Understanding the interface between the Mental Capacity Act’s Deprivation of Liberty Safeguards (MCA-DoLS) and the Mental Health Act (MHA)

The background to the Mental Capacity Act's Deprivation of Liberty Safeguards (the MCA-DoLS) regulations, which were introduced in 2009, lies in the European Convention on Human Rights.Their aim is to protect adults with a mental disorder who lack capacity to make decisions about arrangements for their care and treatment in psychiatric or general ('acute') hospitals and care homes and may be at risk of having limits that go beyond mere restriction or restraint placed on their freedom of movement.According to the regulations that set out the MCA-DoLS procedure, a deprivation of liberty, which must always be in the 'best interests' of the person to whom it applies, can only be authorised by an independent body, the Supervisory Body, following an application by a Managing Authority on behalf of a clinical team and the completion of six assessments.In contrast with care homes, in settings such as psychiatric hospitals where the Mental Health Act (MHA) can also be used, a decision may need to be made between the two statutory frameworks for civil detention.In order to provide recommendations for policy and practice, we set out to examine, first, how practitioners make decisions between the MCA-DoLS and the MHA, and, secondly, the characteristics of, and outcomes for, men and women for whom applications for, and authorisations of, a deprivation of liberty are made.The study, which was carried out from November 2010 to November 2011 used information from a number of sources.Three Supervisory Bodies, covering an ethnically diverse population of 1.7 million across metropolitan, urban, and rural areas provided anonymised completed copies of the Department of Health's standard application and key assessment Forms.We also analysed the text of other standard Forms; carried out semi-structured interviews with individuals with key roles in the application, assessment and/or authorisation process; presented brief clinical vignettes to psychiatrists and others; attended events and meetings with practitioners; and held discussions with representatives of the three Supervisory Bodies to confirm issues relating to emerging themes.In addition, data relating to the MCA-DoLS from the Health and Social Care Information Centre were collected and compared with information about the use of the MHA in order to examine and compare the characteristics and experiences of men and women subject to the two different legal frameworks.While concerns were expressed by practitioners regarding, for example, the Code of Practice and the status of guidance that is occasionally issued by the Department of iii Health, there was also some support for the MCA-DoLS and its potential for safeguarding men and women whose lack of decision-making capacity makes them vulnerable.Nevertheless, our findings suggested a range of difficulties, extending beyond the interface with the MHA.The decision-making of clinicians in psychiatric hospitals was strongly oriented to the MHA as the appropriate legal framework for patients receiving what they described as 'active treatment' (medication, ECT, psychological interventions).The MCA-DoLS were seen as appropriate for detaining men and women receiving what they termed 'care' (support with personal care and/or everyday tasks) while awaiting discharge to residential accommodation.It was reported that, in contrast, medical practitioners in general hospitals seemed reluctant to consider the MHA even when it appeared appropriate for the treatment of their patients' mental disorders.In both applications for assessments for the MCA-DoLS and in the Best Interests Assessments, restrictions and particularly restraint, patient challenges, and the family's wish for the relevant person to return home with them, were used rather crudely as indicators of a deprivation of liberty.However, like clinicians, Best Interests Assessors did not always recognise that, in the context of treatment for a mental disorder, patient opposition and subsequent staff restrictions could constitute 'objection' for which the use of the MHA might need to be considered.We found little evidence of a consideration of less restrictive alternatives such as environmental modifications that might limit the extent to which restrictions might need to be placed on a patient's freedom of movement.Aspects of the standard Forms that practitioners have to complete are unhelpful: they are repetitive, contain wording that is slightly misleading, and do not ensure that the process of decision-making for the MCA-DoLS is always transparent and challengeable.There was evidence from completed Forms that arrangements for the provision of care and treatment were conflated with the care and treatment itself.More than a third of the thirty-seven Form 4s completed by Managing Authorities did not attach a copy of the care plan, which should contain details not only of the patient's care and treatment but also the arrangements for the provision of that care and treatment.Of concern, while almost three-quarters of the Form 10s completed by Best Interests Assessors referred to consultations with 'interested parties', only one referred directly to the information gained.This meant that the voices and insights of those who might have long-standing knowledge of the person on whose behalf a deprivation of liberty was being sought were missing.While the format of the data set placed severe restrictions on our analysis, we found that applications and authorisations for MCA-DoLS for patients in general and psychiatricWe are grateful to many people: in particular, the representatives of the three Supervisory Bodies: Ms Emma Ekwegh, Mr Stephen Vickers and Mr Joseph Yow, and their colleagues,

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