With a draft bill due out this year on the law of mental health and deprivation of liberties safeguards, Amina Uddin examines some tragic reasons why it is sorely needed
Promoting and safeguarding a person’s autonomy is one of the fundamental rights entrenched in national/international legal systems.
Therefore, to infringe on such rights it is imperative that the utmost consideration and thought is needed to develop legislation to protect such rights.
The law governing deprivation of liberties safeguards (DoLS) has caused uncertainty and confusion. Understandably, this area of law is complex, especially in the case of hospital settings.
The Supreme Court decision known as Cheshire West (2014) addressed the uncertainty to a degree by providing a test (called “the acid test”) in deciding whether a person in a care home or hospital was being deprived of their liberty. Two elements need to be established to satisfy the test that someone is being so deprived:
- Continuous (or complete) supervision and control, and
- lack of freedom to leave the setting
In the case of patients in intensive care (ICU), the Law Society’s practical guide on DOLS states that most patients in an ICU who lack capacity to make decisions about their care may meet the acid test criteria.
However, the majority of people who lack capacity to make decisions about their care and treatment can be treated in their best interests under Section 5 of the Mental Capacity Act 2005.
Restraint can be used, provided that the person delivering care reasonably believes it is necessary to restrain the person to prevent harm to them and that the act is a proportionate response to the likelihood of the person suffering harm/seriousness of harm. The difficulty arises in identifying when the level and intensity of restraint amounts to a deprivation of liberty.
The guide also states that “when considering whether a patient is ’free to leave’ for the purpose of the acid test the focus should not be on whether a patient is actually physically capable of leaving, but rather upon what actions hospital staff would take if for example family members, properly interested in their care, sought to remove them from hospital.”
However, the guide then suggests that further judicial consideration is likely to be required.
R (on the application of LF) v HM Senior Coroner for Inner South London  EWHC 2990 (Admin)
This was a tragic case whereby the deceased, Maria, suffered from Down’s Syndrome, severe mental disability, limited mobility and required 24 hour care. Maria died while in intensive care and an inquest into her death was opened. After the inquest the Claimant (her sister) made an application for judicial review and proposed that:-
- Maria was in state detention at the time of her death and thus:
- the coroner was bound to conduct the inquest with a jury.
It was concluded that at the time of her death, Maria was not in state detention on the basis that she had not been expressly prevented or prohibited from leaving the hospital; she was not formally deprived of her liberty by authorisation, nor was she detained under the Mental Health Act 1983, therefore it was also argued that the inquest did not have to be heard by a jury.
The judgment illustrates the court’s struggle to apply the acid test to the case as it would involve a “wholesale extension” rather than an application of the principles laid out in Cheshire West. Such an extension would be mechanistic and move away from the mischief Cheshire West had been seeking to address.
If such a mechanistic approach is used in such a context, it would mean that every ICU would need to spend time and money on establishing a system for lawfully depriving patients of their liberty for treatment and care. It would divert treatment teams from providing treatment and care to spending considerable time on administration, which would be detrimental to the therapeutic relationships involved.
The effect of the word “compulsorily” in the definition of state detention gave rise to an intense focus on the context of the case and semantics of legislation before the court. It was argued that the word “compulsorily” limited detentions to those imposed on an individual so as to override their freedom of consent. Therefore, it was wholly artificial to say that at the time of her death, Maria was compulsorily detained as her freedom of choice had not been overridden and nothing had been imposed on her. She was admitted into hospital to receive lifesaving treatment and not with the purpose of depriving her of her liberties.
On the facts, the court decided that Maria had not been “compulsorily detained” or “in state detention” whilst in the ICU before she died and therefore the inquest did not need to proceed before a jury.
This is a significant decision which will have practical implications for hospitals as well as hospices and other medical settings. However, the court did say that cases may arise where patients in intensive care would be deprived of their liberty. Thus, each case will need to be considered on a fact-sensitive basis.
A consultation by the Law Commission was opened on July 2015 on the law of mental capacity and DoLS. The consultation paper concluded that the DoLS are ‘deeply flawed.’ In relation to hospitals the proposal is to use a separate scheme altogether, reverting back to proper care and treatment planning by doctors in the best interests of the patients concerned.
This would seem to be a sensible and pragmatic response to a situation where the present DoLS regime does not sit easily with what are often short periods of time in hospital where the reason for admission is the need for treatment, often on an urgent basis. A final report setting out the Law Commission’s recommendations and a draft bill will be published this year.
Amina Uddin is trainee solicitor for Ridouts LLP.