Hi I have a question related to DOLS as to equipment which is medically prescribed but after nearly 30 year we have health concerned they are DOLS. Person is totally dependent and a wheelchair with specialist posture seating and for safety had a lap belt and foot straps otherwise they will fall out of chair. two weeks ago apparently a DOLS should have been done in 1999 when 16 years of age. and carried on throughout life.
The person has capacity to consent to the belt but now it’s become a huge issue. Anyone have any advice on this as it seems common sense and safety has left the building
Numerous issues here, I think.
Perhaps the most immediate one is the person’s capacity. If they have capacity to consent to the restrictions, they cannot amount to a deprivation of liberty within the meaning of Article 5.
So that would be the end of it.
However, even lacking capacity, a key element of determination of a deprivation of liberty is the principle that a specific act or piece of equipment does not in itself “equal DoL”.
The Guzzardi principles talk about the difference between restriction of liberty and deprivation of liberty as being one of degree or intensity, not nature or substance.
In other words, a locked door does not in itself create a deprivation of liberty, neither does a lap strap or bed rails.
Consideration needs to be given to the overall care plan and the cumulative impact of all the restrictions which are part of that plan (type, duration, effects, manner of implementation).
But the bottom line is - Article 5 will only be engaged (requiring an authorisation, either through DoLS or the Court) if the person is unable to consent to the care plan, if it would otherwise amount to a deprivation of their liberty.
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Hi Suzanne, following on from Steve’s points you might find the guidance provided in the Understanding when someone is deprived of their liberty | The Law Society helpful in challenging anything that has been stated. If the person is residing in a care home which i have assumed is the case, you should refer to Chapter 7 which covers care homes.
Dear James
The person lives at home and has quadriplegic spastic cerebral palsy, is totally immobile hoisted for all transfers and dependent on specialist wheelchair. It’s a bit of a surprise to find out that since aged 16 this should have happened and they are now aged 41. I appreciate you answering as now health board making a big fuss trying to say something that they were responsible for. Apparently nobody has documented any of the belts, bedrails, they are even mentioning a prescribed posture management system which helps his posture at night .
regards
Suzanne
Dear Steve
Thank you the person has capacity there must be a procedure to follow but there is no transparency here to help resolve what is a simple question which should have happened every time equipment is changed. It seems as if it is perfectly ok to prescribe this equipment by health and then not do the necessary paperwork.
Regards
Suzanne
Hello Suzanne
If there is no doubt about the person’s capacity to consent to the arrangements, then all care, treatment and support is provided on condition that the person has consented. This is no different to any other care and treatment provided to people who have capacity to consent.
Not wanting to be accused of teaching you to suck eggs, but the procedure to follow is the consent process, which obviously involves appropriate communication about “the nature and purpose of the proposed [intervention], the last of these entailing an understanding of the benefits and risks of deciding to have or not to have one or the other of the [interventions], or of not making a decision at all” (quote from a Court of Protection judge regarding relevant information)
Appropriate and proportionate recording of the discussions with the individual is standard good practice.
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Dear Steve
It’s very difficult when professionals dont tell you this Dols and consent form has to be signed. This should have been done when he was 16 I understand there are times when people are restricted for no good reason, it seems common sense has left the building as I have written and asked what the concerns are, so that they can be addressed, so far no answer. I have tried to google to see if there is a list of equipment that might have DOLS implications. As not to hoist him from bed into his specialist seating when he wants to get up is DOLS. Not to use the specialist equipment we have to benefit his condition would be depriving him. When we get in a car it is law for all to wear seatbelts, when you put a large heavy wheelchair containing a person into a car they already in our case have a lap belt and foot straps. Then you need to secure the chair safely to the car and ensure they have a seatbelt on. if you dont then you DOLS him on hospital appointment, any social activity going to a rugby match, or Wimbledon as he cannot be transported. Is there a list Local authorities and ICB use for DOLS
Regards
Suzanne
Hi Suzanne, based on everything you have said it does appear that the ICB have got themselves into a bit of a pickle here and Steve’s guidance is incredibly helpful, but just to support what Steve said (and because you mentioned lists/guidance) this is what the Law Society explains (I provided the link earlier), which is what i would hope the ICB is following for their guidance:
2.17 Even if a person is objectively confined, their circumstances will not fall within the scope of Article 5 ECHR if they have validly consented to the confinement. For
purposes of English law, a person can only give valid consent to being subject to
circumstances amounting to a deprivation of their liberty if;
2.17.1 (If they are under 16), they have the Gillick competence to do so (see
paragraphs 4.16-4.17); or
2.17.2 (If they are 16 or over), they have the mental capacity to do so applying (now)
the test set down in ss.2-3 MCA 2005.31
Hope that in some way helps, but in essence, if the person can consent and does consent to the support you have described there would be no deprivation of liberty in the circumstances that you have outlined.
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Yes Suzanne, what James said!
Basically a “DoL” authorisation and valid consent are mutually exclusive.
If the person has capacity to consent to the arrangements, then going down the “DoL” route is a total non-starter.
It sounds like the ICB needs someone to clarify the law with them.
Not wanting to confuse matters further, but IF the person lacks capacity to consent, and is living in their own home, then the Deprivation of Liberty Safeguards (“DoLS”) process could not be used (can only be used in registered care homes and hospitals) and it may require an application to the Court of Protection for authorisation of the care plan.
BUT from all you have said this is not the case here.
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DOLs only applicable if the person is under constant supervision and control in a CQC placement and lacks capacity to consent to this. Nothing to do with equipment or treatment.
If P is in their own home (or anywhere which is not CQC registered placement) you cannot use DOLS, use COP if they lack capacity to consent to 24 hour supervision and and control in this instance.
Irrelevant of where P is the decision to use equipment can be done via MCA alone not Dols as DOLS only applicable when acid test is met. If they lack capacity to consent to the equipment then use MCA and best interests. If they have capacity to consent to equipment then there is zero issue just continue.
Hi Sophie
P lives in his own adapted bungalow with his mum and dad. P is funded by continuing health care and nhs is throwing all this up before a review to see if package is working. Starting use of a lap belt is DOLs P has used nhs supplied wheelchairs for 39 years. Similarly bed rails to prevent falling out onto floor P is totally immobile. I would say if after 41 years that this is now being brought up it is the nhs failures if these pieces of prescribed medical equipment is now being questioned. P does have capacity if he is asked does he consent to a lap belt he answers yes as I will fall out otherwise. I have asked over a week ago to list the DOLs they are trying to put into place. No answer from Icb
Can DOLs apply in your own home, as we are not obstructing anyone from coming and resolving them.
Or is a public body just trying to confuse parents by misquoting the law.
Regards
They are definitely mis interpreting the law. Firstly you cannot have dols in own home. Secondly dols isn’t relevant for equipment anyway so even if in care home it still wouldn’t apply. And thirdly he has capacity to consent and therefore definitely not relevant.
If he lacked capacity to consent to the equipment then yes he would need a best interest decision and possibly COP involvement (but this still wouldn’t be dols as that is something completely different about supervision and control in a placement NOT restrictive measures/ equipment/ treatment).
I advise that you (or whoever is best placed likely an OT) complete a formal capacity assessment around the equipment clearly stating they have capacity and consent. Send this to LA clearly stating that as P has capacity and is consenting no other steps are necessary (and would in fact be abuse to do anything else as this would be highly restrictive and removing autonomy of someone with capacity).
Dear Sophie
Solicitor I am using disagrees with your interpretation
But that’s what law is about opinions not fact.
I am grateful to everyone I have had contact with. As it points me in direction maybe wrong one
Regards
Suzanne
Not clear what exactly the solicitor disagrees with, but it’s important that any legal advice you get is from a solicitor who has mental health/mental capacity expertise.
The Law Society has a ‘find a solicitor’ function which allows you to search by specialism (mental capacity is in the drop down list) and area.
https://solicitors.lawsociety.org.uk/
I do thank you all for your time and responses, when you know and live with someone and you know they know their own mind as to what they want to happen and what they dont want to happen. I have found in our experience when the person was not asking for something he has capacity. The moment he asks for something then he must have yet another capacity test to prove to those people yes I do have capacity. I do not think that is why this MCA 2005 came about to strip people of their capacity, when they know they have it is about the worst thing one person can do to another. Just think of the loss of one of the greatest minds of this century Stephen Hawking if he had not found a way to communicate. There is a device out there somewhere which would allow son to put his thoughts into words so they could never be doubted again.