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Published 28 April 2014
The recent decision of the Supreme Court in the Cheshire West case has redefined the legal test for a Deprivation of Liberty (DoL) and who should be subject to the DoL Safeguards under the Mental Capacity Act (MCA DoLS). The fact that an incapacitated patient is compliant with being in hospital and their care regime is no longer relevant to the assessment of whether they are deprived of their liberty. This means that for hospital Trusts there are now likely to be a greater number of patients in hospital who are so deprived and who will need to be authorised under MCA DoLS (or otherwise).
It is important that for a person to lack capacity they must:
An 'acid test' has been introduced to assess whether a person who lacks capacity is deprived of their liberty, namely:
Hospitals have to date been seeking MCA DoLS authorisations for incapacitated patients where there is some evidence that the person is objecting to admission and/or treatment and a DoL is likely or exists. The Decision means that MCA DoLS should be considered for all incapacitated patients, whether compliant or non-compliant with their care regime where this test is met.
DoL may cause particular difficulties for patients under 18 as they cannot be subject to the MCA DoLS. Where a DoL is likely or exists in hospital relating to a child, a Court application may be required in order to authorise a DoL or a Mental Health Act assessment undertaken (if appropriate).
Hospital Trusts will need to consider:
Wherever possible a less restrictive regime should be initiated, to avoid any deprivation occurring. Where this is not possible the deprivation must be legally authorised.
A failure to seek appropriate authorisation when a patient is deprived of their liberty is unlawful and will infringe Article 5 ECHR, right to liberty and may result in a claim under the Human Rights Act 1998 or criticism/enforcement by the regulator or others.
There are a number of practical steps that acute Hospital Trusts can take to assist in identifying those patients who are DoL and the steps required to address this:
Whether a person is being deprived of their liberty should be considered on a case by case basis. The location of the person in the hospital or the fact they may be unconscious are not of themselves determinative of a deprivation of liberty and the care regime of each incapacitated patient needs to be assessed as to whether it amounts to a deprivation of liberty. There remains uncertainty surrounding the application of the Deprivation of Liberty Safeguards regime following the Cheshire West decision; revised DH Safeguards are not expected until Summer 2014.
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