Concurrent DOLS & Section 2 MHA recommendations

Law and practice Mental Capacity Act
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Patient admitted for General nursing hospital with little insight or capacity for treatment DOLS issued

Patient when MOFD was referred through for MH assessment

Section 2 recommdations issued

Hospital licence does not allow a full section until a Mental Health bed has been identified

Patient had been waiting over 30 days on a General Ward until a bed was eventually identified, recommendations had to be renewed 3 times

Could the DOLS & Section 2 Recommendations legally run concurrent or did one supercede the other

DOLS still in place to stop patient from leaving hospital

Can anybody clarify the legal aspects of this issue

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This is a regular occurrence which I need clarity on

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By “Hospital licence does not allow a full section” you presumably mean the hospital’s CQC registration? I may be able to help on that issue but email me at work, mat.kinton@cqc.org.uk. CQC’s advice for many years has been that general hospitals who occasionally use the MHA should add such use to their registration. It has also taken the position that it will respond proportionally to any hospital using the MHA prior to getting appropriate registration, where this is to avoid patient harm. So it may be that the situation you describe just shouldn’t happen and the initial s2 application should have been accepted: the general hospital may be being too cautious in declining to be the detaining authority. But happy to discuss and look at the specifics here offline. What I say here is in a personal capacity.

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A DOLS authorisation doesn’t end automatically because s2 papers are signed. (In fact, it doesn’t automatically end even if the patient is admitted under s2 - but it would have to be suspended, and would end after a further 28 days if the patient hadn’t been discharged).

However, as Mat says, the fact that a s2 is being sought in these circumstances might suggest that the current DOLS is unlawful. It is likely to be unlawful if it’s effectively being used to keep the patient in hospital primarily for mental health reasons and the patient is objecting.

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Thank you for your response

I have taken your comments on board

Then a DOLS is only in place for the patients best interests as a legal framework under General treatment

Once the patient no longer requires General treatment and is MOFD and the only reason the patient is still in a General bed is for a Mental Health bed to be identified and transferred , the only legal framework to keep the patient in hospital then is the recommendations for a Section 2 put in place by the AMHP and the relevant psychiatric Doctors

Am I right

Thanks

Lavinia

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I’m afraid it’s impossible to say in the abstract. It depends on the particular circumstances.

There may be cases where it would be right and proper to keep using DOLS while waiting for a mental health bed (especially if the patient isn’t objecting to being there).

But what DOLS can’t (normally) be used for is to keep someone in hospital in order to treat their mental disorder if they are objecting to being there or to any of the mental health treatment they’re getting. In those cases, the MHA must be used instead.

The fact that the patient is only in hospital because they’re waiting for a mental health bed suggests you may well be keeping them there for mental health treatment. But it’s not possible to say that for sure - it depends on the specific facts of the case. Sorry.