Prone restraint in mental health hospital

My partner and I recently finished Season 4 of Orange is the New Black (highly recommend), and one episode particularly resonated with me. In fact, it made me cry, and I’m not a crier.

The episode centred around an inmate named Poussey, who, in the midst of an ‘incident’ within the prison, was forcibly held to the ground by a prison guard for an extended period of time, whilst the prison guard was being tackled by another inmate.

My partner had no idea what the result of this act would be. I knew, through my work within Public Law and mental health, and I knew that the use of such restraint can bring about death.

Prone restraint is where a person is held to the ground in a face-down position and is physically prevented from moving from that position. Too much force and the result can be fatal. The concern is that prone restraint can result in dangerous compression of the chest and airways, thus placing the person being restrained at a huge risk.

The majority of NHS Trust policies on the use of such restraint suggest that it ought to be used only as a last result, following unsuccessful attempts at de-escalation. Unfortunately, I am aware of incidents where prone restraint appears to be used as a first port of call, often on those with severe learning disability, and often in mental health hospital.

I appreciate that professionals within such a setting must keep themselves, the service user and other patients’ safe, but it is frightening that use of prone restraint remains commonplace, and remains the norm, despite policy suggesting that it should be used only in the most extreme circumstances.

There is a reason that prone restraint ought to be used as a final option – in 1998, a 38 year old gentleman named David Bennett was held in the prone restraint position by 5 staff members for a 25 minute period, resulting in his death. An independent inquiry (bbc article 18/06/13) found that Mr Bennett died as a direct result of prolonged face-down restraint and the amount of forced used by staff.

Did this end the use of prone restraint? No. According to Mind (2013), there have been 13 reported incidents of restraint related deaths in the UK since this. This figure is only for those detained under the MHA 1983 and included only those deaths which were actually reported. The figure is therefore likely to be higher, particularly taking into account the years following the study.

Shockingly, as someone living and working in the North East of England, Northumberland Tyne and Wear NHS Foundation Trust responded to a freedom of information request from Mind and stated that, in 2011-2012, prone restraint was used 923 times.

This is not uncommon, however, with Stewart et al (2009) finding that manual restraint is used 5 times per month on an average mental health ward. According to Mind, one Trust which responded to an FOI request stated there had been 38 incidents of prone restraint, whilst another said there had been over 3000 incidents.

Mind’s recommendation from the 2013 research was, of course, that the government ought to end the use of face down physical restraint.

Has this happened? Of course it hasn’t. The figures speak for themselves. Prone restraint continues to be used, on a large scale, and for as long as this is the case, there will be more and more restraint related deaths.

Not only ought the risk of death be enough for professionals to use every possible de-escalation technique available, but the use of such restraint can cause physical injury and psychological harm. Mind (2013) provided a quote from someone who had experienced such restraint; “it made me feel like a criminal, like I had done something wrong, not that I was ill and needed to get better”.

The free reign to use prone restraint is frightening. The fact that it is used to varying amounts across the country is worse, because it suggests either that instances of prone restraint often aren’t reported, or that staff aren’t provided with the same training across the board. I fear that both are correct.

Those detained under the MHA 1983 are in hospital, usually, for assessment and/or treatment. The mental health hospital ought to be viewed as a place of safety, where care is provided to those in crisis. The possibility of attending hospital and dying there due to an excessive use of force by those who were supposed to be caring for you, is a frightening concept, but it is one that is all too real.

Patients need to feel safe in the hospital environment. The use of prone restraint must be ended.

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Mental health service closures

Whilst working within mental health and mental capacity law, I’ve found that there are many situations which really strike me personally. In particular, I have developed an interest in wrongdoings within mental health services, because I can see the situation from the perspective of the outpatient service user, having been involved with services since 2012.

Access to services is a huge issue at the moment. I was rather lucky in that I was able to gain access to services quite quickly through IAPT, though, once my course of CBT had ended, I was basically left in the dark.

I read something on twitter the other day from a service user, stating that he’d missed an appointment because the letter from the hospital had taken so long to arrive. I mean, in 2016, how is that still happening? It may seem like a small thing to some, most likely to the hospital, but these appointments, in times of both crisis and calm, provide routine and stability for service users.  When I was making regular trips to appointments with mental health services, it gave me a sense of comfort just to know that I was doing something. Had I missed an appointment because of the appointment letter being sent by carrier pigeon, particularly with my anxiety when it was at its worst, that would have been one of the worst things that could happen; from the outside looking in, it seems that mental health services can’t empathise with this or many others’ experiences.

Access to inpatient services is where this real division of interest is shown. We’re all aware of the distinct lack of beds within mental health units, which are needed by those who are usually in crisis and cannot be treated effectively in the community. Yet despite this known issue, more and more mental health units and hospitals are closing every year.

According to The Kings Fund, ‘Mental health under pressure’ (November 2015) 40% of mental health trusts experienced a reduction in income in 2013/14 and 2014/15. The analysis by The Kings Fund confirms what many of us interested in this area already know – there are more and more people being detained under the Mental Health Act (a 9.8% increase in 2014/15 compared to the previous year); a lot of these actually receive poor care, particularly when in crisis (only 14% of patients say that they received appropriate care in a crisis); the number of beds is decreasing, meaning that services cannot meet the demand; and, despite this, mental health units continue to be closed down. So, what is the outcome from that? People are either left without the help that they need, or are detained in a hospital somewhere far from home, far from normality, and far from comfort. According to a Freedom of Information request by the Community Care and BBC News, 4,447 patients were sent out of area by 37 NHS mental health providers in 2014/15. 88% of the 4,447 were sent out of area due to beds being full.

I have been looking in to closures of mental health units and, even if you just give it a quick google, you can see the scale of the problem. By way of example, in October 2015 Bootham Park Hospital, York’s only public adult mental health hospital, was closed following a report by the CQC, with 5 days’ notice being given. How many people did this affect? 30 inpatients and 400 outpatients. When something like this happens, particularly with such short notice, it must be like being abducted, and ripped away from everything you knew. In February 2016, Outpatient services resumed, after a huge amount of local pressure. However, for those patients in crisis, requiring inpatient care, they, and their families, are expected to travel 50 miles.

50 miles isn’t the worst it could be. There are instances of people being placed 300 miles from home. But, when these patients are very unwell, to be placed in hospital in a completely new area, in my opinion, surely can’t help them in the short term. Whilst detained under the Mental Health Act, a patient can be granted section 17 leave from their Responsible Clinician. I can’t imagine how difficult it must be to enjoy leave in an area you have never been before. Leave is a way of readying patients for discharge, but, certainly for those with anxiety, going out in the community in an unknown area would be incredibly daunting, and could even be a bit of a step-back. It’s hard to see how having leave in a town 100, 200, 300 miles from home is going to prepare you for living in your community.

Another example of mental health unit closures, resulting in patients having to travel, and one that is actually happening right now, is The Welland Centre, in Market Harborough. I came across this closure in an article a couple of weeks ago – The Welland Centre, which provides adult community health services, hosts clinics for up to 450 patients. That’s 80 patients each week and approximately 4000 appointments each year, and patients will be expected to travel elsewhere to access the help that they need.

One patient of the service has developed a petition to save the service – https://petition.parliament.uk/petitions/131744 – which currently has 764 signatures, one of those, of course, being my own. Should the Welland Centre close, patients would be expected to travel for one hour and a quarter to reach the service. For those who do not drive, like myself, this is two bus journeys. When I was having regular appointments with mental health services at Warwick Uni, I had to travel by bus from where I lived in Leamington Spa onto campus. Sometimes, when I was feeling particularly low, I simply couldn’t do it. I had so much anxiety around the University campus, the bus, the students, that I physically couldn’t get on the bus to get to the appointment sometimes. I probably never would have attended any appointments if I had to take two buses.

Now, putting my legal hat on, one big issue for me in situations involving closures of services, is that patients, families, and those who simply have an interest, do not know that the law can assist. When people are informed that their service, usually a service they have used for many years, is closing, they can feel alone. People generally don’t know (and, to be honest, why would they) that there are possible ways to legally challenge the decision to close the service – to go back to Bootham Park hospital in York (https://www.theguardian.com/society/2016/mar/14/the-nhs-mental-health-hospital-closed-with-just-five-days-warning), lawyers are representing the families of some former patients of the hospital and are seeking a judicial review of the “forced closure” of the service.

Judicial review is where a case is taken to the High Court, and it is argued that a decision of a public body is unlawful. This could be that the body has acted beyond its powers, or has not taken something into account etc. Obviously, there is no guarantee that any challenge would be successful, but I think that it is vital that there is something that can be done legally, at least to try to stop any decision to close a service.

That is why I really enjoy working within this area of law. Despite all of the issues with mental health services, and despite the general thought that lawyers are cold and can’t help real people, I like to think that in this area we actually could make a difference and, if a difference can’t be made, it is always nice to say we tried.

 

Welcome back

So, it has been a loooong time since I have posted a blog, and there are many reasons why.

I think one of my last posts surrounded my attempt at positivity after discovering that the law firm I worked for in mid 2015 was making redundancies. To cut a long story short, I loved the job and had been getting to grips with mental health law – the firm shut down, and I was left with no clue what would happen next.

I felt so strongly about my wish to work within mental health law, but, at the time, there was a distinct lack of such roles in the North East. I had loved working within mental health law; representing the vulnerable and ensuring that their rights are upheld, I feel, is one of the most important things that we, as a society, ought to do.

In November 2015, everything took a turn for the better, and I took a role at a national law firm in Newcastle. I have been there since that date and, whilst I didn’t think it was possible to better my previous job, it is amazing. The role is Public Law Paralegal, meaning that I assist directly on cases, and get to have a lot of client contact, which I love. I hadn’t had experience of public law, though my role within it centres largley around Community Care and Mental Capacity. I feel just as passionate in this role, as, again, I view it as being incredibly worthwhile. I do also still get to do some mental health work, which, obviously, I love!

Mental Capacity is an incredibly interesting area of law, and involves those who lack capacity to make a certain decision for themselves, and a decision being taken in their best interests. I’ll post a lot more about this in later blogs.

So, another reason I haven’t posted is because life has simply gotten in the way. I have just finished first year of the Legal Practice Course, having taken (and aced may I say) a module in Mental Health Law, and, now I have gotten fully to grips with my new job, I feel that I’ve got a good balance. I’ve even taken on afew voluntary roles, which I’m really happy about – currently, I work with Parkinson’s UK, Tiny Lives and Rethink Mental Illness.

I hope that you can forgive my disappearance, and I’m looking forward to writing more blogs and getting to grips with all things mental health, mental capacity, and law.

Thanks for having me back!

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Mental Health and Exercise

Whichever mental health charity or self-help website you visit, there is always a common factor – exercise is good for your mental health. Ever since I was diagnosed with generalised anxiety and panic disorders in 2012, I have been scouring the internet looking for ways to not only understand mental health, but to aid my medication through natural remedies.

Unfortunately, exercise has never been a strong point of mine. I really, really am not a fan. So, even though I was seeing constant advice on the benefits of exercise in mental health, I didn’t bother. Surely exercise couldn’t help THAT much. I think my downfall here was that I saw the word ‘exercise’ and immediately presumed that that referred to a 10 mile run, which I am most definitely not capable of. I did find that a short walk to the shops helped to clear my mind and, when my anxiety was at its worst, going for a ten minute walk at a certain time each day gave me structure and was a little bit of an escape route from the stress of the future.

It has only now dawned on me that these small ten minute walks count just as much as a 10 mile run – exercise is great for mental health, but that doesn’t mean that you need to push yourself to become a bodybuilder. Whatever you feel capable of, perhaps like me it is only a ten minute walk, it really can help.

I read an article today entitled ‘Going on nature walks is good for mental health’. Coincidentally, I have just returned from a lovely long weekend away with my incredible partner. We went to the Lake District and some of the scenery was simply breath-taking, really putting all of life’s worries and anxieties into perspective.

lakes

The article focused on a study which has found that taking a walk in a natural environment can bring about positive changes in the brain and may help fight depression. Previous studies had already found a link between walking in a natural environment and an improved mood and decrease in anxiety.

It seems that I had been doing the whole ‘exercise’ thing right this whole time, I just didn’t know it. So, if like me you do not plan to become an Olympic athlete any time soon, take a 10 minute walk. And, if you decide to walk for longer, then all the better. Sometimes we just need to get away from the hustle and bustle of life, a nature walk can do you the world of good and really does take very little effort. My advice would be to set a time slot, one that you do not deviate from, in which you can go for a walk – whether to the shops, to a beauty spot or just to the park – and make this time slot ‘your time’.

Because my anxiety and panic disorders truly came to fruition during University, I had very little structure at that time. Exams were over, there were no lectures to go to and I really was left to my own devices. That is dangerous, because if you have nothing (or think you have nothing) to get out of bed for, then that’s where you’ll stay. During cognitive behavioural therapy, my therapist stressed the importance of structure and suggested that I have a set routine each day. This way, it would make me less panicked about the unknown, as I had a plan of what I was going to do each day and when I was going to do it – my therapist liked the idea of having meals at certain times of the day, waking up and going to sleep at the same time each day. That was difficult to do at University and I didn’t really listen to my therapist as much as I should have, thinking that going to sleep at 10pm one night and 3am the next surely couldn’t impact upon my mental health. Now that I have entered the big bad world of employment, there is a natural structure to my day – I have to get up at the same time each day, I take my lunch at the same time each day and I get home from work at the same time each day. So I have naturally created a routine for myself and it really helps a lot!

I certainly believe that structure is important when living with mental health problems. At the time of my diagnosis, I simply did not have the willpower or the energy to create a routine for myself. I have found that I have gradually slipped into a routine and that it has been the best thing possible for my mental health. Exercise can easily be factored into this routine and that can be as little or as much exercise as works for you.

Personally, I find walking to be very calming and, if the study that I have read today is correct, I had better find some more beautiful places to walk – I’m not going to complain about that!

Community Treatment Orders – What are they and are they effective?

It is possible for someone who has been detained under the Mental Health Act 1983 (MHA) to be discharged from hospital and placed on a Community Treatment Order. CTOs were introduced in late 2008. Effectively, a CTO is the least restrictive option for providing treatment, as it allows people to be monitored whilst remaining in the community, as opposed to being detained in hospital further.

A CTO can be placed on a patient detained under section 3 or section 37 MHA 1983. These are the only sections under which someone may be placed on a community treatment order. To be clear, section 3 lasts for an initial period of six months. This can be renewed for a further six months and then yearly following that. Someone will be placed on section 3 if they are well known to mental health services or have been in hospital before, or if they have previously been detained under section 2 for assessment. Section 3 is for treatment. Section 37, on the other hand, is a hospital order imposed by a court, with the recommendation of two doctors, instead of a prison sentence. Section 37 lasts for an initial period of six months, renewable for a further six months, and subsequently yearly.

The Responsible Clinician (the person responsible for the person’s treatment) can discharge a patient from hospital and provide supervised treatment whilst the person is in the community. Prior to granting a CTO, the Responsible Clinician must ensure that certain conditions are met: the person has a mental condition that requires medical treatment; treatment is required for the person’s health or safety, or for the protection of others; the person is able to continue their treatment in the community; the person can access the right treatment in the community; and, it is justified that the person can be recalled to hospital if necessary. The Responsible Clinician ought also to consider the risk of a deterioration in the person’s condition were they not detained in a hospital.

If necessary, the Responsible Clinician can recall the person back to hospital. Recall could occur if the conditions set out prior to discharge are not complied with or if the person becomes unwell again. One condition may be that the person must continue taking their medication, or must reside at a certain place.

If recalled back to hospital, a person can be held for up to 72 hours whilst what should happen next is deliberated. It may be that the CTO is revoked and the person can be placed back on the section that they were on prior to discharge into the community. Alternatively, if all conditions are complied with and the person is deemed fit to be fully discharged by the Responsible Clinician, then the person can be discharged from the CTO and the conditions of that will no longer operate.

The purpose of the CTO when introduced was to end the ‘detrimental cycle’ of patients being discharged from hospital, stopping taking their medication and ending up back in hospital. In effect, the CTO could be viewed as a practice run for discharge where the risk of relapse and re-detention is (hopefully) reduced. According to the Minister of State when discussing supervised community treatment, “the power of recall provides the means to tackle relapse, and to avoid its potentially adverse consequences for the patient or someone else. Recall to hospital allows patients to be treated quickly and to return to the community straightaway if it is clinically safe to do so”.

It is possible for the Responsible Clinician to grant the patient a section 17 long-term leave of absence, rather than a CTO, and the Responsible Clinician must ‘consider’ whether the patient should be dealt with using long term leave. Research (T Burns et al) has actually shown that, when compared with patients who are on section 17 leave, the imposition of CTOs does not reduce the rate of readmission to hospital, with around one third of each group being readmitted within a year. The findings of this study backed up two previous studies that had also found no benefit from CTOs in reducing readmission. This conclusion has, however, been disputed by a number of people.

The study came at a time when most mental health services were reorganised thus the care of those participating in the study was passed to psychiatrists who were not necessarily familiar with the trial. It also did not assess to what extent people took their prescribed medication – something which, of course, is incredibly important when looking at re-admission.

CTOs are established in over 70 jursidictions and have existed since the 1980’s/90’s in most parts of North America and Australasia. The law on CTOs does not explicitly state what standards should be used to assess their effectiveness, though frequency of contact with out-patient services, victimisation, arrest, mortality and quality of life tend to be used in studies testing their effectiveness.

In 2008, when CTOs were first introduced, Lawson-Smith et al stated that “Community Treatment Orders should arguably be used on a restricted group of patients who suffer from severe and relapsing mental illness, who quickly disengage and are repeatedly re-admitted’. It has become clear that CTOs are not used on a limited basis at all – according to statistics from The Health and Social Care Information Centre, between 2008 and March 2014, the number of people subject to CTOs has seen an increase of 206%. In that same period, the number of people detained under section 3 MHA 1983 has decreased. The link between this reduction and the increase in CTOs appears more than coincidental, given that patients subject to a CTO can be recalled to hospital, rather than re-assessed under the MHA.

In 2009, The Guardian published an article entitled ‘Hazards of a Health Safeguard’. The article included a lady who was subject to a CTO, one of the conditions of which was that she had to have blood tests every two months to prove that she had been taking her medication. She stated that doing so made her feel like “a laboratory rat”. Whilst it is understandable that those subject to CTOs will feel some frustration, the conditions are there for a reason – for the health or safety of the person or for the protection of others. If someone is discharged entirely from hospital and does not take their medication, they will simply end up being re-admitted. These CTOs operate to try to curtail that trend and, whilst CTOs have received stark criticism, the one major study on them (mentioned above) is in fact fraught with criticism. And, with regard to how those subject to CTOs actually feel about them, there appears to be no research at all on this in the UK.

Research on the effectiveness of CTOs in improving the quality of life of those subjected to them has been conducted in other countries – it looked at 752 people and concluded that “results from the trials showed overall that compulsory community treatment was no more likely to result in better service use, social functioning, mental state or quality of life compared with standard ‘voluntary’ care”. The research did, positively, find that “people receiving compulsory community treatment were less likely to be victims of violent or non-violent crime”. We should perhaps not place too much weight on this research, given that the quality of evidence for the main outcomes of the trials were recorded as ‘low to medium grade’.

At this stage, the only conclusion that can be drawn regarding the effectiveness of CTOs is that further research is needed. There is strong opposition towards CTOs, yet many professionals view them as necessary – placing a patient on a CTO means that they cannot deteriorate to the point where it is necessary for them to spend a long period in hospital. If the patient does not meet their conditions then they can be recalled to hospital, stopping them from going for X amount of months without their medication and, in most cases, exacerbating their mental health issues.

Those who are placed on a CTO, like the woman mentioned in The Guardian article above, may view the conditions placed on them as unnecessarily restrictive. It is understandable that it may seem this way, given that the patient is not returning to ‘normality’ per se. However, being able to live in the community rather than a hospital has to be viewed as much less restrictive. In effect, it is giving patients a chance and I don’t see how that could be a bad thing.

The Conservatives are in. Is mental health out?

The Care Quality Commission has found that the mental health care system is ‘struggling to cope’ after reviewing the help provided to people in ‘mental health crisis’ (including those who are suicidal, or are having a severe panic attack or psychotic episode). Last year, 1.8m people sought help for a mental health crisis.

The review by CQC found that 42% of patients did not get the help that they needed. Patients were asked about the attitudes of staff towards them when they presented with a mental health issue, and it was found that staff in A&E did not fare well. 5% of all A&E attendances are recorded as relating to mental health problems, yet only one third of patients attending A&E thought that they had been treated with compassion and warmth. Attending A&E is a daunting experience in and of itself, and to add the extra layer of feeling shut out by staff and looked down upon because you suffer from a mental illness and not a broken leg, will surely only make those suffering with mental health problems less likely to access the help available.

CQC’s Mental Health Lead, Dr Paul Lelliott, has stated that these findings must ‘act as a wake-up call’. According to the Chief Executive of Rethink Mental Illness, Mr Mark Winstanley, “for too many people, going to A&E is the only way they can get care if they’re in a crisis”.

Mental health receives only 13% of NHS funding, even though it accounts for 23% of the disease burden. Care Minister Alistair Burt has stated that improving mental health care is his priority, and that the government is trying to tackle the problems in mental health through its new treatment targets and extra funding.

The Conservative manifesto this year included numerous promises relating to mental health care : increase mental health spending; improve access to talking therapy and ensure that therapists are available throughout the country; introduce new waiting time standards; pregnant women should have access to mental health support both during and after pregnancy; ensure that veterans with mental health problems receive proper care; provide health and community based places of safety for those detained by police under s136 MHA 1983.

Rather memorably during the election campaign, the Conservative parliamentary candidate for Cambridge suggested that those with mental health issues should wear colour-coded wristbands to identify their conditions. According to the candidate, this wristband system could improve the system.

Thankfully, this idea was dismissed as ludicrous pretty much straight off the bat – not only is the idea of a colour code for mental illness entirely unworkable, given that mental health issues do not tend to group into one single illness (most wristbands would probably be rainbow coloured), but it would add so much more stigma to those struggling with mental health problems. It would be adding to the idea that mental illness is not viewed as on a level with physical illness – you can see that someone has broken their arm but you cannot see that someone is bipolar and, for some reason, this scares people.

Our focus needs to be on ending stigma, not adding to it. The Conservative manifesto itself, whilst thankfully not mentioning a colour code system, included that “People who might benefit from treatment should get the medical help they need so they can return to work. If they refuse a recommended treatment, we will review whether their benefits should be reduced”. Thus the first mention of mental health in the conservative manifesto is related to benefit sanctions – fantastic. The manifesto appeared to view those with mental health issues as a burden on society, with a return to employment being viewed as the ultimate goal.

With Jeremy Hunt as Health Secretary, we can hardly be surprised – Mr Hunt once stated that he did not understand how Alastair Campbell could be depressed as he looked like he had a ‘great life’. The Mental Health Policy Group estimates that 2 million more UK adults will experience mental health issues by 2030. With the Conservatives set to make £30bn of cuts, £12bn of which will be welfare cuts, and with no clear breakdown of where exactly these cuts will come from, the worry is that mental health will be overlooked once more. Let’s face it, the Conservatives don’t have a great track record when it comes to mental health – in 2011, the coalition boasted about its ‘No Health Without Mental Health’ strategy document and just one month after the document was published, the National Mental Health Development Unit was thrown in the garbage. Now, the Conservatives no longer have the Lib Dems to keep them steady and I certainly worry about what the future may hold for our mental health care system.

It is safe to say that I am not the biggest Tory supporter but the evidence does speak for itself. Over the course of the Coalition, referrals to Community Mental Health Teams increased by 20% and yet there was a £600m cut to mental health trust budgets. Not only this but, since 2011, the number of available mental health beds in inpatient facilities has dropped by 12%.

BBC news has stated that data from 75% of trusts shows that, from 2014/15 to 2018/19, income is expected to fall by 8% in real terms. NHS England correctly noted, however, that no accurate predictions can be made until the government sets out its spending plans.

Only time will tell whether Mr Cameron will stick to his promises but my fear is that he will not. I hope that I am wrong.

Deprivation of Liberty Safeguards

The number of people living with Alzheimer’s who are subject to deprivation of liberty safeguards (DoLS) is on the increase. DoLS are intended to ensure that residents in care homes and hospitals are protected in a way that does not deprive them of their liberty (if a person lives in supported living or their own home then it is possible to deprive them of their liberty in their best interests, but this must be done by applying directly to the Court of Protection). Effectively, DoLS authorise a deprivation of liberty when it is necessary to do so for a patient or resident who lacks capacity to consent to care or treatment in order to keep them safe from harm.

It has recently been reported that DoLS are linked to delays in families being able to bury their loved ones when they have died in a care home. This is because regulations require state inquests into such deaths, even when the cause of death is fairly clear – the deceased who was subject to the safeguards is considered to have died ‘in state detention’ thus an inquest is needed and the release of the body is delayed.

The Independent on 28th May 2015 interviewed a relative of someone who had been subject to the safeguards and who was forced to wait for 2 months before being able to bury the deceased. That relative stated “who actually benefits from these safeguards? It’s a box ticking exercise and I’m just so glad it’s finally over”.

There has been a dramatic rise in DoLS applications over the past year – The Independent quotes that 113,000 applications were made and that 36% of these were granted. That same article also includes a quote from George McNamara, Alzheimer’s Society, who states “DoLS are important for people with dementia to make sure they are not wrongly deprived of liberty but the current system is complicated and there is lack of awareness about the process”. I agree entirely with this statement and hope that this post will bolster people’s understanding of DoLS and their beneficial uses.

Deprivation of Liberty Safeguards are part of the Mental Capacity Act 2005. A deprivation of liberty is described as occurring when ‘the person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements’.

For a person to have capacity, they must be able to : 1) understand information relevant to the decision they want to make 2) retain that information long enough to allow them to make a decision 3) weigh up that information to come to a decision 4) communicate that decision.

The ECtHR has clarified what may amount to a deprivation of liberty. Examples of such deprivation include: restraint so that someone may be admitted to hospital; medication given against the person’s will; staff making all decisions about a person; and staff restricting a person’s access to family and friends. The point is that, whilst doing these things does deprive someone of their liberty, it is done for the person’s own benefit – therefore a DoLS is something that legally authorises the deprivation of liberty. If the examples above took place without a DoLS in place, then the person’s human rights would have been breached. Thus, under the MCA restraints and restrictions are allowed to be used when in a person’s best interests, but DoLS are needed if this restriction and restraint amounts to a deprivation of liberty.

If a relative were in a care home/hospital, and you felt that they were being deprived of their liberty but there is no authorisation for such deprivation in place, then the first port of call would be the care home manager – always attempt to resolve things from the bottom and an agreement could be reached re more freedom for your relative. If the care home manager does not think that an authorisation is needed, then you would approach the local authority and ask them to investigate whether a deprivation of liberty has taken place.

It is against the law to deprive someone of their liberty without there being an authorisation in place.

The recent case of Re AJ [2015] clarified that a local authority, when it knows that a person will be entering a care facility on a permanent basis, should make an application to the court or carry out a DoLS assessment. Effectively, authorisation should be obtained before any deprivation of liberty occurs. If an authorisation has not been made prior to a person’s move into a care setting, then an urgent authorisation could be made by the care home/hospital manager when the person arrives, although Re AJ [2015] confirmed that such an authorisation should last for no more than seven days, save in exceptional circumstances, and that an application for standard authorisation ought to be made at the same time.

The assessment process for a standard authorisation involves at least two independent trained assessors – one mental health assessor and one best interest’s assessor. If the pair do not think that all of the conditions have been met then the deprivation of liberty will not be authorised. This procedure is intended to protect the patient or resident in question. Part of the assessment process is that family, friends and paid carers who know the person well be consulted so that they may give suggestions as to how the person may be supported without depriving them of their liberty.

Should the care home resident or hospital patient concerned have no family or friends, they can utilise the support of an IMCA (Independent Mental Capacity Advocate) during the assessment process.

Following authorisation, a Relevant Person’s Representative (RPR) should be appointed as soon as possible. It will tend to be a family member or friend who will fulfil this role but if no one will take on the role on an unpaid basis then the supervisory body will have to pay someone to be the person’s RPR. In such a case, it is likely that this will be an advocate. If the RPR is unpaid (which would be the case if it were a friend or family member) then both the person and the RPR are entitled to the support of an IMCA.

An authorisation for a deprivation of liberty is intended to last for the shortest time possible, with the maximum authorisation time being 12 months, during which time regular checks must be carried out to determine whether the authorisation is still needed. If the authorisation is no longer necessary, then it must be removed. The patient/resident and their RPR are able to challenge the deprivation of liberty in the Court of Protection at any time, and can also require the authorisation for the deprivation to be reviewed at any time. The review would determine whether the criteria to deprive the person of their liberty is still met and, if so, whether the conditions need to change.  The home or hospital should do all that it reasonably can to explain to a detained person and their family what their rights of appeal are.

Useful info on DoLS can be found at:

http://www.rcpsych.ac.uk/healthadvice/problemsdisorders/deprivationlibertysafeguards.aspx

http://www.scie.org.uk/publications/ataglance/ataglance43.asp