DoLS in hospital, and DoLS or the Mental Health Act

Do DoLS apply in hospital?

Yes. DoLS cover hospitals as well as care homes, and physical treatment as well as psychiatric. The DoLS Code says it must be followed on acute wards as well as in mental health units (DoLS Code 1.9).

The managing authority is the NHS trust or foundation trust running the hospital, or the registered provider of an independent hospital (Sch A1 paras 176-177). The supervisory body is the council where the patient ordinarily lives, or else the council for the hospital's area (para 180).

The 2008 Code is out of date here. It names primary care trusts as supervisory bodies for hospitals, but councils took over in England in April 2013.

Is a patient on a medical ward deprived of liberty?

Often not, after AGNI. The Supreme Court said that, ordinarily, someone in hospital for treatment who'd be stopped from leaving while confused isn't deprived of liberty. The presumption is the same for an unconscious patient, unless they're in fact detained or have shown they'd object (AGNI, para 145).

Someone who can't move and can't express any view has no physical liberty to lose (para 142). ADASS adds that the Ferreira exception still applies. A patient at immediate risk of dying anywhere but hospital, treated as they would be if they could agree, isn't deprived of liberty.

It's different when restrictions are imposed against the patient's will. Repeated attempts to leave, restraint, sedation to manage behaviour, one-to-one observation and restricted visiting all point towards a deprivation of liberty (DHSC; ADASS). Weigh them with the AGNI test.

Restraint, section 6 and when DoLS are needed

Brief restraint to give treatment, where it's necessary to prevent harm to the patient and proportionate, is covered by s6 of the MCA. Locking a door against immediate harm is unlikely, on its own, to be a deprivation of liberty (DoLS Code 2.9-2.10). See restraint under s6.

Frequent, cumulative and ongoing restraint is different. If it has gone beyond what s6 allows, reduce it or seek authorisation (DoLS Code 2.12).

Urgent authorisations on a ward

The ward gives the urgent authorisation, on the trust's behalf as managing authority, and requests the standard one at the same time. The decision should be taken at a senior level, with the family's views where you can get them (DoLS Code 6.13).

Don't use one for delirium you expect to settle quickly with treatment, or for a patient in the emergency department who'll be gone within hours (DoLS Code 6.3-6.4). See urgent authorisations.

Section 4B: life-sustaining treatment and vital acts

Section 4B lets you deprive someone of liberty while you seek a decision from the court, if three conditions are met:

• A question about whether you're authorised under s4A, which covers DoLS and court orders.
• The purpose, wholly or partly, is to give life-sustaining treatment or do a vital act. A vital act is one you reasonably believe necessary to prevent a serious deterioration in their condition (s4B(5)).
• It's necessary to give that treatment or do that act.

Life-sustaining treatment is treatment that, in the view of a person providing health care for them, is necessary to sustain life (s4(10)). Best interests still apply (DoLS Code 5.13). Section 4B only works while a court decision is being sought. The MHA Code says it isn't available where the person is ineligible under Schedule 1A (MHA Code 13.53, footnote 5).

Who's ineligible? Schedule 1A on the ward

The full rules are on MHA or MCA. In deciding whether someone 'could' be detained, assume no treatment could be given under the MCA (Sch 1A para 12(5)).

Deciding whether a patient objects

Look at their behaviour, wishes, feelings, views, beliefs and values, now and, where still relevant, in the past (Sch 1A para 5(6)-(7)). It doesn't matter whether the objection is reasonable (DoLS Code 4.47). If you're in doubt, treat it as an objection (MHA Code 13.51).

Behaviour that looks like objection may not be aimed at the admission or the treatment. Then it isn't objection for this purpose (DoLS Code 4.46). Needing restraint on a psychiatric ward is likely to suggest objection, though (DoLS Code 2.13).

DoLS or the Mental Health Act: choosing between them

There's one overlap. The patient has a mental disorder needing hospital treatment, meets s2 or s3, lacks capacity to consent to admission, doesn't object, and would be deprived of liberty. Then both regimes are open, and the Code doesn't steer you either way (MHA Code 13.49, 13.60).

Don't choose by habit, and don't assume either is less restrictive (MHA Code 13.58). Favour the MHA if capacity may return or fluctuate, or if they may then refuse. The same goes if you'd need a power to bring them back if they left (MHA Code 13.54; DoLS Code 4.48). Record why you chose (MHA Code 13.60).

Never admit someone informally who lacks capacity to consent and would be deprived of liberty (MHA Code 13.53). If an informal inpatient tries to leave and an MHA application ought to be made, s5(2) holds them for up to 72 hours while it's arranged.

Detained patients who need physical treatment

A detained patient can't be under DoLS. Treat an unrelated physical illness with their consent or, if they lack capacity, under the MCA (MHA Code 13.38). See physical illness in detained patients.

If the physical treatment would itself amount to a deprivation of liberty, such as an enforced caesarean section, the route is the High Court's inherent jurisdiction (ADASS forms guidance).

A worked example

He's objecting and being stopped repeatedly, so after AGNI this is likely to be a deprivation of liberty. He's eligible for DoLS even though he objects, because he's there for physical treatment (Sch 1A para 5). The ward should give an urgent authorisation and request a standard one.

If his mental disorder needed hospital treatment in its own right, and he met s2 or s3, it would be different. His objection would then rule DoLS out, so the MHA would apply.