mental capacity act and deprivation of liberty, news and case law update - ben troke - october 2016

@BJhealthlaw

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Case law update

6 October 2016

@BJhealthlaw

• news

– DoLS statistics

– DoLS in dispute

– the Law Commission

– DoL in ICU

• case law – AG (covert medication)

• topic – MCA / DoL and discharge decisions

• NHS Digital – 28.9.16

• 2015/16 - c196,000 applications received

– 2014/15 - 137,500

– 2013/14 - 13,700

• monthly level of applications seems to

have leveled off (c17,000 pcm)

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Percentage granted / not granted

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“it has also been noted anecdotally that

more applications tend to be received from

a care provider in the month after

inspection by the CQC”

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• more than 42% of applications made in 2015/16 had not been

processed

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• including more than 1/3 of the applications that were made in

April 2015 - ie 1 in 3 applications have gone the whole year

unprocessed

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• average case not yet reviewed was 215

days old

• oldest unprocessed referral is c800 days?!

• only 29% of applications were dealt with

in <21 days (down from 56%)

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• judicial review being brought by 4 local

authorities of the alleged failure of

government to fully fund DoLS system

• permission to proceed to a substantive

hearing has been granted

• watch this space!

@BJhealthlaw

• no news since May 2016 paper revised

scope and approach

• still expect publication of proposals by

end of 2016

• implementation date likely to be affected

by Brexit and other demands on policy

and parliamentary attention – maybe

2018-2019??

@BJhealthlaw

• Ferreira v Coroner of Inner South

London

• listed in Court of Appeal mid

December 2016.

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• Mrs AG - 92 y/old with Alzheimer’s

• care home under a DOLS authorisation

• lacked capacity re: care, treatment and

residence

• covert medication - thyroxin and

diazepam

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• no provision of ongoing review of covert

use of medication

• best interests decision making process

without family member, RPR, or other

representative for AG

• covert medication should be “exceptional”

• prior best interests decision on this should

involve family and professionals

• plan must be explicit in the records

including a plan for ongoing, regular

review

• if no agreement – refer to Court

• likely to be at least a “contributory

factor” to a DoL

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• “possibly monthly” reviews

• more regular review – more likely DoL

authorised for longer

• any change of covert medication should

trigger a review

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• “alternate medication, similar in

prescription, may not do so; a change in

prescription in strength/dosage nature and

effect will almost certainly do so”

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• NB – this is a holistic review – not just

medical indication, but (re)consideration

of best interests

• best to plan ahead and get DoL authorised

with contingencies or else may need re-

referral

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• duty of care to patient

• discharge should be safe

• BUT – a patient cannot demand an

inpatient stay and so not a ‘best

interests’ decision – regardless of

capacity

@BJhealthlaw

• no ‘right’ to occupy a bed - possession

proceedings

• Criminal Justice and Immigration Act

2008 s119-120

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• where P is on NHS premises; not for

medical treatment (includes when fit for

discharge after treatment); and causing a

‘nuisance / disturbance’

• criminal offence and power for police

office / authorised officer of the Trust to

remove them

@BJhealthlaw

• practicality / publicity

• and where to remove them to?? That is a BI

decision, and no power to convey to X

• often held up not only by dispute about

discharge package / placement with P /

family, but also dispute over funding

responsibility – what will be offered?

• Trust often left ‘holding the baby’

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• clear communication and expectations

– patient medically fit for discharge has no

‘right to occupy’ an inpatient bed –

regardless of capacity

– reasonable expectations of making plans to

leave

– NB recent NHSE guidance

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• collaborate between Trust and P / family,

but also local authority and / or CCG, and

eg Care Home / Nursing Home

• apply for DoLS authorisation in

anticipation

• apply to CoP if need be, and can seek

interim discharge

@BJhealthlaw

We have produced a toolkit on dealing with

delayed discharge – including capacity issues

as well as offering a training workshop to

help clients develop their own approach

@BJhealthlaw

Please get in touch if you have any questions

or wish to discuss the topics we’ve covered

further…

ben.troke@brownejacobson.com | 0115 976 6263