It started with coffee in the lounge of the most exclusive and opulent club in the UK, the House of Lords. I was there meeting Baroness Elaine Murphy and Professor David Jolley – two old age psychiatrists who share my passion for better care of older people with mental illness. We had a meeting with the Law Commission later that morning about a planned revision to the Deprivation of Liberty Safeguards (DoLS) legislation, so we had arranged this get-together, amongst the oak panelling and the portraits, to plan what we were going to say…
The Deprivation of Liberty Safeguards were intended to ensure that people who do not have mental capacity and are held against their will (e.g. someone who is trying to leave a care home or hospital but who would be at risk if allowed to do so) are safeguarded from abuse and unlawful detention. However, DoLS legislation, introduced as part of the otherwise excellent Mental Capacity Act, has become widely regarded as a complex, over-inclusive and unachievable instrument.
Take a patient of mine as an example. Let’s call her Mary. Mary is 90 and in hospital following a fall. She has had dementia for two years and finds it difficult to understand she is in hospital. A few times she has tried to leave the ward and had to be coaxed back by the nurses. No force was involved, but following recent case law, Mary and countless thousands like her with dementia now have to be detained under DoLS – an arduous process involving six forms and assessment by three different individuals. A year ago, society would have trusted the caring and professionalism of the nurses looking after Mary. Now anyone who lacks capacity and who is not allowed to leave somewhere (even if they are not trying to) must be subject to DoLS. In April 2014 there were 4,100 applications for DoLS, whereas in March 2015 there were 13,000 – an increase of over 200%!
This is why we felt that this meeting with the Law Commission was so important. The commission are drafting advice for parliament on the re-write of DoLS legislation and wanted to hear our views, and we were keen to ensure its review was properly informed.
Having drunk our coffee and planned our comments, we walked to Petty France, to the far more utilitarian building of the Ministry of Justice to meet with the Commission. Elaine began with introducing us and thanking the group for their time, and then proceeded to explain that not since the Lunacy Act of 1890 has such a stigmatising piece of legislation affected people with mental illness. David went on to give a passionate argument that the current law disproportionately affects people with dementia and places a highly bureaucratic and costly legal process in the way of caring. He used Beauchamp and Childress’ ethical framework to highlight that there are few benefits and much harm from the existing DoLS process.1 He also focussed on the fact that coroners now have to hold an inquest when someone dies whilst subject to DoLS, which means unnecessary court time as well as delay and distress for families.
I then fed-back some of the concerns from the Faculty of Old Age Psychiatry at The Royal College of Psychiatrists (I am the current chair, representing a membership of over 4,000 psychiatrists). Currently there are six separate assessments for a DoLS application, of which up to three are paid for by social services, amounting to a cost of several hundred pounds per application. We felt that the process was frequently unnecessary, cumbersome and costly, and diverted funds that should be spent on care. Another unintended consequence was that more people were being unnecessarily detained under the Mental Health Act because of confusion between the two sets of legislation. Finally, we felt that it did not achieve what it was intended to do – protect vulnerable people.
I outlined some possible ways forward that would reduce the bureaucracy and cost. These six assessments could be reduced to one or two, for example. I also suggested introducing a graduated process in which most people are just assessed and placed on a register by care professionals but there is a more elaborate, independent process when detention is contentious. I also asked for greater clarity on the difference between the Mental Capacity Act and the Mental Health Act.
The Commission listened. Thankfully they had similar ideas about the problems with the current legislation and the potential solutions. They are about to release a consultation and they stressed that they are still open to suggestions and have a track record of listening, so look out for the consultation and respond to it if you can.
The Commission made it clear that the UK has to have a DoLS-type process because of European Court rulings, so a stigmatising mechanism of “state detention” for people with dementia and other conditions in care homes and hospitals will remain, but hopefully one less costly for the individual and the country. It is important to emphasise that the Law Commission can only suggest legislation; it is up to parliament what is enacted. Let’s hope parliament sees sense, and quickly!
1. Beauchamp and Childress’ Four Principles is one of the most widely used frameworks for medical ethics issues. Its Four Principles are Respect for autonomy, Beneficence, Non maleficence and Justice.
Dr James Warner
Medical Director, Red & Yellow Care
Chair, Faculty of Old Age Psychiatry, RCPsych
National Professional Advisor, CQC