All covertly medicated patients on dementia ward moved from DOLS to s3 -- why?

Law and practice Mental Capacity Act
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This came up in a managers hearing around less restrictive option for a client on a elderly dementia ward

DoLS have just suddenly changed the way they operate on the ward and seem to be being much more harsh with the criteria for patients to be eligible for DoLS, meaning that the consultants are having to use section 3 as their only option, even if it isn’t completely suitable, because some sort of legislation is required to keep them safe. DoLS are now telling the ward that if the clients are on covert medication, then they need to be under the MHA, so a lot of patients have needed to be moved onto a section 3 and will remain on this until discharged, because most of them do require covert meds.

Why are DoLS changing the way they work without any apparent change to guidance or legislation.

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It is probably because someone has spotted that DOLS may not have been beng used properly in the past.

If the MHA could be used instead the Mental Capacity Act says that DOLS cannot to be used to keep someone in hospital for mental health treatment if they are objecting to being in hospital or ro receiving some or all of the treatment. In deciding whether someone is objecting, assessors has to have regard to all the relevant circumstances, including {among other things) the person’s behaviour.

Presumably people are being given medicine covertly because they’d refuse to take it if they knew about it. Refusing to take medication is very likely to be behvaiour which indicates an objection. If so, they are probably not eligible for DOLS.

This isn’t, incidentally, really anytgung to do with what is the less restrictrive option. Being detained under DOLS is every bit as restrictive as being detained under the MHA. But it does affect the safeguards patients get - for example, if they are detained under the MHA their medication will have to be approved by an independent second opinion appoimnted doctor (SOAD).

The “objection” rule is there essentuially so that patients who are getting treated in a mental health hospital against their wishes get the same safeguards whether or not they have legal capacity to withhold consent.

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It is not the case of the Dols being used properly in the past.
This person isn’t showing any behaviours that warrant concern it is why it was asked why a section 3. Does not know they are in hospital just doesn’t like taking medication .They are considered stable.
My question was Why are DoLS changing the way they work without any apparent change to guidance or legislation When in the past covert medication was allowed under Dols

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It’s not about whether covert medication is allowed under DOLS, but about whether DOLS is allowed where à patient is being covertly medicated.

In the scenario you describe, DOLS probably isn’t allowed, for the reason I tried to explain on my previous post.

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This is not my area of expertise, but i wonder whether Department of Health, Code of Practice: Mental Health Act 1983 (2015), Chapter 13, “Figure 5: Options grid summarising the availability of the Act and of DoLS”, is where you may find your answer.

As Richard had suggested, “Refusing to take medication is very likely to be behaviour which indicates an objection.” and then read that alongside what the MHA Code states in the reference above:

Individual objects to the proposed accommodation in a hospital for care and/or treatment; or to any of the treatment they will receive there for mental disorder [my emphasis]

+

Individual lacks the capacity to consent to being accommodated in a hospital for care and/or treatment

=

Only the Act is available

Would be interested to hear any other views though.

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My understanding is Manchester University NHS Foundation Trust v JS [2023] has pushed the agreement so that where anything may amount to an objection for a patient without capacity to consent it requires that the MHA be used. So further clarifying AM v SLAM NHS Foundation Trust [2013] for non-capacitous objecting patients. So taking Richard’s point that its about which restrictive framework we use ,we can then consider that Judge Burrows states:

The MHA is purpose built for such a specialised cohort of people and deals with the particularly difficult decisions that have to be made for them. These are all dealt with by s. 28, and schedule 1A paragraph (2) Cases A to D.

57. Jane is in none of those categories. However, she may fall into Case E of that Schedule. Since the main part of this provision is a table, I will include it in this judgment:

Determining ineligibility

2. A person (“P”) is ineligible to be deprived of liberty by this Act (“ineligible”) if—

(b) P falls within one of the cases set out in the second column of the following table, and

(b) the corresponding entry in the third column of the table—or the provision, or one of the provisions, referred to in that entry—provides that he is ineligible.

Status of P

Determination of ineligibility……..

Case E

P is—
(a) within the scope of the Mental Health Act, but
(b) not subject to any of the mental health regimes.

58. For someone to be “ineligible” under Case E the relevant person:

(a) has to be within the scope of the MHA 1983, and

(b) paragraph 5 has to be satisfied. [i.e., the patient must object to some or all of the mental health treatment

I am unclear how it can be argued that a person is not objecting to medication if it is being administered covertly. Wouldn’t the reason its being administered covertly be they may/would object if it was done overtly? Otherwise why aren’t we discussing this with them.

I am not naive to the challenges of working with people with moderate to advanced dementia as I practiced as OPMH social worker for 13 years but that doesn’t change the relevant legal principles.

How would this be characterised as anything other than an objection? If we are characterising it as an objection then the MHA would be the more appropriate mechanism for covertly medicated patients and the actions taken by your local DOLs team would appear appropriate for somebody on a psychiatric ward receiving treatment for their dementia.

Not a lawyer so please don’t take this as legal advice. But as an AMHP I would be sympathetic to the actions taken by the local DOLs team and would be bearing the above in mind when asking them for a clarification of their reasoning were they from my local authority.

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