Abstract
Introduction
There is uncertainty about how to identify deprivation of liberty and the interface of the Mental Health Act and Mental Capacity Act Safeguards.
Objective
To increase current understanding by exploring how an expert legal panel interpret existing case law relating to deprivation of liberty in the clinical setting.
Design
Clinical vignettes of real patients were used to explore lawyers' thinking about important factors that: (1) distinguish lawful restriction from deprivation of liberty and (2) govern the choice between safeguard regimes when there is deprivation of liberty. The relative importance of such factors was discussed in a consensus meeting using a modified nominal group approach.
Participants and setting
Six eminent barristers and solicitors with expertise in mental health law attended a consensus meeting after making individual judgements about vignettes describing the situations of 28 incapacitated patients who had been admitted informally to a range of psychiatric inpatient units in South East London.
Results
Lawyers attributed key importance to a patient's ‘freedom to leave’ and suggested that patients' subjective experiences should be considered when identifying deprivation of liberty.
Conclusions
Clarification of deprivation of liberty and its safeguards will develop with future case law. Based on current available case law, the lawyers' expert views represented a divergence from Code of Practice guidance. We suggest that clinicians give consideration to this.
Introduction
The European Court of Human Rights' (ECtHR) judgement in HL v United Kingdom in 2004, known as the ‘Bournewood’ case, had important implications for mental health and mental capacity legislation. 1 HL was a man with autism and learning disability who lacked capacity to consent to a psychiatric admission following an episode of self-harm. He was admitted as an informal patient to Bournewood Hospital and had not objected to or resisted admission. However, he was not allowed to leave hospital and would have been prevented from doing so had he tried. Furthermore, the paid carers with whom he lived were not allowed to visit him after their request for his discharge into their care had been refused by the hospital. The ECtHR ruled that HL had been deprived of his liberty during the admission and also that the common law, which had been widely used to hold and treat patients lacking capacity, was in breach of Articles 5(1) and 5(4) of the European Convention of Human Rights (ECHR). 2 It contravened an individual's right to be detained only by a procedure prescribed by law and also the right to a speedy review of the legality of the detention.
In England and Wales, the Government responded by using the Mental Health Act (MHA) 2007 to amend the Mental Capacity Act (MCA) 2005 and the Deprivation of Liberty Safeguards (DoLS) were introduced in April 2009. 3–5 There are now two statutory structures, one based on risk and the other on incapacity and best interests, available for the provision of mental health care and, apart from in a few restricted circumstances, 6 it is no longer an option to use common law to deprive an incapacitated person of his or her liberty in a hospital or care home. If deprivation of liberty is necessary to provide care required in a person's best interests, a choice must be made between MCA DoLS and the MHA.
Clinicians, particularly psychiatrists, general practitioners and geriatricians managing vulnerable patients who lack mental capacity to make decisions about care and treatment in hospital and care home settings are now expected to implement DoLS. This involves being able to identify patients who are or are at risk of being deprived of their liberty and deciding which legal framework (MCA DoLs or MHA) should be applied. However, use of the DoLS has been low and the reasons for this are unclear. Studies indicate both that clinicians are often unaware that patients lack capacity, and that incapacity is common in psychiatric inpatients. 7,8 Recent studies showed that 39% of informal general adult and 42.1% of informal older adult psychiatric inpatients lacked capacity to make decisions about admission for treatment. 9,10 While it has not been possible to determine the prevalence of deprivation of liberty in patients falling into the ‘Bournewood gap’, it is not unreasonable to imagine that it might be common. A recent study found that informal patients without capacity felt more coerced and objected more than informal patients with capacity. 9
One major problem may be that while managing authorities are obliged to identify deprivation of liberty where this is happening, the DoLS Code of Practice advises ‘there is no simple definition of deprivation of liberty … it is ultimately a legal question, and only the courts can determine the law’. 5 Although the Code of Practice lists seven factors (see Box 1) that may contribute to a deprivation of liberty, it also advises that ‘there is unlikely to be any simple definition … it is probable that no single factor will in itself determine whether the overall set of steps … amount to a deprivation of liberty’. Unfortunately, the courts have yet to provide the necessary clarity and current case law is open to different interpretation. The government's attempts to provide guidance have been criticized. 5,11,12 In particular, unlike the Code of Practice, the Joint Committee on Human Rights favoured Munby J's view expressed in JE and DE v Surrey County Council that the key factor in determining whether there is deprivation of liberty is not whether a person's freedom is curtailed within the institutional setting but whether or not the person is free to leave. 13,14 The precise boundary between lawful restriction and deprivation of liberty therefore remains blurred.
Factors listed in the Code of Practice that may be relevant to identifying deprivation of liberty (5):
Factors listed in the Code of Practice that may be relevant to identifying deprivation of liberty (5):
Use of restraint, including sedation, to admit a person to an institution where that person is resisting admission Complete and effective control exercised by staff over the care and movement of a person for a significant period Control exercised by staff over assessments, treatment, contacts and residence A decision by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless considered appropriate by staff in the institution The person is unable to maintain social contacts because of restrictions placed on access to other people The person loses autonomy because they are under continuous supervision and control
There is also uncertainty about the interface between the MCA DoLS and existing mental health legislation. Significant overlap exists between the two statutes and, not least because they are grounded in very different underlying principles, this leads to clinical, ethical and legal dilemmas about which regime to use in certain situations. 15–17 The MCA specifies some of the factors that are to govern this choice. In particular, where an incapacitated patient meets the criteria for MHA admission and objects either to admission or to some element of their proposed treatment, then the MHA should be used rather than the MCA. However, neither the MCA nor the Code of Practice provides a definition of objection although both do describe the factors to be taken into account. 5
The aim of this study was to explore, in lieu of awaited future case law, how an expert legal panel interpret existing case law surrounding DoLS using real clinical vignettes. In particular, we wanted to understand how they distinguished between restriction and deprivation of liberty and how they decided whether MHA or MCA safeguards should be used where there is deprivation of liberty.
Method
A case series of 28 anonymized clinical vignettes was sent out to a legal panel composed of six very experienced barristers and solicitors with expertise in mental health law. The panel members' experience included chairing Mental Health Tribunals and involvement in cases that have provided guidance for identifying deprivation of liberty to date, most notably the ‘Bournewood’ and ‘JE’ cases. 1,14 The experts were asked to determine in each vignette whether the patient was deprived of liberty and, if so, whether the MHA or MCA safeguards should be used. They also provided reasons for each decision. The vignettes related to informally admitted psychiatric patients who lacked capacity to make decisions about admission for assessment or treatment and outlined real clinical situations, including information about restrictions imposed on the patient and the patient's views and attitude towards his or her situation. For this study, the vignettes were used as a tool to aid the lawyers' thinking about factors that are important in decision-making relating to deprivation of liberty and its safeguarding either by DoLS or the MHA. The lawyers' individual response sheets were returned to the research group before a group meeting was convened. An outline of one case vignette is shown in Box 2 to illustrate the type of clinical situations that the lawyers were faced with. The vignettes and degree of concordance between the lawyers' deprivation of liberty judgements are described more fully in a subsequent paper. 18
Example case vignette
X is an 80-year-old woman who has been living in an NHS continuing care unit for two years following transfer from an old age psychiatry ward where she had been initially managed under Section 2 of the Mental Health Act but then as an informal patient. She was diagnosed with Alzheimer's disease six years ago but this has progressed and is now severe. She is dependent on nursing care for all activities of daily living. Her speech has reverted to her mother tongue, her language skills have now been almost totally lost and her level of understanding is very poor. She remains independently mobile.
Her care plan from the psychiatric ward has been continued at the continuing care unit. Due to X's dementia, she lacks capacity to make decisions about care or treatment. She becomes agitated when nursing staff attend to her personal care and she refuses medication. It has been agreed with the family that medication will be given covertly in food in her best interests and that, as her nursing needs are considerable, sedative medication will be given before attending to her personal care to lessen her resistive behaviours. Using this approach, she is given covert medication 30 minutes before nursing interventions and still requires four nurses to attend each time. According to the care plan, this is benign force for essential care. She requires changes of clothes (for day and night) twice daily and changes of pads and toileting four times daily. She becomes agitated and breathless during these interventions.
The door to the unit is kept locked and she has been outside on only a few occasions over the last year to attend hospital appointments and for one or two short walks. The staff express concern that if she goes out more regularly she will not return to the unit. There were concerns a few months ago that she had repeatedly tried to get out of her bedroom window and she pulled the curtain rail down in her room. It was not clear if this was goal-directed behaviour but it has not continued and the staff do not feel that she has made any recent attempts to leave the unit. She is prevented from spending time in her own room during the day because all ground floor bedrooms are kept locked in order to reduce the risk to another resident in the unit. She is visited by family on an irregular basis but there are no restrictions on this. She often presents as cheerful in between nursing interventions and eats and drinks well.
Due to the severity of her dementia, X was not able to partake in the research interview. She was unable to vocalize her feelings but it was the impression of the nursing staff that her resistive behaviours and the need for covert medication represent ‘partial rejection’ of living in the unit and ‘complete refusal’ of treatment. The unit manager was unsure if X objects to living in the unit and to her care. She thinks X's difficult behaviours might be behavioural symptoms of dementia rather than representing an objection per se. Her relatives do not object to the care she receives in the unit.
Consensus meeting
Factors identified by the lawyers as distinguishing between a restriction and deprivation of liberty and in governing the choice of detention regime were extracted from written responses before holding a half-day group meeting, attended by five of the six original respondents. The meeting, held in October 2009, was split into two sessions to address the two areas of interest: how to distinguish a restriction from a deprivation of liberty and how to choose between DoLS or MHA in the setting of incapacity and deprivation of liberty. A nominal group approach, a method for generating consensus in groups, was used. 19,20 This enables groups of people with expertise in an area to generate and rank ideas using a controlled structure, which reduces the effects of dominating members. We modified the approach by starting each session with a list of factors that had already been identified as important by the lawyers' written responses to the vignettes. The lawyers then discussed these factors in turn to share views and clarify issues. During each session the list of factors could be added to but factors could not be taken away and at the end, following the discussion, each lawyer was asked to rate the importance of factors, using a five-point Likert scale ranging from 1 (very important) to 5 (unimportant).
The structure was the same for both sessions and in addition to discussing and rating important factors, the lawyers were asked to consider questions about the meaning and relative importance of ‘being free to leave’ in the first session and about ‘objection’ in the second session. The meeting concluded with feedback to the lawyers about the ranked importance of factors, based on their individual ratings, for each of the two sessions and a closing discussion for final thoughts. The meeting was audio-recorded and transcribed for the purpose of analysis.
Analysis
Descriptive statistics are used to report ranking of the relative importance of factors involved in, firstly, distinguishing between lawful restriction of liberty and deprivation of liberty and, secondly, in governing the decision between safeguard regimes when there is incapacity and deprivation of liberty. The discussion around the factors are summarized and quotes are used to exemplify issues.
Results
Although there was overlap between indicators of deprivation of liberty provided by the code of practice and factors identified by the lawyers, the lawyers also introduced a number of additional factors for consideration. These included the patient's freedom to leave, his or her subjective experience and other reasons why the patient is unable to leave. The patient's ‘preintervention’ circumstances, availability of an alternative residence, and state responsibility for the deprivation were raised as important factors under the heading of ‘why the patient is unable to leave’. The lawyers' discussions around these factors are outlined below.
Freedom to leave
The panel were unanimous in the view that clinicians should consider whether a patient is free to leave when determining whether there is deprivation of liberty: ‘… it seems to me that the easiest starting point … is to ask yourself the question whether they are free to leave? And usually that's going to get you 99% of the way.’ (L1) ‘The primary question is, can they get out of that door and decide not to be there anymore?’ (L2)
The presence of a locked ward door, though relevant, was not thought to be of primary importance in determining whether a patient is free to leave or deprived of liberty: ‘… it depends if you can ask for it to be unlocked.’ (L3); ‘The absence of a locked door doesn't imply that you're free to come and go because there are other ways of stopping people leaving.’ (L4)
Box 3 shows questions suggested by the panel to help determine whether a patient is free to leave. Where the patient is not free to leave, the panel suggested a number of factors that might be considered in order to determine whether in all the circumstances there has been a deprivation of liberty. Table 1 presents these factors and their relative importance.
Box 3 Questions suggested by lawyers as helpful to consider when determining whether patient P is free to leave
Would you stop P from leaving if he/she tried and had a home to go to? Have active steps been taken to prevent P from leaving (consider ward regime including locks, medication, denying access to visitors) Would you allow P's relatives or friends to take them out unconditionally? Would you allow P to live with friends or relatives if they were willing to have him/her? Is P physically capable of leaving if he/she tried? Does P believe, or has P been led to believe, that he/she cannot leave?
Ranking of the relative importance of factors determining deprivation of liberty, assuming that the patient IS NOT free to leave
Ranking of the relative importance of factors determining deprivation of liberty, assuming that the patient IS NOT free to leave
*Factor added during course of discussion, rather than extracted from written responses
n=Incomplete data – factor not rated by one or more lawyers (number given)
Consideration of the patient's subjective admission experience was rated as very important by four of the five panel members. Subjective experience also featured in the questions suggested by the panel to determine whether a patient was free to leave (question 6, Box 1). ‘So first of all you decide whether they're free to leave and then you try to work out whether they want to leave and that will help you.’ (L3) ‘… if somebody is genuinely happy with where they are, then, I think you would be able to advise people that that factor can be determinative.’ (L1)
There was, however, concern about the introduction of this subjective element to the measure of whether the patient has been deprived of liberty. One lawyer was particularly concerned about this: ‘… the danger for me is that … somebody could be in a situation that anybody objectively would call deprivation of liberty but because they were incapable of understanding that or because they for some reason found it pleasurable, that would reduce it, that would make it not a deprivation of liberty while objectively it was.’ (L5)
This concern was understood by others. However, one lawyer, in support for the introduction of the subjective factor, proposed the ECHR view that capacitous consent converts what would otherwise be a deprivation of liberty into a restriction of liberty. A discussion about the role of ‘consent’, and how this might be interpreted in individuals lacking capacity, ensued: ‘If you say to me, and I don't have capacity, would you like to go out for a walk? And I say, ‘yes’, then however much I don't have capacity, that's still consent isn't it, it may not be capacitous consent.' (L3)
A majority of the panel felt it relevant to consider the incapable patient's attitude to the deprivation, even if they could not consent in the legal sense. Therefore if a patient lacks capacity to consent but seems to be assenting this might be taken into account when looking at all the circumstances. The point was made that the closer the patient is to being capable the more significance should be attached to his or her apparent assent, suggesting that the level of incapacity should be taken into account when considering a patient's subjective experience. The lawyers felt that subjective experience becomes more important as a discriminating factor for patients whose mental capacity ‘falls just below the line’ than for severely incapacitated patients in whom apparent contentment or acquiescence might represent nothing more than an inability to formulate or express an opinion at all.
Finally, the presence of a perceived or actual threat of MHA detention was considered important by a majority of the panel, suggesting that attention should be paid to coercion pressures when interpreting subjective experience and ‘consent’.
Why the person is unable to leave
Two of the panel felt that the degree of ‘liberty’ enjoyed by an individual before the admission was a very important factor in determining whether the patient was deprived of liberty: ‘… and if there's a significant difference, can that difference be accounted for by deterioration in their condition? And if it can't then that's deprivation of liberty … it's the intervention that potentially robs somebody of their liberty.’ (L5)
This approach was felt to be particularly relevant in certain situations, such as in cases of advanced dementia when a patient is dependent on full nursing care: ‘Well to me it simply has no meaning to say, you're depriving that person of their liberty by keeping them in a place and asking us the question, “well if they should miraculously get up from their bed and walk, would you let them go?”.’ (L4)
A decision made by a clinical team that a patient will not return home at the point of discharge was felt to be either very important or important by four of five panel members. There was a less unified view about how the related issue, of whether the patient has anywhere to go as an alternative to the detaining environment, should influence the decision-making process. One lawyer was of the view that this had been shown to be important in JE and DE v SCC where the applicant would not have been found deprived of liberty if he had not been offered a home that was described as offering him a better quality of life.
14
Another lawyer expressed concern about the possible influence of this factor: ‘I would say there is a difficulty … if you have a situation where you only say there's a deprivation of liberty where there's an alternative place for them to be. In fact you're actually creating a situation where the people who are probably most likely to need some kind of safeguard, by which I mean independent review … the people who don't have anywhere else to go are the people who are left … without any … of those safeguards.’ (L1)
For a deprivation of liberty to occur under the ECHR the state must be responsible for the deprivation. The lawyers felt that this requirement might become relevant where a ‘non-state organ’ is implicated, for example, where a patient is prevented from leaving hospital because the family refuse to take him or her back, or are temporarily unable to do so: ‘I mean, if he expressed the view that he wanted to leave and wasn't prepared to wait for his family to come back (from holiday) then the question might become more acute … and that might be the point at which you start looking at other factors such as the duration of the measure or the purpose of the restrictions.’ (L1)
Restrictions on leave and contact with others
Differentiating between leave types, for example, negotiated informal leave and escorted leave, was thought to be of minimal importance, if the patient is not free to leave. Restrictions on contact and communication with friends and family were considered to be of high importance in determining deprivation of liberty. It was also suggested that clinicians should consider patients' access to the community as this reflects the extent to which visits in the community actually happen: ‘… you might have leave restrictions but you never actually get out because there's nobody supporting you to have any access in the community.’ (L1)
Other factors
A lower level of importance was attributed to the use of restraint, the nature of treatment given in hospital and the level of nursing observations, when the patient is not otherwise free to leave. Occasional benign restraint, for example returning a patient with dementia who has wandered off aimlessly, is unlikely to represent deprivation of liberty. However, by working on the assumption that the key factor is freedom to leave, the lawyers' ratings also suggested that these other factors become subsidiary. The degree of restraint imposed by the physical environment, in terms of space availability, was raised as being an important factor in some detaining institutions but its relevance within the hospital setting was questioned.
‘Anomalous’ situations: NOT free to leave but NOT deprived of liberty
As covered in (b), the lawyers suggested that within the hospital setting, there may be mitigating factors tipping the balance towards restriction of liberty, even when the patient is not free to leave. It was proposed that ‘consent’, albeit non-capacitous consent, to containment and also shorter duration of imposed restrictions might act in this way. Case law has not yet provided guidance on the duration for which restrictions can be imposed on a hospital patient before the threshold for deprivation of liberty is crossed. However, the lawyers suggested that the Courts may take a more pragmatic view when considering, for example, respite care in a hospital or care home setting, than has previously been taken in the case of home curfew or detention of protesters to prevent breach of the peace. 21,22
Understanding the MHA/MCA interface
The relative importance of factors identified by the panel as relevant in governing the use of the MHA or MCA safeguards is shown in Table 2. The discussion around each of these factors is summarized below. As explained in the discussion section of this paper, our lawyers meeting was held before the GJ v the Foundation Trust judgement and the following should be read with this in mind. 23
Ranking of the relative importance of factors guiding the decision between MHA and MCA DoLS when the patient is deprived of liberty
Ranking of the relative importance of factors guiding the decision between MHA and MCA DoLS when the patient is deprived of liberty
*Factor added during course of discussion, rather than extracted from written responses
The panel was unanimous in the view that the presence, or not, of a patient's objection is a very important factor in determining which legal framework should be used. It was suggested that the question of objection often arises logically in psychiatric inpatients, as a factor determining formal admission under the MHA, before consideration is given to the use of DoLS. However, ‘objection’ in the context of the MCA encompasses valid advance directives as well as other less formal objections. It is important to establish what a patient is objecting to: if the objection is to being accommodated in a psychiatric hospital for the purpose of treatment for mental disorder, in other words to being a ‘mental health patient’, the patient becomes ineligible for DoLS. According to the DoLS Code of Practice, in a care home that is not MHA-registered, the question of objection is of little relevance: if care can be provided in that setting, DoLS should be used regardless of a patient's objections.
The panel did not find it difficult to identify objection in its simplest form and agreed that words and actions were both meaningful: ‘… if it sounds like an objection, it's an objection.’ (L3)
However, there was uncertainty about how to interpret the MCA Schedule 1A (inserted by MHA 2007) where the factors to be considered when assessing objection are listed, particularly with respect to the relative importance of patients' past and present wishes.
3
One lawyer questioned how much weight should be attached to objection when it is transitory or felt to lack conviction, as can be the case in severe dementia. This introduced the distinction between ‘intentional’ and ‘non-intentional’ objection: ‘And so … is the mere saying of the words sufficient or is one looking beneath that into their intention if, indeed, they have one? And, I think the traditional approach is the latter.’ (L4)
Persistence of objection was also thought to be relevant; suggesting it should be assessed over a period of time to allow for the transition from home to hospital: ‘… not a very long period of time but … they can object when they're first brought in and then settle down quite happily or they can object when they're first brought in and then settle down rather hopelessly and in the latter case they are still objecting but they don't think anything can be done.’ (L3)
Fluctuating capacity and fluctuating objection
Four of five lawyers rated fluctuating capacity as important or very important in determining MHA use in the hospital setting. This was felt to be of practical importance to prevent swapping between regimes where a patient subject to a DoLS authorization intermittently regains capacity and becomes ineligible for the MCA safeguards. For similar reasons two lawyers thought that fluctuating objection was an important factor guiding preferential use of the MHA. Another lawyer disagreed and thought, simply, that more care should be taken assessing objection when it was fluctuating rather than stable.
Medical treatment and risk criteria
Two lawyers rated whether the patient is receiving ‘medical treatment for mental disorder’ as very important in governing use of the MHA rather than MCA safeguards. The main reason for this was the importance they attached to the consent to treatment provisions of the MHA. Another member of the panel disagreed and held the view that this factor should not be determinative of MHA use on the grounds that, in the absence of objection, a patient's choice not to be detained under the MHA should be respected and because ‘medical treatment’ encompasses care that will not necessarily include pharmacological treatment. Three of the five lawyers felt that the presence of risk, particularly to others, for which the MCA cannot safeguard, was either important or very important in determining MHA use. The position is less clear cut when the risk is to self and the patient is not objecting.
Compensating for legal ambiguities
The overlap existing between the two legal frameworks available to authorize deprivation of liberty introduces the possibility of making clinical decisions based on interpretations that are pragmatically intended to benefit the patient. In this respect, the lawyers discussed the premise of MCA safeguards as the least restrictive alternative. This revealed disparate views: ‘The least restrictive alternative is not to deprive them of their liberty at all … It's a false choice. To say that … detention under the MCA is the least restrictive alternative is an absurdity … That merely provides the legal framework.’ (L1)
The same lawyer argued the MHA to be ‘the most human rights’, if not the least restrictive, alternative on the basis of the increased safeguards (i.e. automatic referral to a Mental Health Review Tribunal; consent to treatment provisions, involving a Second Opinion Approved Doctor; and free aftercare under Section 117) compared with the DoLS where an application must be made to the Court of Protection where there is concern about the deprivation of liberty. Others found the MCA schema for acting in a person's best interests very relevant and argued that, from a patient perspective, the MHA is more discriminatory and associated with significant stigma. There was, however, a feeling that this might change, particularly once the financial implications of the MCA safeguards are understood: ‘I think the issue of money is going to become a real issue here and there are going to be some very creative uses of the Mental Capacity Act … to avoid the (financial) benefits that accrue to people from being detained under the Mental Health Act in terms of Section 117 and so on.’ (L3).
Two of the five lawyers thought that the increased safeguards offered by the MHA were a very important factor favouring choice of this regime: ‘You have to be looking at the ill that the law is trying to remedy and it must be right that people should have as much freedom as possible so if they're not objecting to the regime that they're under then you don't want to impose great legal superstructures over it. But if they are under some kind of regime then you want them to have the best regime, which is the Mental Health Act.’ (L3)
This view was shared, to a lesser extent, by two other members of the panel with just one lawyer remaining unconvinced by the argument, remaining firm in the view that non-objecting patients should have the option of not being MHA-detained, in view of the associated stigma.
Place of detention
The Code of Practice makes it clear that place of detention guides the decision between the MHA and MCA and therefore the panel was unanimous in the view that this is a very important factor. Objection only makes someone ineligible for DoLS if that treatment is wholly or partly for mental disorder in a hospital and not in a care home: ‘So if they're in a care home, which is not a hospital for the purposes of treating mental disorder then they're not ineligible, even though if they were in a hospital they would be ineligible and therefore they'd have to be sectioned (under the MHA).’ (L1)
There were significant concerns about the inequality that this introduces into the treatment of patients with the same conditions under different detention regimes: ‘Because actually you're being detained in a care home and they're saying it's deprivation of liberty … I mean why should you be treated differently in those two respects? You're deprived of the opportunity of an automatic referral to a tribunal that you get out of the MHA and you're deprived of the opportunity to have a SOAD (Second Opinion Approved Doctor) to overlook your treatment and you're deprived of the opportunity of having free aftercare all of which seem to be discriminatory …’ (L3)
Discussion
Main findings
The DoLS legislation is, without doubt, complex. This was highlighted by the difficulty experienced by our panel of legal experts in understanding many aspects of the safeguards and Code of Practice, and particularly around interpretation of the MCA Schedule 1A and the interface of DoLS with the MHA. The lawyers held varied, and at times disparate, views and opinions on many of the factors identified as relevant to deciding on restriction versus deprivation of liberty and DoLS versus MHA. However, there were certain factors on which unanimous or majority views were held and we think that clinicians would be advised to attend to these more than to factors where no consensus was achieved.
The lawyers were unanimous in attributing key importance to a patient's freedom to leave when distinguishing between deprivation and restriction of liberty. This represents a divergence from the Code of Practice, as did the lawyers' majority view that a subjective element should be introduced by considering the patient's attitude towards their situation in a detaining institution. The latter view was reflected in the questions suggested as helpful for determining whether a patient is free to leave; tying the more objective context of restrictions with the patient's subjective experience. This offers a possible pragmatic solution to the problem of limited resources. As was suggested by one lawyer, ‘if somebody's being provided with good care and they're accepting that care, then I'm not sure what it is they're being safeguarded against’. An alternative approach to widespread use of DoLS might involve better inspection and regulatory regimes for all non-objecting incapacitated individuals in hospital and care homes aimed at ensuring good care really is provided. The DoLS could be more narrowly targeted ‘towards the real ills’.
The panel was unanimous in the view that objection and place of detention are the most important factors in determining the choice of statute, as suggested by MCA Schedule 1A. There was, however, some difficulty with the concept of objection with a tension emerging about the relative significance of ‘intentional’ and ‘non-intentional’ behavioural objection. There was significant unease about the apparent conclusion that a patient's objection is not relevant in a care home setting where the MHA is unavailable: this introduces discrimination by treating patients with the same conditions under different regimes, according only to place of detention. Arguably, this frank discrimination raises concerns about compliance with Article 14 of the ECHR, although the discrimination occurring here is not on any of the named grounds in Article 14 (‘sex, race, colour…’) and it is unclear whether it falls within the catch-all ‘other status’. Four of the five lawyers held, to varying degrees, the view that an important determinant of detention regime should be provision of safeguards that afford the patient the best possible outcome for his or her individual circumstances. Perhaps ironically, considering the underlying principles of the two statutes, this amounted to a feeling that the increased rights and financial benefits offered by the MHA were an important consideration.
Strengths and limitations
We believe the nominal group technique was well suited to this study which explored the views of legal experts to inform understanding of the DoLS legislation. It is essentially a qualitative technique but with the advantage of also producing quantitative outcomes due to ranking of the ideas produced. We believe that our modification of this approach was justified both by the complexity of our research questions and to keep the group meeting as focused as possible. Although the ranking of the importance of factors in Tables 1 and 2 does not provide high-level evidence, it usefully summarizes the views of the legal experts attempting to interpret a complex area of law, and also informed our analysis of the lawyers' discussion. The research is timely but clarification of the safeguards will develop with future case law: the views and opinions reported here may also change. In this respect, and for the sake of completeness, it is worth mentioning the GJ v the Foundation Trust judgement made in November 2009, one month after the lawyers' meeting for our study. 23 The case was concerned with eligibility for DoLS. The choice between the MHA and MCA now appears more clear-cut than it once did. It suggests that there is in fact little overlap between the MHA and MCA, and that the MHA takes primacy if admission is to hospital for treatment of mental disorder as opposed to a physical condition and the patient is objecting – the patient's reasons for objecting not being relevant for this purpose.
Implications
We believe that in the absence of clear Code of Practice guidance and, with further case law still awaited (see above re: GJ v the Foundation Trust), this study introduces some clarity to the confusion that currently surrounds the MCA safeguards and their interface with the MHA in cases where sections 2 and 3 of the MHA are not made out. This is ultimately a legal issue and, based on the expertise and knowledge of lawyers working in this field, we offer an outline and discussion of the issues that should be considered in order to identify deprivation of liberty and determine eligibility for DoLS. The lawyers' views about freedom to leave suggest that Code of Practice guidance on identifying deprivation of liberty may be questioned as not being compliant with the ECHR, highlighting the practical difficulties that clinicians are faced with in using this legislation. The introduction of a subjective determinant has important implications, suggesting that deprivation of liberty could be nullified if a patient who lacks capacity to make decisions about admission is happy and ‘consenting’ to stay in an environment where, objectively, the treating team are controlling leave. If this view is accepted by the courts in future case law, it suggests that an important clinical intervention might involve assertive attempts to improve patients' subjective experience of hospital or care home admission.
DECLARATIONS
Footnotes
Acknowledgements
We thank Paul Bowen, Ulele Burnham and Aswini Weereratne from Doughty Street Chambers, David Hewitt from Weightmans LLP, and Robert Robinson and Lucy Scott-Moncrieff from Scott-Moncrieff, Harbour and Sinclair Solicitors for their time and legal expertise, without which this study would not have been possible. We also thank the patients and ward staff.