Catholic Medical Quarterly Volume 66(1) February 2016

Submissions

CMA(UK) Response to the Law Commission consultation on deprivation of liberty safeguards

Editorial note
Many of our members have expressed grave concern about the working of the Mental Capacity Act. One of the places where the Act is at its most dysfunctional is in the safeguards around
Deprivation of Liberty.
Here, the need for good treatment of someone with mental incapacity will often mean that if a person tries to leave the ward then they must be protected from doing so. To authorise this clinical staff must complete dozens of pages of forms,
distracting them from the clinical care they are charged with delivering.
After a judgement by Lady Hale in 2014, it is clear that even people in ITU for a short while are described as being “deprived of their liberty” when in fact they are being given good care.
The House of Lords admitted in early 2014 that DoLS legislation is “not fit for purpose” and the Law Commission consulted in 2015 on reform of the Mental Capacity Act.
The consultation included within its scope revision of Advance Statements and Advance Decisions to Refuse Treatment.

This submission was made to the Law Commission.

About the Catholic Medical Association.

Medical symbol The Catholic Medical Association (UK) is a registered charity which represents Catholic healthcare professionals, hospital chaplains and managers involved in clinical service. We provide guidance on ethical questions to our members and in submissions to government and professional bodies and represent Catholic Health Care professionals in the UK.

Background

We welcome this opportunity to respond to the Law Commission Consultation on Mental Capacity and Deprivation of Liberty (DoLS). Our members have told us that DoLS are cumbersome and time consuming to complete and that they have concerns that the current DoLS provide little or no benefit in terms of effective safeguards for vulnerable adults.

Deprivation of liberty and a balancing of rights.

We agree with the Commission that DoLS are seen as unduly cumbersome and legalistic. This is only likely to increase with the growing numbers of elderly patients with cognitive impairment. There has been an undue reliance on Article 5 at the expense of Article 8 rights to personal and family life; Article 3 rights to freedom from inhumane and degrading treatment and the Article 2 right to life itself.

We agree with the Commission that there is undue legalism when the deprivation of liberty is taken out of the context of the need to safeguard the physical, psychological and spiritual needs of the individual in a way that involves the individual’s family, friends and carers. We are also concerned that an unduly legalistic standpoint is likely to overlook the particular needs and circumstances of the individual in a wide range of concrete circumstances.

We would therefore be concerned if the very practical and necessary provisions in the Mental Capacity Act, especially clause 25, were not preserved. These provisions make allowance for the applicability and validity of advance refusals of treatment in a way that takes into account the concrete circumstances of the individual, especially when there is a question of providing life-sustaining treatment or care that is necessary to prevent a serious deterioration in a patient’s condition.

Patients in ITU may require formal and complex processes of detention.

Locked wards for people with dementia and delirium are not the only setting where recent UK judgements state that patients in medical wards who are compliant with care and not trying to leave as well as people in ITU have to be detained using the DoLS law, to enable their treatment, require the complex DoLS process to be used. The CMA contends that this interferes with good care and that by involving the state in a process of detention.

There is a concern that since deprivation of liberty is part of a spectrum which includes physical restraint, the circumstances requiring DoLS may be extended to include what is often regarded as routine and necessary medical treatment. For example, as the Commission rightly points out, general anaesthesia might be regarded as a form of constraint and hence a deprivation of liberty. It is also necessary to guard against undue conflicts of interest. Local authorities may not only be involved in DoLS assessments but may either be responsible for the provision of funding on the one hand or require payment from those who are self-funding.

We are concerned at the increasing exclusion of family members, relatives and carers from decisions about long term care provision. We would prefer an informal approach wherever possible without the involvement of independent advocates, assessors and the courts to oversee clinical decisions that have hitherto been the province of multidisciplinary teams working in conjunction with the patient’s families and personal representatives. We believe that greater emphasis should be placed on individual needs within a family setting and with due consideration for the known and would be wishes of the patient in a family setting. At the same time, we are concerned that the tendency to choose the less restrictive option may be to the detriment of the patient. For example, a person with severe dementia who has been incontinent and who is refusing personal care, must either be changed (with restraint if required) or left to sit in their own excrement.

DoLS as they currently stand.

We strongly agree with the Law Commission and House of Lords view that DoLS legislation as it currently stands is not fit for purpose. The Law Commission is right to state that DoLS have been time-consuming , cumbersome and costly but often with little obvious benefit.

We also agree that the Law Commission is right to suggest that the term Deprivation of Liberty frames good clinical care in negative terms. Moreover, seeing DoLS in isolation may fail to take into account the concrete circumstances of the individual. For example those with severe cognitive impairment may need to be taken into care for their own safety and their current circumstances may already mean significant constraints on their liberty and freedoms.

Key Proposals

The CMA supports the suggestion that the term DoLS be replaced by the less pejorative terms Restrictive Care, Supportive Care and Protective Care.

However, it is important that the proposed method for approving Restrictive Care will be less labour intensive, costly and cumbersome than the present system. Patients will suffer if the current complexity of DoLS is not reduced so as to allow time and resources to be available to provide patient care.

We also submit that the Article 2 right to life is not sufficiently prominent in the current proposals and is easily overshadowed by too much emphasis on Article 5.

Proposals on extension of Advance Refusals and Statements

We echo the view of the Law Commission that the impact of Advance Decisions to Refuse Treatment (ADRTs) have been limited. This is not unexpected, as ADRTs are made at a time when a person does not know what situation they will be in at a future time when they lose capacity. ADRTs are essentially advisory. We welcome the view that more broad based advance statements of wishes could be used to advantage. For example, patients may wish for oral food and fluids to be offered for as long as possible. Others may wish for ordinary medical treatment be continued provided it is not excessively burdensome, thereby accepting one’s mortality but rejecting any suggestions that life be deliberately ended.

We would therefore strongly suggest that the Law Commission be careful to maintain the safeguards surrounding the validity and applicability of ADRTs. We would also suggest that the deprivation of liberty should be assessed in terms of a balance of rights. It is important that the Article 5 rights of individuals are balanced against their rights to family and personal lives, to freedom from inhumane and degrading treatment through neglect and poor clinical practice and in certain circumstances the right to life itself.

Catholic Medical Quarterly