When an older person is admitted / detained under section 2 and is subsequently placed under a DOLS Authorisation AND is still being treated within the Ward environment (medication, observation PRN and restrictions) is this appropriate? Is detention under Section 3 more appropriate ? Thereby enabling access to Section 117 Aftercare ?
Thanks You
In this scenario where an older person is still being treated on a ward with medication, PRN, and restrictions a Section 3 MHA is likely more appropriate than DoLS. This ensures legal clarity, access to aftercare under Section 117, and stronger patient rights. Courts have clarified that MHA takes precedence over the MCA when both could apply
If the person is being treated for a mental disorder in hospital, and the MHA criteria are met, Section 3 should be used rather than DoLS.
If the patient is objecting to (or resisting) mental health treatment in a mental hospital, they are not eligible for DOLS and should be detained under the mental health act.
The Safeguards cannot be used as the mechanism for protecting the rights of a person if:
(a) to give a patient medical treatment for mental disorder,
Section 3 after gives access to section 117 therefore care is funded with LA limits post section
I have found dols variable dependent on assessor
And my husbands first nursing home ignored it when we wanted a night away which dols stipulated we could they refused
His current nursing home works with us we have had 2 nights away and go out often subject to risk assessment
This is an unusual scenario but - who knows - could be happening every day. Nobody would care anyway.
It would be important to examine the clinico-legal reasons for dropping the S2 and moving to DOLS.
DOLS does not allow treatment as defined by S145 and S58 (collectively) of the MHA 1983, or any sort of treatment. But as I always say ‘people get away with what they can’ because the chances of being caught are very low.
It all depends on whether the individual is of capacity to accept various restrictions or limitations of their Human Rights and also is of capacity to consent to whatever observations and medication. Nobody would want me to investigate the robustness of any associated documentation - that’s why I don’t/won’t work for the CQC.
Nothing in law prevents a patient from being of capacity to consent to psychiatric medications. How? That happens every day thousands of times at GPs surgerys and psychiatric OPCs.
In LD services it is not uncommon for patients not to be of capacity to decide on psychiatric medications and a proper best interests decision could cover meds for behavioural disturbance, when such patients are under DOLS (in the community). But that has nothing to do with DOLS powers.
But where a LD becomes a mental disorder for the purposes of the MHA then prescribers need to be cautious that DOLS plus best interests treatments may be falling into S145 defintion of treatment. In such scenarios the element of compulsion may become more prominent.
The following webinar may be of assistance - Shedinar: the (dread) MHA/MCA interface – Mental Capacity Law and Policy
A post was split to a new topic: How to argue against MCA detention, in favour of MHA detention