DOLS Older People and MHA practice

Law and practice Mental Capacity Act
1

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

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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.

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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:

  • the person objects to being in this hospital in order to be given treatment for their mental disorder or to be given some or all of the mental health treatment and
  • no donee (person given rights under a Lasting Power of Attorney) or deputy appointed by the Court of Protection has made a valid decision to consent to each matter to which the person objects and
  • the person meets the criteria for being detained under Sections 2 or 3 of the Mental Health Act (SCIE)
  • The MCA however cautions (63) that it cannot replace the Mental Health Act, or be seen as an optional ‘less restrictive option’ to the Mental Health Act. It is spelled out that nothing in the MCA authorises anyone:

(a) to give a patient medical treatment for mental disorder,

4

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