DOLS - Should I have been informed?
- Thread starter Suzanna1969
- Start date
Can you explain how you think they could have prevented a DoLS from being needed?
When my mother (and see my previous comments) tried to "break out" of hospital because she was scared and didn't like being there (and she was 92 at the time) there was no question of resorting to the use of DoLS. The ward staff made every effort to find out was was wrong, and they made every effort to reassure her because they felt that this, and not depriving her of her liberty, was in my mother's bests interests. In the case we are discussing here, was there any attempt to do this before initiating the DoLS procedure?
The MCA was amended to make provision for the lawful deprivation of liberty. This amendment includes six requirements which have to be met before authorisation can be given. No one is infallible and hospitals can, and do make mistakes. I know we are talking about protection from possible physical harm, but as mentioned previously, there is a fine line between restricting and depriving someone of their liberty. There are emotional and psychological risks too, not just physical ones (for both the person with dementia and their families) and I feel that some (not all) hospital staff are poorly trained in understanding dementia, and by behaving in an officious manner, they are just perpetuating the stigma that is still attached to this cruel and horrible disease.
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"When my mother (and see my previous comments) tried to "break out" of hospital because she was scared and didn't like being there (and she was 92 at the time) there was no question of resorting to the use of DoLS."
How long ago was that?
DoLS was introduced as an amendment to the 2007 MHA and originally used for restraint in mental health cases.
In 2013 when my wife was in a nursing home access was gained by going through 3 key pad operated doors, there was no mention of DoLS. I think this was also the case in most care homes with secure entry/exit systems in place.
Some time after there was a court case involving the detention of a PWD in a care home by the use of a key pad exit door, the court ruled that this was unlawful unless there was a DoLS in place. This forced hospitals and care homes to apply for a DoLS to allow them to prevent a patient lacking capacity from leaving the building.
An unfortunate consequence of this is that when anybody subject to a DoLS restricting their movements dies the coroner has to be informed, they are considered as being under state detention. Unless there are other circumstances it's only a formality but is extra stress at an already stressful time.
How long ago was that?
DoLS was introduced as an amendment to the 2007 MHA and originally used for restraint in mental health cases.
In 2013 when my wife was in a nursing home access was gained by going through 3 key pad operated doors, there was no mention of DoLS. I think this was also the case in most care homes with secure entry/exit systems in place.
Some time after there was a court case involving the detention of a PWD in a care home by the use of a key pad exit door, the court ruled that this was unlawful unless there was a DoLS in place. This forced hospitals and care homes to apply for a DoLS to allow them to prevent a patient lacking capacity from leaving the building.
An unfortunate consequence of this is that when anybody subject to a DoLS restricting their movements dies the coroner has to be informed, they are considered as being under state detention. Unless there are other circumstances it's only a formality but is extra stress at an already stressful time.
Hi Nitram
It was in 2014. I gather that the amendment was introduced in 2009.
It is worrying, and stressful as you say, because I don't really consider neurodegenerative disease as being a mental health issue. This has been a fascinating discussion and an educational one. It certainly highlights the fact that it is highly controversial subject.
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There is great misunderstanding about what a DoLS implies and the confusion equally applies to the professionals we entrust are loved ones to be looked after by.
As many have said on here before the important letter is the "S" for "Safeguarding".
DoLS are there to protect the interests of the vulnerable to....
- Ensure people can be given the care they need in the least restrictive regimes
- Prevent arbitrary decisions that deprive vulnerable people of their liberty
- Provide them with rights of challenge against unlawful detention
- Avoid unnecessary .
Pre 2014 DoLS had happily sat in the MCA for many a year following the European Court stating there was no legal frame work of safeguards to make sure that people were not subject to arbitrary detention. Unfortunately in 2014 The Supreme Court came along and although saying everything was fine with the current system Lady Hale in her statement issued an acid test for what constitutes a "Deprivation of Liberty". The acid test is......
1. Is the person subject to continuous supervision and control? All 3 aspects are
necessary.
AND
2. Is the person free to leave? The person may not be saying this or acting on it, but
the issue is about how staff would react if the person did try to leave.
This caused a massive panic in care Homes/Hospitals concluding that even though they are acting in someone's best interests under the MCA a DoLS was now needed in every occasion to assess if was in fact in the best interest. This has certainly messed up the aim to avoid unnecessary bureaucracy.
DOLS exists to safeguard individuals when a deprivation of liberty is an unavoidable part of a best interests care plan. It is not an authorisation to detain.
Many Local Authorities have been unable to cope with the massive influx of requests, my Mom has been in care since 2014 and although a DoLS has been applied for it still hasn't been completed, that I believe DoH guidelines to ease the pressure are under review.
DoLS should not be worrying or stressful.
Although DoLS is incorporated in the MCA it applies to anyone who lacks capacity to make decisions, doesn't really matter about the cause.
DoLS should not be worrying or stressful.
Although DoLS is incorporated in the MCA it applies to anyone who lacks capacity to make decisions, doesn't really matter about the cause.
Yes it may apply to lack of capacity. Yes, it may be safeguarding in the purest sense, but it still can deprive someone of their liberty. Like all these issues, it very much depends on the circumstances. If you look at cases in Medical Law, you will find examples where the courts ruled against a DoLS procedure because it was considered to deprive rather than safeguard. In other instances, the courts felt that a specific course of action didn't amount to deprivation of liberty.
I believe it is the MCA that can deprive people of their liberty if it is deemed to be in their best interests. A DoLS is not needed for that. A DoLS is a safeguard but I agree mistakes can be made.
I would be grateful if you could point me in the direction of "where the courts ruled against a DoLS procedure because it was considered to deprive rather than safeguard"
I believe it is the MCA that can deprive people of their liberty if it is deemed to be in their best interests. A DoLS is not needed for that. A DoLS is a safeguard but I agree mistakes can be made.
I would be grateful if you could point me in the direction of "where the courts ruled against a DoLS procedure because it was considered to deprive rather than safeguard"
Deprivation of liberty does not appear to be defined in the MCA 2005, or in any other statute for that matter. The whole statutory scheme seems to be therefore based on what the courts interpret deprivation of liberty to be, so in other words, the structure is built on the shifting sands of each court decision. This is what makes it difficult and very confusing for professionals.
Most of the literature on Medical Law and Ethics with emphasis on case law will contain examples of different rulings. You might find the following references to be of some interest.
William Charles (Charles J), ‘The Report: Deprivation of Liberty Safeguards’ (BBC Radio 4, 24 November 2011)
Ruth Cairns et al, Judgments about deprivation of liberty made by various professionals: comparison study (2011) 35 The Psychiatrist 344. Ruth Cairns et al, Mired in confusion: making sense of the Deprivation of Liberty Safeguards (2011) 51 Med Sci Law 228.
The Mental Capacity Act Deprivation of Liberty Safeguards (MCA DOLS) were introduced, as part of the Mental Health Act 2007, by the Department of Health in April 2009.
The MCA 2005 was subsequently amended and you can find the legislation in Chapter 9-Schedule A1.
Thanks for the other information.
My husband was in a nursing home for 4 years with a DOLS in place. He was assessed every year and it was always a lengthy assessment and great care taken. He was free to go out with family, he was free to go out with carers, free to go into the garden, just not alone
For the last two years he was at home he could not go out alone. He had lost any sense of direction and his road awareness was non existent so life in the nursing home with a DOLS in place was no different to his life at home as far as freedom to wonder alone was concerned. The DOLS made no difference to his life in the nursing home.
For the last two years he was at home he could not go out alone. He had lost any sense of direction and his road awareness was non existent so life in the nursing home with a DOLS in place was no different to his life at home as far as freedom to wonder alone was concerned. The DOLS made no difference to his life in the nursing home.
The Mental Capacity Act Deprivation of Liberty Safeguards (MCA DOLS) were introduced, as part of the Mental Health Act 2007, by the Department of Health in April 2009.
The MCA 2005 was subsequently amended and you can find the legislation in Chapter 9-Schedule A1.
Thanks for the other information.
Still a very complex subject and not as clear cut as we might think. The Law Society has even published a "practical guide" although at nearly 140 pages long, it certainly isn't a quick guide! The Law Commission has also produced a consultation paper on the subject of Mental Capacity and the Deprivation of liberty. A nice round 230 pages long. Should make light bedtime reading for you!
Interestingly, section 2.12 of the paper states that:
"The DoLS have been subject to heavy criticism since their inception. This
culminated in the 2014 report by the House of Lords committee which concluded
that:"
"The level and breadth of criticism of the DoLS, including from the
judiciary, demonstrates that the legislation is not fit for purpose. Better
implementation would not be sufficient to address the fundamental
problems identified."
It then goes on to list the main problems with the DoLS. Among these problems, you will find reference to
the fact that DoLS is "based on case law which continues to be a moving target [see my earlier point about shifting sands]. In some cases, the case law has proved to be complex, controversial and on occasion contradictory."
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Absolutely - same here.
A DoLS is not a deprivation of liberty order.
It is a piece of law designed to make sure that the deprivation of liberty that is happening, is necessary and reasonable.
