This April, the Deprivation of Liberty Safeguards (DoLS) comes in to play. Well, it'll be May before we're using them, but there's invariably a bit of a false start with these things.
What's it mean?
If I use the Mental Health Act 1983 and someone's admitted to hospital under this Act for compulsory assessment and treatment, there're lots of safeguards. I can't detain them, for a start. I've never detained anyone in my life. All I can do is make a medical recommendation, which a social worker (all our AMHPs are social workers) then takes and if they reckon it's the right thing to do they give it to hospital managers to receipt, then the hospital managers detain the patient in their hospital. No one person makes the decision, for treatment under Part IV (i.e. compulsory treatment) there also has to be the agreement of another doctor. For some treatments the patient and another doctor have to agree. Some mental health treatments can't even be done no matter what doctors wish, if the patient has so stated. On section 3, the nearest relative can discharge the patient. If I want to place someone with dementia in a care setting under section 7, the nearest relative mustn't object. If the patient doesn't want to be detained, they can appeal to a Mental Health Review Tribunal who can discharge them. The MHRT is a powerful and scary body, they're a court, can hold doctors in Contempt and (other than additional "recommendations" they suggest which I'd duty bound to listen to but technically don't absolutely have to do) what they so goes.
With advocacy, nearest relatives, specialist (section 12 approved) doctors, a second doctor making recommendation for admission, an Approved Mental Health Professional making the decision on whether compulsory admission's right or not, limits on treatment and rights of appeal, the Mental Health Act 1983 seems to have the right balance of framework to ensure mentall unwell folk can get the treatment they need and deserve within a framework of checks and safeguards and scrutiny to protect their liberty and rights.
So far, so good.
The Mental Capacity Act 2005 is different. In many ways it's much simpler. It also has sound principles, stated explicitly right at the start in section 1. It has advocacy inherently embedded in decision making. It has collaborative involvement in decision making enshrined in section 4 (Best Interests decisions).
The difficulty is that it's so broad.
It's how the 17 year old care assistant, in a residential home, decides if Mrs Stainforthe should have a bath this morning, even though she can't say yes or no to that.
It's for non-mental health matters; it's how the solicitor decided if I was a capacitated adult when instructing them in conveyancing when I sold and moved house.
It's for health decisions. It's for financial matters. It's for social choices.
As a broad bit of legislation affecting any assessment of decision making (capacity) and subsequent health and social welfare care within someone's best interests, by anyone involved in their care, it's a massive bit of legislation.
What can you do with it? Why, anything in their best interests (that a Donee, Deputy, court or Advance Decision don't preclude). Really, pretty much anything. Choice of where they live. choice of medication. Choice of who, when and by who they're cared for. Choice of when, where and what surgery they'll have.
So if someone's an incapacitated adult (within the meaning of the Mental Capacity Act 2005) and has dementia and needs to be in a care home, is indifferent to this (and neither can give nor with hold consent, since they lack capacity, but equally they're not actively opting in to or refusing 24 hour care), they can be placed within a 24 hour care home. A best interests meeting is held, then under section 5 they receive care in a care home.
Great, despite not being able to consent, they still get the care they need. This is decided by a team, with involvement of family and all parties.
But, if they don't want to be in a care home, how do they get out? There is no tribunal or appeal process. There is no automatic review process. The family might have objected but the best interest considered then discounted their view and placed their relative in permanent care. Someone's in a locked EMI residential unit, forever, with civilains placing them there and no judicial process to get 'em out. Okay, family could go to court for a Declaration, but the confused patient who doesn't want to be in there's not going to chirp up and progress such a mechanism.
Enter the Deprivation of Liberty Safeguards. Before someone's deprived of their liberty, our Primary Care Trust will have to give Authorisation. Hurrah, libery is safeguarded. Excpet, out PCT didn't know about this, even last December when I met with them. It's a statutory obligation, they have to do it, but even now in January they've no staff and no framework for this work. Each application to the PCT will involve 6 assessments. They have no idea who or how they'll do this.
It's their duty. We don't have the resources to do this work. I don't want to do this work, through conflict of interest. "I'll bundle this old lady into a care home. what, we need to make sure it's for the right reasons and not just 'cause it's the easy option? Okay, let's get a review and scrutiny and authorisation - who'll do that - oh, I will!"
But I see the PCT being clueless in the assessment process. So, like capacity assessments, I see a whole slew of referrals to my door, "for an mental health assessment," so we can do most of the work for them. Ho hum.