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.
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  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  UKSC 19 49
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