I’m inspired to take a look at this ‘deceptively simple’ question by David Beckenham’s excellent piece, on the powers the Mental Health Act 1983 gives to doctors and nurses.
Now that so many providers use the deprivation of liberty safeguards (DoLS), we need to be clear exactly what powers a provider is given by them. People often get confused between the Mental Health Act and the Mental Capacity Act (MCA), and though they can both be used to deprive people of their liberty so that they can be cared for, they are not the same.
What powers does a DoLS authorisation give us?
Well, the obvious one is that a DoLS authorisation gives us the power to deprive someone aged 18 or over of their liberty, in a hospital or care home, as long as they lack the capacity to consent to be there, for the purpose of being given necessary care or treatment.
This means we can prevent a person from leaving the place where they’re being given the care they need. It also makes it lawful for us to keep them under continuous supervision and control in their best interests, to protect them from foreseeable harm.
Even here, though, we need to be careful. Just because you’ve got the authorisation to do these things, this doesn’t mean that you have to do them.
Look for the least restrictive option to meet the need
We all know that this is one of the five statutory principles of the Mental Capacity Act (MCA), but did you know that these principles also apply to DoLS? See how it looks in practice:
Georgia has a head injury after a road accident, which has left her very confused and clumsy. She is being cared for in a nursing home, receiving physiotherapy together with treatment from a psychologist. A DoLS authorisation was given because her care plan met the ‘acid test’*.
She’s now so much better that a best interests meeting of all her care team, including, of course, Georgia herself and her family, decided she should go home. The authorisation still has two months to run, so the provider contacts the DoLS team to have it lifted.
In the meantime, staff encourage Georgia to do as much as possible for herself, without being supervised all the time. Learning point: if it’s not ‘necessary and proportionate’ to deprive the person of their liberty, you shouldn’t do it even if you’ve an authorisation that says you can.
DoLS can never be used to give compulsory treatment if the person lacks capacity to consent to it
This is a big difference between the Mental Health Act and DoLS. A DoLS authorisation only authorises the deprivation of liberty – which means the parts of the care plan that meet the ‘acid test’. * Unlike the Mental Health Act, DoLS can never authorise treatment, even for the person’s mental problems. DoLS are part of the MCA, which means that the wider MCA has to be used to make a best interests decision about any treatment that is needed.
What does this mean in practice? Another example:
Raz has dementia, and lacks capacity to consent to staying in his care home to be given necessary care or treatment. He gets confused and often tries to leave because he thinks he’s late for work; he also tries to eat things that are inedible, such as soap. There’s a DoLS authorisation to make it lawful to restrict his freedom, and for staff always to know roughly where he is and what he is doing.
Raz has a cluster of health problems, but lacks capacity to consent to the different medications which he needs. His GP knows the DoLS authorisation doesn’t cover treatment, and that Raz doesn’t have a Lasting Power of Attorney for health and welfare, ** so she leads a best interests decision-making process, following the check-list laid out in the MCA code of practice chapter 5:
In particular, they look for the ‘least restrictive option’: Raz gets upset by needles, and finds very large tablets hard to swallow, so they take account of that. The decision-making is recorded and linked both to his DoLS authorisation and to his care plan: this recording is evidence that both the provider and the GP have worked within the wider MCA, as well as within DoLS. As you see, DoLS really is part of the MCA, and we must recognise it as such.
* The ‘acid test’: this was laid down by the Supreme Court in 2014. A person lacking capacity is deprived of their liberty if they are both: subject to continuous supervision and control, and not free to leave. For more on this and how it relates to providers see:
** Lasting Power of Attorney for health and welfare: this is a way to give someone the power to consent to or refuse care or treatment if the person who made it loses capacity. For more information see MCA code of practice, link above, chapter 7
