Key points
- There is still confusion around people’s legal rights under the MHA, Mental Capacity Act (MCA) and Deprivation of Liberty Safeguards (DoLS), with some services making subjective interpretations of guidelines to deprive someone of their liberty.
- With the introduction of the Liberty Protection Safeguards, we would welcome clearer guidance about which legislation to use and make decisions.
In our 2018/19 report, we highlighted the challenges for professionals and patients in understanding people’s legal rights under the MHA, Mental Capacity Act (MCA) and Deprivation of Liberty Safeguards (DoLS), and how these worked together. In this, we called for the codes of practice of these laws to be updated and to provide clear guidance for professionals on these complex interface issues.
We continue to see situations where services are making subjective interpretations of guidelines to deprive people of their liberty under the MHA and DoLS. For example on one remote visit we heard that patients were initially admitted under the MHA, but then an urgent DoLS application was made as this was felt to be the least restrictive option. However, we heard that after the initial urgent application had expired, DoLS authorisations were rarely completed meaning that people were being deprived of their liberty unlawfully.
You told us that all patients were under the Deprivation of Liberty Safeguards (DoLS) and that patients were often admitted under the MHA, with the section later rescinded by the responsible clinician and a DoLS application made. You told us that it was the view of the clinical team that this was the least restrictive option.
We heard from staff and the MHA legislation lead that following the expiry of the urgent DoLS application and extension after 14 days, the full DoLS assessment for the standard authorisation were rarely, if ever, completed. We were told that patients would then remain on the ward having regular reviews by the clinical team to check for any change in their capacity status. For patients whose presentation changed and became actively wanting to leave the ward or refuse treatment, an MHA assessment would be undertaken and the MHA applied if indicated.
One staff member was unclear about the duration of an urgent DoLS.
Older people’s acute ward, March 2021
It is unclear in what sense deprivation of liberty can be less restrictive under one form of legislation than another, although each piece of legislation has different safeguards and rights. In light of the introduction of the Liberty Protection Safeguards, we would welcome clearer guidance about which legislation to use and make decisions that are in the best interests of patients and not for their own convenience.
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First-Tier Tribunal (Mental Health)
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Monitoring the Mental Health Act in 2020/21
Contents
- Summary
- Foreword
- Service provision during the pandemic
- Person-centred care during the pandemic
- Ward environments
- Leaving hospital
- Tackling inequalities
- The MHA and our concerns for key groups of people
- The MHA and mentally disordered offenders
- MHA interface with Deprivation of Liberty Safeguards
- First-Tier Tribunal (Mental Health)
- Restraint, seclusion and segregation and the Independent Care (Education) and Treatment Reviews
- Our work in 2020/21
- Appendix A: Monitoring the MHA as a part of the UK’s National Preventive Mechanism