Implications of a new case law on the Deprivation of Liberty Safeguards

Abstract

The Deprivation of Liberty Safeguards (DOLS), introduced into the Mental Capacity Act 2005 (MCA), were implemented in April 2009. Recent case law established several principles: the Mental Health Act (MHA) has primacy over the MCA and it is not appropriate for professionals to pick and choose which Act to use; the eligibility assessors for DOLS need to consider whether a hospital would detain the patient under the MHA. The eligibility assessors for DOLS need to apply a 'but for' test, whereby consideration would need to be given to the need for detention in hospital if it were not for the physical illness, and if the only reason for detention in hospital was the need for treatment of the physical disorder then detention under DOLS would be appropriate. This judgement clarifies that individuals with mental disorders who only require treatment in hospital for physical disorders should be detained under DOLS. The implications of this judgement are discussed in this paper.