Deprivation of Liberty: Applying the decision in the Cheshire West case in an Acute Hospital Trust setting: incapacitated, compliant patients in hospital
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:
- Have an impairment of, or a disturbance in the functioning of, the mind or brain and
- Lack capacity to consent to the arrangements for their care or treatment. Lack of capacity cannot be established merely by reference to a person's age, appearance, condition etc.
An 'acid test' has been introduced to assess whether a person who lacks capacity is deprived of their liberty, namely:
- Whether they are subject to continuous supervision and control; and
- Not free to leave.
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:
- All patients who may lack the requisite capacity will need to be assessed to determine whether they do lack the requisite capacity and if so whether their care regime now amounts to a deprivation of liberty in line with the new test.
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:
- Undertake an urgent review of current inpatients who may lack the requisite capacity to determine whether they do lack capacity and if so whether they are being deprived of their liberty. In particular remembering that those who are not objecting to admission will also need to be assessed as their compliance is no longer relevant to the assessment of whether they are deprived of their liberty;
- Prioritise patient cohorts for review such as elderly care, neurology and trauma and orthopaedics being the most at risk groups;
- Prioritise DTOC and long stay patients (over 7 days in hospital);
- Identify a less restrictive arrangement in each individual case where possible to avoid a DoL;
- Where a possible DoL is identified, take steps to get this authorised, by making an application for a standard authorisation, and where necessary by making an urgent authorisation for DoL (pending a standard authorisation being determined);
- Where the MHA may need to be used, seek a MHA assessment and consider the use of the MHA emergency powers (such as s.5(2)) pending the outcome of the assessment;
- Where neither the MHA nor a DoLs authorisation can be used to authorise the possible deprivation, seek advice;
- Anticipate making applications for DOLs at the pre-admission assessment for elective procedures which involve a hospital stay where the patient is assessed as lacking capacity to consent to the proposed care regime;
- Review admission procedures and ensure robust assessments of capacity (focused on the requisite decision) are being undertaken upon admission to hospital and reviewed regularly during admission;
- Review consent forms;
- Review internal DoL policies and procedures and update them in accordance with the Cheshire West Decision;
- Provide updated training to staff.
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.