The DoLS eligiblity test: possible routes out of the mire

I am talking here specifically about the eligibility assessment for the purposes of granting a standard authorisation under the deprivation of liberty safeguards (commonly referred to as the DoLS scheme).

In case you aren’t familiar with the DoLS scheme, I’ll give a brief overview. It is the mechanism by which deprivation of an individual’s liberty in a care home or hospital can be rendered lawful. It is an important safeguard against arbitrary detention, not least because it provides access to non-means tested legal aid and the opportunity for a court review. For more on why that is so important see my musings on s21A challenges here.

There are 6 assessments that must be completed before a standard authorisation can be granted. The age assessment is very straightforward (whether the person is aged 18 or over). The best interests assessment and capacity assessment are familiar concepts. The mental health assessment is usually simple to understand (not to be confused with a mental health assessment under the Mental Health Act 1983 (MHA), this assessment serves to provide evidence of ‘unsound mind’ to bring the scheme into line with the Human Rights Act 1998). That leaves the No Refusals assessment and the Eligibility assessment.

No Refusals requires the assessor to check that no validly authorised person has refused consent to the arrangements, such as an individual holding a welfare power of attorney or welfare deputy. It does not test whether the individual themselves is ‘refusing’ since, in order to be within scope of the scheme the individual has been assessed as not having capacity to refuse consent. Any dissatisfaction on their part is dealt with through the mechanism of an objection and a s21A application to the Court of Protection.

The eligibility test seems to be the one practitioners struggle to understand most. It raises its head in only a small number of cases, but when it does, it can be tricky to navigate. I know a few fellow lawyers who seem to struggle with it too. Indeed I attended a hearing on this issue and a fellow solicitor and their very experienced barrister appeared to suggest to the judge that since the eligibility test is so difficult to navigate, we might as well not bother to try to apply it, so the local authority should just grant a standard authorisation so we can all be done with it.

The scheme has a lot of flaws, I don’t dispute that, but I am very uncomfortable with the idea that we can just choose not to apply rules that we don’t understand. And I don’t think that was really what they meant to say, I just don’t think they had really applied their minds to the eligibility test at all.

Schedule 1A of the Mental Capacity Act 2005 (MCA) sets out a number of scenarios where the eligibility criteria might not be satisfied and thus a standard authorisation can’t be granted. It categorises these by references to Cases A-E. But Cases A-D are pretty straightforward as they relate to situations where a person might be subject to the DoLS scheme but also under some measure or control via the Mental Health Act 1983. Case A concerns situations where the person is already detained under the Mental Health Act 1983 and in those cases the person is ineligible for a standard authorisation and there is no need for one because the MHA renders the deprivation of liberty lawful. Cases B-D mention guardianship, s17 leave, conditional discharge and community treatment orders. In those situations, the person is eligible for a standard authorisation unless that would conflict with a measure under the Mental Health Act 1983. But as long as the two schemes are working towards the same aim, they can run concurrently.

Case E is the tricky one. Because it is recognised as per the judgement in an NHS Trust v Dr A 2013 there is the potential for somebody to fall between the 2 schemes and be left with no protection from either scheme. Let me explain how.

Schedule 1A states that Case E applies if the individual is within the scope of the Mental Health Act 1983, is receiving mental health treatment in hospital and is objecting to any element of their mental health treatment, they will be ineligible for a standard authorisation. The logic here is that the person ought to be detained under the Mental Health Act 1983 instead. But the decision of an assessor under the DoLS scheme does not bind an AMHP conducting a Mental Health Act assessment under the MHA. And an AMHP might decide that the person is not eligible to be detained under the MHA either. The criteria for admission under the MHA are different, after all.

It is obviously far from ideal that an individual be detained without any framework authorising this. Indeed, this would be exactly the type of arbitrary detention article 5 of the European Convention on Human Rights was designed to prevent.

So what can be done about it?

In the case of Dr A, the issue was that Dr A was in hospital for mental health treatment, but also required artificial nutrition and hydration which was considered outside the scope of the MHA. It was necessary to deprive him of his liberty to give him that treatment. But this could not be authorised under the MHA, because it was not mental health treatment, but could not be authorised under either DoLS or an order of the Court of Protection by virtue of Schedule 1A and section 16A of the MCA. The court, therefore, authorised the treatment and deprivation of liberty under the inherent jurisdiction of the High Court. For more on that see my other posts about the inherent jurisdiction here.

The gap between the two regimes is fairly narrow, however, and often the proper application of the two statutes. For example, the same issue was raised in the case of GJ but in that case it was decided that GJ was not a ‘mental health patient’ receiving ‘mental health treatment’ because he was in hospital for treatment of his diabetes, which was physical health treatment. Applying this ‘but for’ approach can often offer a statutory route out of the mire.

In my experience, another route out of the problem is often in the wording of s3 MHA itself. The grounds for detention in s3 are:

  • he is suffering from mental disorder of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and
  • it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section; and
  • appropriate medical treatment is available for him

Lets ignore the use of masculine pronouns which is quite annoying but happens a lot in legislation. That second bullet point if the part where AMHPs will usually consider the other options available to the person and whether these will achieve the same aim. Often it is said that the person is not detainable under s3 because the treatment can be provided without the person being detained because either they have capacity to consent and will agree to being an informal patient or they lack capacity to consent and treatment can be given whilst they are detained via a DoLS authorisation. Yet if this person is in hospital, is within the scope of the Mental Health Act and objecting to being in hospital or receiving mental health treatment then the treatment cannot, in fact, be delivered without the person being detained under the MHA. Once that is explained to the assessing AMHP, this may resolve the issue.

Obviously, there are a number of different situations where the interplay between the MHA and DoLS scheme can fall to be considered, and each will require individual consideration. But hopefully a lot of these issues can be resolved through one of these routes.

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed in this blog are my own opinion and not the opinion of that local authority.

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