review existing care plans for people lacking capacity to determine if there is a deprivation of liberty (following the revised test supplied by the Supreme Court)
- If a potential deprivation of liberty is identified, explore less restrictive ways of providing care
- Gain authorisation in any case where deprivation of liberty is unavoidable.
Effectively, this means that you must apply the new test immediately for new residents, and review all previous residents using the new test. This will probably lead to you applying for authorisation in many more cases.
Once you have applied for authority, you might have a longer wait than usual, as the new rules are causing a backlog with local authorities (as mentioned in this Guardian article)
In The legal and practical effects of the Cheshire West case for care home providers (Apr 2014) Neil Grant & Joanna Dirmikis recommend that:
If no authorisation is in place you will have no defence against a claim for unlawful detention and you should also be aware that there is no time limit in respect of cases involving claimants who lack capacity as the Limitation Act does not apply to those cases. So whilst this may be a very time-consuming exercise for providers and their staff, it is wise to spend a bit of extra time and money on this problem at this stage rather than risk being caught ought later and having claims made against you further on down the line. Once the application has been made to the local authority, it will then be for the local authority to make the decision on whether the deprivation of liberty is in the person’s best interest. The problem will have been taken out of your hands.