Deprivation of Liberty in Intensive Care: an update

Abstract

The requirements for deprivation of liberty safeguards (DoLS) in the intensive care setting remain confused. A recent judicial review which considered the relevance of DoLS when a patient is admitted to intensive care points towards a less restrictive approach. The Law Society offered guidance in April 2015. This sets out the ‘‘acid test’’ required to determine if a deprivation of liberty is occurring. If the patient lacks capacity and is under continuous supervision and control and is ‘‘not free to leave,’’ then they are deemed to be deprived of liberty. The guidance gives specific examples in the intensive care setting. For the minority of patients who can give prior consent to being treated in ICU, a deprivation is unlikely. For the remainder, lack of capacity will frequently mean a deprivation could be occurring. For occasional patients who are ambulant in ICU and are being visibly held against their wishes, it is pretty obvious they are ‘‘not free to leave.’’ For most patients in ICU who are not ambulant, ‘‘not free to leave’’ is difficult to assess and potentially problematic. The Law Society guidance advises us to consider our response to the theoretical question ‘‘what would we do if a relative asked to take the patient away (e.g. home)?’’ In patients who are being actively treated in intensive care, it would be unwise for them to go home and a relative keen to do this would potentially put the patient at risk. It would therefore seem illogical to consider our response to such an unwise request. On the 29 October 2015, the judgement of an appeal court case involving an intensive care patient was published. In R vs Senior HM Coroner, a patient with Down’s syndrome died in the ICU despite previous reluctance to be in hospital. The Coroner elected not to request a jury for the inquest because he considered that the patient was not ‘‘in state detention’’ (implying no Deprivation of Liberty had occurred). Both judges rejected the case against the coroner and agreed that no deprivation had occurred. Both judges were highly critical of the Law Society guidance’s approach used to determine if a deprivation was occurring. Lord Justice Gross said: