Is a DoL really needed when POA already gives clear instructions?

[LynneMcV]

I'm sitting here trying to get my head around Deprivation of Liberty and not making a very good job of it.

While visiting the hospital my husband was admitted to Monday night I was told that he had been spoken to Tuesday (first day) and seemed to not understand why he is in hospital or what his current medication is for. Apparently the council has now been approached about Deprivation of Liberty.

I am a little confused by this. I too spoke to my husband the same day (first full day on the secure dementia ward) and he is well aware he has dementia and, while he may not know the names of the medications he is on any more (and relies on me to adminster them) he is well aware that they are for treating his dementia and has never refused to take them. He does not understand exactly where he is (hospital) but understands that his medication needs to be looked at to see if improvements to his well-being can be made. He agrees with this.

That aside, I also have POA over health and welfare and have no problem agreeing to my husband's meds to be revised where necessary and investigations to be carried out to see if anything else is going on to cause the recent escalation in paranoia.

I don't really see why a DOL would be necessary if I have PoA clearly outlining my husband's wishes. I am quite scared of the thought that my husband could be deprived of his liberty for a very long time. I am also determined to have him back home with us asap once on the right meds.

It does not rest easy with me that despite having PoA somebody else could potentially call all the shots and deprive him from liberty go months on end.

Is a DOL actually necessary when a POA is in place. I am frightened that it will keep him from liberty longer than necessary, stop me from being able to walk with him in the hospital grounds when he is stable - and terrified that he will be pushed towards a care home when my sole aim is to get him home with us (though I suppose I could fight any move to a care home on the basis that I also have POA for finance and property.

I am feeling a little panicky because the DoL email was sent to the council in the late afternoon which means council will be in touch soon and I am not sure where I stand.

I would have thought that a section 2 (up to 28 days)would be more appropriate than a DoL, which can last a year (if I understand things).

Is a DOL usually taken out if advanced wishes are already clearly set out in the PoA?

.

 

[Kevinl]

Hi Lynne
I posted on your last thread when your OH was taken in so I do understand.
There's a link to DoLS below which you really need to read and it's a DoLS you've missed the "S" off the end which stands for Safeguards. It's not just a question of depriving someone of their liberty it is to safeguard them both from themselves and others who they might harm.
To be honest a DoLS is about the least they can do otherwise legally he can just walk out of the place and should they try to stop him they could be accused of false imprisonment:
"False imprisonment is the unlawful restraint of a person against her will by someone without legal authority or justification. ... Even the police may be charged with false imprisonment if they exceed their authority " this does not give the unit he's in the right to keep him there against his wishes if he wants to leave so could be a crime.
They need the DoLS or he could just walk out and get a bus home and turn up on the doorstep a POA doesn't give anyone the right to hold someone against their will it gives you the say over his health and finance not if he's safe to be on the streets.
In the first couple of weeks while my wife was in the secure unit no one would say that much to me, once the assessment were over it's been 2 meeting with a consultant, one psychologist and the occupational therapist always has a chat. The staff have kept me fully informed about medication changes and I've been kept up to date with how they think she is that day, what more could you ask for?
I think (and it may just be me) that if they used a section 2 (28 days) then either they have to keep renewing it or go section 3 (6 months then each year), but if they want to put you in a home and you're under a section 3 then the NHS has to pick up all the costs under section 117, if you go into care from a DoLS or a section 2 the usual rules apply, self funding and all the rest so using DoLS could be a cost saver, like I say it may just be me being suspicious of why they're using DoLS.
K


https://www.alzheimers.org.uk/site/scripts/documents_info.php?documentID=1327

 

[Beate]

A DOLS is standard these days in hospitals and care homes so honestly don't worry about it. They have to make sure that they are legally allowed to hold someone without capacity in order to treat or look after them.
My OH was put under DOLS in hospital without me being aware, I got a letter about it after he was discharged! It has absolutely nothing to do with POA.

 

[chrissie121]

Dol

I'm sitting here trying to get my head around Deprivation of Liberty and not making a very good job of it.

While visiting the hospital my husband was admitted to Monday night I was told that he had been spoken to Tuesday (first day) and seemed to not understand why he is in hospital or what his current medication is for. Apparently the council has now been approached about Deprivation of Liberty.

I am a little confused by this. I too spoke to my husband the same day (first full day on the secure dementia ward) and he is well aware he has dementia and, while he may not know the names of the medications he is on any more (and relies on me to adminster them) he is well aware that they are for treating his dementia and has never refused to take them. He does not understand exactly where he is (hospital) but understands that his medication needs to be looked at to see if improvements to his well-being can be made. He agrees with this.

That aside, I also have POA over health and welfare and have no problem agreeing to my husband's meds to be revised where necessary and investigations to be carried out to see if anything else is going on to cause the recent escalation in paranoia.

I don't really see why a DOL would be necessary if I have PoA clearly outlining my husband's wishes. I am quite scared of the thought that my husband could be deprived of his liberty for a very long time. I am also determined to have him back home with us asap once on the right meds.

It does not rest easy with me that despite having LoA somebody else could potentially call all the shots and deprive him from liberty go months on end.

Is a DOL actually necessary when a POA is in place. I am frightened that it will keep him from Liberty longer than necessary, stop me from being able to walk with him in the hospital ground when he is stable - and terrified that he will be pushed towards a care home when my sole aim is to get him home with us (though I suppose I could fight any move to a care home on three basis that I also have POA for finance and property.

I am feeling a little panicky because the DoL email was sent to the council in the late afternoon which means council will be in touch soon and I am not sure where I stand.

I would have thought that a section 2 (up to 28 days)would be more appropriate than a DoL, which can last a year (if I understand things).

Is a DOL usually taken out if advanced wishes are already clearly set out in the PoA?

.

Hi there.

Read the below: this is taken from the DOL website and you can find more information there as well as on this website.

In effect the DOL team assess your husband to see if he does need to go into care and, if so, for how long. it also means they are safeguarding him so that you or anyone else cannot put him into care without his consent. it really is to safeguard him more than you perhaps think it is taking away your right to make the judgement about his care for him, if you get my drift. Please read the below as it does really explain the process but in way does it take anyway your rights, its more to protect his rights.
The Deprivation of Liberty Safeguards (DoLS) are part of the Mental Capacity Act 2005. They aim to make sure that people in care homes, hospitals and supported living are looked after in a way that does not inappropriately restrict their freedom. The safeguards should ensure that a care home, hospital or supported living arrangement only deprives someone of their liberty in a safe and correct way, and that this is only done when it is in the best interests of the person and there is no other way to look after them.

This factsheet looks at who is affected by DoLS, explains what the safeguards are, and outlines the process for getting authorisation for a deprivation of liberty and how to get it reviewed.

DoLS apply in England and Wales, but Northern Ireland (which does not have a mental capacity act) has no such system in place.

Who is affected?
The safeguards apply to vulnerable people aged 18 or over who have a mental health condition (this includes dementia), who are in hospitals, care homes and supported living, and who do not have the mental capacity (ability) to make decisions about their care or treatment.

The Mental Capacity Act says that someone who lacks mental capacity cannot do one or more of the following four things:

understand information given to them
retain that information long enough to be able to make a decision
weigh up the information available and understand the consequences of the decision
communicate their decision - this could be by any possible means, such as talking, using sign language or even simple muscle movements like blinking an eye or squeezing a hand.
A deprivation of liberty authorisation cannot be used if a person has the mental capacity to make decisions, so the person's capacity will be assessed as part of the process. For more information about mental capacity, see factsheet 460, Mental Capacity Act 2005.

The safeguards do not apply when someone is detained ('sectioned') under the Mental Health Act 1983. (See factsheet 459, The Mental Health Act 1983 and guardianship, for information about this act.)

What are the safeguards?
Those planning care should always consider all options, which may or may not involve restricting the person's freedom, and should provide care in the least restrictive way possible. However, if all alternatives have been explored and the hospital, care home or local authority administrating the supported living arrangements believes it is necessary to deprive a person of their liberty in order to care for them safely, then they must get permission to do this by following strict processes. These processes are the Deprivation of Liberty Safeguards, and they have been designed to ensure that a person's loss of liberty is lawful and that they are protected.

The key elements of the safeguards are:

to provide the person with a representative
to give the person (or their representative) the right to challenge a deprivation of liberty through the Court of Protection (see 'Useful organisations')
to provide a mechanism for deprivation of liberty to be reviewed and monitored regularly.
What is deprivation of liberty?
A recent court decision has provided a definition of what is meant by the term 'deprivation of liberty'. A deprivation of liberty occurs when 'the person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements'.

It can be helpful to think of restrictions of a person's activity as being on a scale, from minimum restrictions at one end to the more extreme restrictions - deprivations of liberty - at the other end. One large restriction could in itself be a deprivation of liberty (such as sedating a person for non-medical reasons) or many small restrictions could combine to create a deprivation of liberty. It is the amount of control that the care home or hospital has over the person that determines whether the person is being deprived of their liberty.

There have been several test cases in the European Court of Human Rights and in the UK that have clarified which situations may constitute a deprivation of liberty:

a patient being restrained in order to admit them to hospital
medication being given against a person's will
staff having complete control over a patient's care or movements for a long period
staff making all decisions about a patient, including choices about assessments, treatment and visitors
staff deciding whether a patient can be released into the care of others or to live elsewhere
staff refusing to discharge a person into the care of others

 

[LynneMcV]

Thanks Kevini and Beate for your sensible words.

I think the stress of the past few weeks and lack of sleep the past couple of days was making me be silly and irrational when I posted in the early hours.

Of course they need to make sure that my husband can't just swan off before they have finished helping him. Everything gone through so far, leading to the current situation would be useless if he just came back home no better than when he went in.

I was just looking at it from the point of view that he has no objection to his medication being changed to help him get better and the PoA allows me to confirm that choice for him anyway.

I feel quite daft now in the cold light of day. The thought of him being in a unit for weeks on end in a place where he feels so on edge (In the presence of some displaying levels of dementia greater than his own) has been blinding my judgement.

The tears have finally started to come as I am typing this. I haven't shed tears over this disease in years, just got on with it.

I'll put my own paranoid thoughts aside about him being fast tracked for a care home. Of course they want him home as much as I do. Everything today is geared towards keeping people at home if they can and this is no different.

I'll take the time to sort myself out and get my life back on track. Yesterday I stayed five hours with him during visiting hours and he remained tense the whole time. Nobody else was visiting their loved ones for that amount of time in one go.

I am allowed to phone and talk to him as much as I like. I don't need to sit with him the whole time. Besides, it wouldn't be sustainable for weeks on end anyway, I would end up in hospital myself.

After this week I need to get back to working (even if just part time) and draw up regular visiting and contact arrangements that will allow me to have a more balanced existence while he is being treated.

I miss our walks but maybe the unit has a secure area we can walk or just be outside. I haven't even asked yet.

Thanks for your sensible guidance. I must stop my heart ruling my head and do what is right for my husband.

Sorry for being so short-sighted before xcc

 

[LynneMcV]

Hi there.

Read the below: this is taken from the DOL website and you can find more information there as well as on this website.

In effect the DOL team assess your husband to see if he does need to go into care and, if so, for how long. it also means they are safeguarding him so that you or anyone else cannot put him into care without his consent. it really is to safeguard him more than you perhaps think it is taking away your right to make the judgement about his care for him, if you get my drift. Please read the below as it does really explain the process but in way does it take anyway your rights, its more to protect his rights.
The Deprivation of Liberty Safeguards (DoLS) are part of the Mental Capacity Act 2005. They aim to make sure that people in care homes, hospitals and supported living are looked after in a way that does not inappropriately restrict their freedom. The safeguards should ensure that a care home, hospital or supported living arrangement only deprives someone of their liberty in a safe and correct way, and that this is only done when it is in the best interests of the person and there is no other way to look after them.

This factsheet looks at who is affected by DoLS, explains what the safeguards are, and outlines the process for getting authorisation for a deprivation of liberty and how to get it reviewed.

DoLS apply in England and Wales, but Northern Ireland (which does not have a mental capacity act) has no such system in place.

Who is affected?
The safeguards apply to vulnerable people aged 18 or over who have a mental health condition (this includes dementia), who are in hospitals, care homes and supported living, and who do not have the mental capacity (ability) to make decisions about their care or treatment.

The Mental Capacity Act says that someone who lacks mental capacity cannot do one or more of the following four things:

understand information given to them
retain that information long enough to be able to make a decision
weigh up the information available and understand the consequences of the decision
communicate their decision - this could be by any possible means, such as talking, using sign language or even simple muscle movements like blinking an eye or squeezing a hand.
A deprivation of liberty authorisation cannot be used if a person has the mental capacity to make decisions, so the person's capacity will be assessed as part of the process. For more information about mental capacity, see factsheet 460, Mental Capacity Act 2005.

The safeguards do not apply when someone is detained ('sectioned') under the Mental Health Act 1983. (See factsheet 459, The Mental Health Act 1983 and guardianship, for information about this act.)

What are the safeguards?
Those planning care should always consider all options, which may or may not involve restricting the person's freedom, and should provide care in the least restrictive way possible. However, if all alternatives have been explored and the hospital, care home or local authority administrating the supported living arrangements believes it is necessary to deprive a person of their liberty in order to care for them safely, then they must get permission to do this by following strict processes. These processes are the Deprivation of Liberty Safeguards, and they have been designed to ensure that a person's loss of liberty is lawful and that they are protected.

The key elements of the safeguards are:

to provide the person with a representative
to give the person (or their representative) the right to challenge a deprivation of liberty through the Court of Protection (see 'Useful organisations')
to provide a mechanism for deprivation of liberty to be reviewed and monitored regularly.
What is deprivation of liberty?
A recent court decision has provided a definition of what is meant by the term 'deprivation of liberty'. A deprivation of liberty occurs when 'the person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements'.

It can be helpful to think of restrictions of a person's activity as being on a scale, from minimum restrictions at one end to the more extreme restrictions - deprivations of liberty - at the other end. One large restriction could in itself be a deprivation of liberty (such as sedating a person for non-medical reasons) or many small restrictions could combine to create a deprivation of liberty. It is the amount of control that the care home or hospital has over the person that determines whether the person is being deprived of their liberty.

There have been several test cases in the European Court of Human Rights and in the UK that have clarified which situations may constitute a deprivation of liberty:

a patient being restrained in order to admit them to hospital
medication being given against a person's will
staff having complete control over a patient's care or movements for a long period
staff making all decisions about a patient, including choices about assessments, treatment and visitors
staff deciding whether a patient can be released into the care of others or to live elsewhere
staff refusing to discharge a person into the care of others

Thank you Chrissie, that's very useful xxxx

 

[tigerlady]

When my husband was sectioned, he didnt have a DoLS until the 28 days were up, and then I was told it had been put in place to enable him to be kept at the assessment unit until such time when he could be discharged. Maybe the hospital is just making the first moves so that it is implemented when the Section time runs out, so they can legally keep your husband in hospital for longer if they havent managed to find the right medication for him.

He is in a care home now, still has a DoLS, as do most of the residents. I am his personal representative. It does not prevent me from taking him out, which I do quite regularly. The DoLs enables the carers to put him in safehold to give him personal care, as well as legally keeping him in the care home.

 

[care2share]

Thank you Chrissie, that's very useful xxxx

Hi Lynne,
You have had some very helpful and caring replies I must say BUT my understanding is that if you have LPA Health and Welfare a DoLS would conflict with this. At least that's what it says here in every one of my DoLS forms. As far as I can see YOU are his voice and the one who can say whether he is free to leave. I think this fails the test of "no refusals". Could be a money saving exercise. Don't quote me on it but that's what I believe to be true.

 

[lin1]

Hi Lynne,
You have had some very helpful and caring replies I must say BUT my understanding is that if you have LPA Health and Welfare a DoLS would conflict with this. At least that's what it says here in every one of my DoLS forms. As far as I can see YOU are his voice and the one who can say whether he is free to leave. I think this fails the test of "no refusals". Could be a money saving exercise. Don't quote me on it but that's what I believe to be true.

Though I am no expert I agree.
Some time ago I remember reading on here that, if you had a health and welfare LPA that a DOLs was not needed as the attorney decided where the person stayed/lived

 

[LynneMcV]

Thanks care2share and Lin,

I have to say that my initial thought was that as I have power of attorney over health and welfare and my husband is ruled as lacking capacity, then I automatically become his voice in this matter anyway.

It would sit better with me for a section 2 to be in place and renewed if necessary. I should also have access to all matters concerning my husband just as if I was him.

It's only his second day there and nobody has contacted me about it yet - it was just very quick message as I was leaving the unit yesterday to say the council would be in touch about DOLS.

I can see how it would suit them better to have DOLS in place rather than section 2 or 3.

I may hear more when I visit today.

 

[Pete R]

I think "care2share" and "lin1" are not correct and a Dols has nothing to do with deciding where someone lives. A DoLs is a safeguard for the person in a CH/Hospital to make sure any restriction on their liberty is lawful.

I have to say that my initial thought was that as I have power of attorney over health and welfare and my husband is ruled as lacking capacity, then I automatically become his voice in this matter anyway.

Yes you are correct in what you say and yes you will decide what happens to your husband.

PoA and DoLs are not contradictory, they are complimentary of each other and deal with separate issues. However if you are unhappy you are more than entitled to challenge it with the LA.

I truly believe there is nothing to worry about a DoLs and consider it just a paper exercise after a recent court case. You have so many things to think about and this is not one of them.

 

[Beate]

Yes you as a POA holder can decide whether someone goes into hospital or a care home by they will still put a DOLS on him to make sure they are depriving someone's liberty lawfully and in his best interest and that they are for example allowed to give him personal care even if that person might struggle with this. It's just a way things are done nowadays but I do understand that the way they go about it is upsetting. They should have clear communication, explain everything and involve you in the process and that's where authorities need to improve. In our case I wasn't told by the hospital until a letter arrived after he'd already been discharged. I wasn't happy about that either. Up to this point I hadn't even realised DOLS applied in hospitals as well!

 

[chrissie121]

I think "care2share" and "lin1" are not correct and a Dols has nothing to do with deciding where someone lives. A DoLs is a safeguard for the person in a CH/Hospital to make sure any restriction on their liberty is lawful.


Yes you are correct in what you say and yes you will decide what happens to your husband.

PoA and DoLs are not contradictory, they are complimentary of each other and deal with separate issues. However if you are unhappy you are more than entitled to challenge it with the LA.

I truly believe there is nothing to worry about a DoLs and consider it just a paper exercise after a recent court case. You have so many things to think about and this is not one of them.

Hi again, there have been some conflicting comments regarding your query but as below comment the two do not conflict each other. As stated below, you can and are your husband's voice and your views/opinions are taken into account but the DOL has to make sure your husband's rights are protected. if you think about it in a different way, perhaps as the holder of a POA you might decide you want him to go in a home, whether he likes it or not and you do this, that would be taking away his rights. The DOL team just check if someone is depriving him of his liberty or whether he needs to go into care/even short term. it doesn't contradict your LPA but it protects his rights. Your best bet is to visit the DOL website and even given them a call, they are very good and will help explain it probably better than any of us can. However, I do speak from experience having held LPA for my Mum and she was assesssed by the DOL team and one was issued, all with my input and knowledge and my views taken into consideration.

 

[Pete R]

Not sure you wanted to quote my post with your reply?

........if you think about it in a different way, perhaps as the holder of a POA you might decide you want him to go in a home, whether he likes it or not and you do this, that would be taking away his rights. The DOL team just check if someone is depriving him of his liberty or whether he needs to go into care/even short term. it doesn't contradict your LPA but it protects his rights.

A DoLs would not be used in these circumstances at all. An assessment under the MCA and a best interest meeting would take place before someone could be placed in a CH against their wishes.

A DoLs would only take place once a person is in a CH, Hospital or assisted living.

 

[tigerlady]

Also a DoLS is only valid for the place where the person is when it is taken out. When my husband changed care homes, he had to have a new DoLs for the new care home even though he had only just got one for the old home.

 

[notsogooddtr]

DOLS is designed to protect a person,it does not deprive them of their liberty,that will already have happened,it is to ensure that the decision is legal and that the person's rights have been properly taken into account.That's where the 's' for safeguarding comes in.It is not something to be feared.

 

[LynneMcV]

Thank you everyone who has taken time to respond.

The initial shock has declined and I am starting to get into our new routine at hospital.

I have two days of meetings ahead and then I will have to ease myself back to work as the mortgage and bills aren't going to pay themselves!

I feel blessed that my employer has always been flexible and incredibly understanding about my husband's disease and how it affects my working hours. They will have no problem with me working shorter days so that I can visit hospital each day.

I have added info to my blog the morning to outline how things are going.

The link to today's update is at http://forum.alzheimers.org.uk/entry.php?6730-What-a-week

Thank you again everyone for helping me through this somewhat bewildering time! Xxxx

 

[LynneMcV]

Unfortunately the care meeting due to take place today was cancelled as the care co-ordinator could not attend, so we are still without an agreed plan of action. As a result the meeting is likely to take place on Thursday instead.

I caught up with the GP who confirmed that investigations are ongoing as they try to see if there could be any other reason behind my husband's decline apart from the dementia.

There are no conclusive results but they confirmed there was no UTI present. I've told them that as blood has shown up in the urine several times now, I want them to look into that rather than simply write it off as not being a UTI . The GP made a point of adding that to the medical notes in case there are gallstones wreaking havoc (you'd have thought they'd be checking it out without me having to ask!)

I did get to chat with the Deprivation of Liberty Safeguards (DOLS) best interests assessor and it was fine.

DOLS can last up to a year but we agreed that a short one of 2-3 months would be more appropriate. I can challenge it if I think my husband is ready to come home before it expires. Likewise it can be renewed if things are still haywire - but hopefully that won't be necessary. It's on record that we want it to end asap so that there is no risk of my husband becoming institutionalised.

As for the visit itself, my husband wanted nothing to do with me today. Once more he thinks I've killed our daughter. He doesn't remember that she visited him yesterday to show him that she was alive - so we'll do the resurrection act again just as soon as she can get time off work.

 

[LynneMcV]

What a difference a day makes

I am just back from visiting my husband - and wow, what a transformation there has been since yesterday!

He was really happy to see me, gave me a kiss and a great big hug and we spent a lovely two hours chatting just like old times

With the way things were yesterday I had genuinely begun to think that we might be looking at care homes. How wrong could I have been.

All the information I had put on his 'this is me' form had clearly been taken on board. He'd had a shave, cleaned teeth and was taking pride in his appearance again. While we were there the staff were moving his belongings from his bedroom in the female area and relocating him on the male side as a bed had become free there. Thank goodness there will be no more hysterical screaming everytime he approaches the female loo by accident.

I am not sure what miracle medicine has brought about the sudden and welcome improvement but I am so relieved after the awful time he has been having. I am also pleased that the medication hasn't made him 'zone out' at all - he is chatty and happy again.

I have to admit that I was fighting back the tears - this time through happiness not sadness though

It's early days I know, and there will be plenty of monitoring to do yet, but I feel we have turned a corner now

 

[Lavender45]

That's really wonderful news and just the kind of visit you needed.

Lavender x