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Letters

Letter to the Editor – The use of the Deprivation of Liberty Safeguards in Palliative Care and the Cheshire West judgment: A Missed Opportunity?

8 Dec, 14 | by James Smallbone, Publishing Assistant

 

To the Editor,

The Deprivation of Liberty Safeguards (DoLS) were introduced on the 1st April 2009 to provide a framework for the lawful detention of individuals in hospitals (including hospices) or care homes who are unable to consent to their placement.1 The DoLS have come under increased scrutiny this year due to the Supreme Court judgment in P v Cheshire West and a highly critical report issued by the House of Lords Select Committee on the Mental Capacity Act 2005.2, 3

Whilst it was hoped that the Lords’ report might lead to a new and more straightforward safeguarding system, a recent government statement has confirmed that it has no plans to replace the DoLS.4

It is important, then, for healthcare professionals to have an awareness of the significance of the Supreme Court judgment and its impact on their practice. Prior to this case, uncertainty as to what circumstances constituted a deprivation of liberty meant that even experts in this field failed to consistently agree on when the safeguards should be applied.5

The Cheshire West judgment should provide clarity in this area by describing the “acid-test” of circumstances that are likely to amount to a deprivation of liberty: namely, that a patient is “under continuous supervision and control and not free to leave”.6

Following this judgment, and given the prevalence of mental incapacity in medical inpatients, it is likely that many more people in hospices or hospitals may now be considered to be deprived of their liberty.7 The Care Quality Commission has already reported a sharp rise increase in DoLS applications.8

The onus remains on healthcare professionals to ensure that their treatment of an individual is lawful. This can be challenging. There is still no statutory definition of a deprivation of liberty.9 The forms can be complex and repetitive.10 Whilst there has been some commentary on the impact of the safeguards in critical care and psychiatry, much of the guidance produced is focused towards social care, often having little resonance with those implementing the safeguards in a clinical setting.11, 12, 13

From a palliative care perspective, in the year leading up to the Cheshire West judgment, there were 380 applications for DoLS authorisations arising from hospices.14 Of these, just under half (46%) were not authorised.15 The most common reason for lack of authorisation was that it failed the best interest assessment, which looks at whether a deprivation of liberty is necessary and proportionate.16

It is disappointing that the Supreme Court did not take the opportunity offered in the Cheshire West case to clarify the situation for healthcare professionals who may struggle to see the relevance of the safeguards to their everyday practice.

Failure to implement the safeguards appropriately is important not only because it represents best clinical practice, but also because failure to do so may result in legal challenge, investigation by the Parliamentary and Health Services Ombudsman or criticism on inspection by the Care Quality Commission.17, 18

As the House of Lords Select Committee report acknowledged, awareness and appropriate usage of the safeguards is unlikely to be satisfactory without further clear guidance in this area. In the meantime, however, and in the wake of these recent developments we should reflect on our practice to ensure that our treatment of the most vulnerable patients in our care is both lawful and in their best interests.

Yours Faithfully,

Caroline Barry, Norfolk and Norwich University Hospital, Palliative Medicine

 

1. Mental Capacity Act section 4A.
2. P v Cheshire West and Chester Council and another P&Q v Surrey County Council [2014] UKSC 19.
3. Select Committee on the Mental Capacity Act 2005 Mental Capacity Act 2005: Post Legislative Scrutiny (HL 2013-14, 139)
4. HM Government Valuing every voice, respecting every right: Making the case for the Mental Capacity Act The Government’s response to the House of Lords Select Committee Report on the Mental Capacity Act 2005 June 2014 2.6
5. R Cairns et al. Judgement about deprivation of liberty made by various professionals: comparison study The Psychiatrist 2011: 35: 344-9
6. P v Cheshire West and Chester Council and another P&Q v Surrey County Council [2014] UKSC 19 49
7. ibid
8. McNicholl A. Supreme Court ruling triggers sharp rise in deprivation of liberty notifications to the CQC http://www.communitycare.co.uk/2014/06/19/supreme-court-ruling-triggerssharp-rise-deprivation-liberty-notifications-cqc/#.U6M-7jmSTFJ (2014, accessed 19 June 2014)
9. Mental Capacity Act section 64 (5)
10. Select Committee on the Mental Capacity Act 2005 Mental Capacity Act 2005: Post Legislative Scrutiny (HL 2013-14, 139)
11. Cairn R et al.Deprivation of Liberty in Healthcare BMJ 2014; 348: 3390
12. Chatfield DA, Menon K. The Mental Capacity Act 2005 and its impact in critical care JICS 2011; 12: 49-51
13. 39 Essex Street A Deprivation of Liberty? Post Cheshire West and P & Q http://www.39essex.com/seminars/archive.php?seminar=207 (2014, accessed 3rd July 2014)
14. Health and Social Care Information Centre Mental Capacity Act 2005; Deprivation of Liberty Safeguards (England), Annual Report 2013-14 September 2014 24
15. Health and Social Care Information Centre Mental Capacity Act 2005; Deprivation of Liberty Safeguards (England), Annual Report 2013-14 September 2014 24
16. Health and Social Care Information Centre Mental Capacity Act 2005; Deprivation of Liberty Safeguards (England), Annual Report 2013-14 September 2014 24
17. Parliamentary and Health Services Ombudsman Complaint Ref 94049: 11020887 and 11020888 February 2014
18. HM Government Valuing every voice, respecting every right: Making the case for the Mental Capacity Act The Government’s response to the House of Lords Select Committee Report on the Mental Capacity Act 2005 June 2014 6.25

E-Letter Response to ‘Comparing the needs of families of children dying from malignant and non- malignant disease: an in-depth qualitative study’ (Jayne Price, Joanne Jordan, Lindsay Prior, Jackie Parkes, BMJ Supportive and Palliative Care (2012; 2: 127-132))

26 Apr, 14 | by James Smallbone, Publishing Assistant

Article citation: Jayne Price, Joanne Jordan, Lindsay Prior, Jackie Parkes; ‘Comparing the needs of families of children dying from malignant and non-malignant disease: an in-depth qualitative study’; BMJ Supportive and Palliative Care (2012; 2: 127-132)
Abstract, Full Text, PDF

 

Our journal club appraised with interest the study of Jayne Price and colleagues, which compared the needs of families of children dying from malignant and non-malignant disease and how paediatric palliative care still needs improvement, especially for those children with non-malignant life-limiting conditions.

This qualitative study only compared the needs of families of children with malignant and non -malignant diseases; group 1 v groups 2-4, although it would have been interesting to see which children in groups 2 to 4 have the most and least support.

With regard to the study design, participants were recruited from the children’s cancer unit and regional children’s hospice, although information is not given about what proportion these are of all the children who died during the study period. The methods of recruitment were also unclear, including how many refused to participate, their reasons and where the interviews took place.

Although ethics approval was granted and interviews were recorded with permission, it was not clear how ethical standards were maintained or how the issues around the consent and confidentiality were handled during and after the study.

Finally, we agree that future research needs to examine professionals’ awareness of the criteria for hospice referral and whether there is reluctance to discuss hospice care with parents because of the perceived link with death. This will hopefully lead to improvements in children’s palliative care service provision.

 

Mya M Aye, Paediatric SPR
Dr Martin Samuels, Consultant Paediatrician

 

E-Letter Response: ‘Don’t be Bitter: be Better’

22 Apr, 14 | by James Smallbone, Publishing Assistant

Article Citation: Catherine Sweeney, Gerardine Lynch, Ali Khashan, Bridget Maher, Marie Murphy, Tony O’Brien; ‘The impact of a medical undergraduate student-selected module in palliative care’; BMJ Supportive and  Palliative Care (2014; 4: 92-97)
Abstract, Full Text, PDF

 

Death is arguably the most important thing about us. It is our ‘condition of creation’ so to speak, and to deny its existence is to diminish life.

Palliative medicine remains a small part of the undergraduate medical curriculum, yet both medical students and junior doctors will regularly encounter patients at the end of their lives within all specialties.

All healthcare professionals should receive effective and regular training in palliative care and bereavement. This obviously ensures good patient care, but also provokes reflection on how the individual deals with death in a professional and personal context.

Doctors are known for their obscure and, at times, inappropriate dinner party conversation. However, jovial remarks made about tragic patient cases do not necessarily reflect a hard personality or supremely stable mental state, but may be a cathartic release of suppressed emotions.

Many of us have witnessed someone dying in a horrific or traumatising way. To ignore or bury our feelings about such events crushes the opportunity for reflection, which could both improve subsequent clinical practice and maintain a positive mental state.

‘How people die remains in the memory of those who live on’: Dame Cicely Saunders.

 

Emilie M. Green, Foundation Year 1 Doctor, Whipps Cross Hospital

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