Social workers given guidance on applying deprivation of liberty ‘acid test’ to end-of-life care

Government issues advice note in bid to ensure system does not put ‘paperwork before people’ in end-of-life care cases

Photo: Gary Brigden

The Department of Health has issued guidance on how practitioners should apply a landmark Supreme Court ruling on deprivation of liberty to terminally ill patients receiving palliative care in the last few weeks of their lives.

Niall Fry, the DH Mental Capacity Act policy lead, has written to social workers outlining how the ‘acid test’ set out in the Supreme Court’s ‘Cheshire West’ ruling in March of last year should apply to palliative care arrangements. The acid test sets out two questions that professionals should consider when determining whether an adult who has been assessed as lacking capacity to consent to their care arrangements is being deprived of their liberty or not: is the person subject to continuous supervision and control? And is the person free to leave?

The court ruled that if both conditions of the ‘acid test’ are met, the person is deprived of their liberty. This means the care arrangements must be authorised via the deprivation of liberty safeguards (Dols) if the care setting is in a care home, hospice or hospital; or via a Court of Protection order if the placement is outside of those settings (e.g. supported living).

Practice dilemmas

The Cheshire West ruling effectively lowered the threshold for what is considered deprivation of liberty in care. In doing so it extended vital safeguards to a wider group of vulnerable people. However, the judgement has also presented dilemmas for practitioners, such as whether going through the Dols process – which involves at least six assessments – for a patient in a coma could cause undue distress to families.

In his letter, Fry says that the applicability of the ruling to palliative care settings “has caused particular concern” for professionals. The DH says it is issuing the guidance to try and strike the right balance between safeguarding individuals and preventing undue distress, saying: “we do not wish a system that puts paperwork before people”.

The DH’s practice advice

On the applicability of the Cheshire West ‘acid test’ to palliative care:

– Are they ‘free to leave’? Just because they are physically unable to leave of their own accord does not mean they are not free to leave for the purpose of the test – they may for example be able to leave with family assistance;

– Are they under ‘continuous control and supervision’? If the individual is in a private room and checked only every few hours then they may not necessarily be under continuous control and supervision.

Situations where the DH considers there is no deprivation of liberty:

If a person receiving palliative care has the capacity to consent to the arrangements for their care, and does consent, then there is no deprivation of liberty;

Furthermore, if the person has capacity to consent to the arrangements for their care at the time of their admission or at a time before losing capacity, and does consent, the Department considers this consent to cover the period until death and that hence there is no deprivation of liberty (an exception would be if the person’s care package was significantly changed in a manner that imposed significant extra restrictions);

Fry’s letter also issues advice on two other practical dilemmas that have emerged since the Supreme Court ruling: the meaning of ‘mental disorder’ and the issue of coroners’ investigations of deaths of people subject to a Dols authorisation.

The issue of ‘mental disorder’ is brought up because standard Dols authorisations can only be brought if a person is assessed as having a mental disorder. Fry’s letter states that the DH does not consider unconsciousness in itself as being a mental disorder. Therefore the DH believes that an individual who is unconscious and who does not have a mental disorder is not eligible for a standard authorisation.

Coroner investigations

On the issues of coroner’s investigations, the chief coroner has advised that the death of a person who is subject to a Dols authorisation or Court of Protection order is by law classified as a death in ‘state detention’ and should therefore trigger a coroner’s investigation. The DH letter says that the government recognises the chief coroner’s view but any coroner’s investigation should be proportionate to the circumstances of the case as the “great majority” are likely to concern deaths in a ‘normal’ care environment.

“Where it is clear there is no suspicion of untoward factors contributing to the death, we would hope that any inquest puts the least possible stress on the family and is completed as rapidly as possible. DH and the CQC have heard concerns of bereaved families being visited by uniformed police officers assigned to investigate deaths on behalf of the coroner or of delays in releasing the body of a loved one to their family. We would strongly urge that such situations be avoided wherever possible,” the letter states.

Coroners and local authority Dols leads should keep in “close communication” to work together in dealing with the implications of the extra activity triggered by the Supreme Court judgement, the letter adds.


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2 Responses to Social workers given guidance on applying deprivation of liberty ‘acid test’ to end-of-life care

  1. tony bowyer January 16, 2015 at 2:32 pm #

    I totally agree with both these observations. The MCA needs a total overhaul. Why are children in need of restriction and control placed on something called a ‘care order’ and yet the mentally frail and incapacitated have to be subjected to a ‘deprivation of liberty order’ when too have done nothing wrong and merely need proper ‘approved’ care???

  2. Terry McClatchey January 17, 2015 at 11:18 am #

    Hi Tony,

    I’m not sure that I have grasped your intended point here?

    There is nothing in MCA or related guidance says or should imply that a person subject to a DoLS has done anything “wrong”. There may however be a problem if people (yourself included?) read in that implication.

    My own view has long been that a simple change of word order would help avoid this confusion (with SDoL instead of DoLS) thereby putting the emphasis on the Safeguard rather than the Deprivation.