Department of Health Guidance following Cheshire West - March 2014
Published 31 March 2014
The Department of Health has issued guidance for health and social care organisations following the Supreme Court's judgment in the Cheshire West case.
The guidance is intended to assist health and social care organisations to continue to comply with the law following the revised test for what constitutes a deprivation of liberty as set out in Lady Hale's judgment.
The guidance seeks to remind health and social care professionals of the existing procedures under the Mental Capacity Act 2005 for identifying and authorising a DOL, but also highlights key points arising from the Supreme Court's decision and 'suggested actions' following the judgment.
The guidance sets out the following list of "suggested actions" to be taken:
- Staff should familiarise themselves with the provisions of the Mental Capacity Act 2005, in particular the five principles and specifically the 'least restrictive' principle.
- When designing and implementing new care and treatment plans for individuals lacking capacity, staff should be alert to any restrictions and restraint, which may be of a degree or intensity that mean an individual is being, or is likely to be, deprived of their liberty.
- Staff should take steps to review existing care and treatment plans for individuals lacking capacity in order to determine whether there is a DOL.
- Where a potential DOL is identified, a full exploration of the alternative ways of providing the care and/or treatment should be undertaken, in order to identify any less restrictive ways of providing that care which will avoid a DOL.
- Where the care/treatment plan for an individual lacking capacity will unavoidably result in a DOL judged to be in that persons best interests, this must be authorised.
Further guidance is given by the DH on the procedures for seeking authorisation when a DOL is identified.
Implications for health and social care
Both NHS bodies and local authorities will need to develop a strategy for identifying which individuals in their care may currently be deprived of their liberty unlawfully.
Information and training
This will need to be made available to all relevant staff as soon as possible so that they are aware of what now constitutes a DOL and the steps that should be taken to authorise this.
Whilst documentation of capacity assessments is already key, it will become increasingly important for organisations to be able to evidence this has taken place as a failure to correctly assess and obtain valid consent to the arrangements in question may well constitute an unlawful DOL.
The guidance suggests local authorities "review their allocation of resources in light of the revised test to ensure they meet their legal responsibilities".
Treatment for mental disorder in hospital
Prior to the judgement, NHS bodies routinely admitted incapacitated compliant patients to hospital 'informally' (that is, without detaining them under the Mental Health Act) for treatment for mental disorder. The effect of the judgment is to make this unlawful and therefore all patients in this category should now either be detained under the Mental Health Act (where the relevant criteria are met) or subject to the DOLs regime.
This initial early guidance on the implications of the Cheshire West decision is helpful both in terms of clarifying the ways in which a DOL should be authorised and in reminding health and social care organisations of the need to ensure an individual's care regime adheres to the least restrictive principle. In doing so, it encourages organisations to think of alternative ways of meeting an individual's care/treatment needs, thereby ensuring that any DOL is absolutely necessary in the context of providing care/treatment in an individual's best interests.
However, the guidance does not seek to narrow the revised test in any way and makes clear that the implications of the Supreme Court judgment could be far-reaching in terms of the numbers of individuals who are now potentially being deprived of their liberty. It is clear that the onus is on health and social care providers to assess and evaluate the care arrangements for individuals within their care as soon as possible, and to take action to authorise any DOL identified as a result.
There are no current plans for the government to amend the DOLS regime; however the DH has confirmed its response to the House of Lords Select Committee report into MCA and DOLs can be expected by the summer.
How we can help
- Training: To provide professionals with the necessary understanding to implement the DOLS and understand how they interact with other frameworks such as the MHA and safeguarding;
- Policy review/guidance: To ensure your organisation is compliant with current requirements;
- Case specific input: Fast practical advice when dealing with the complexities of specific cases where deprivation of liberty may be an issue;
- Legal representation: In cases where an application to the Court of Protection is necessary, or in response to proceedings brought by other parties;
- Working with you: To remind relevant members of staff of their obligations following the Supreme Court's judgment, in light of the criticisms of the DOLs regime contained within the Select Committee report.