The RCPsych Article of the Month for March is ‘Deprivation of liberty in hospital: the MHA versus DoLS dilemma‘ written by authors Jeremy Cave, Alex Ruck Keene, Matthew Lowe and published in BJPsych Advances. The blog is written by author Jeremy Cave.

This article was our attempt to ease an uneasy feeling that seems to stalk psychiatrists. It is the feeling of not being entirely sure where we stand legally. Or, perhaps better put, a feeling that there must be a clear legal answer, but it is just a little beyond us or out of sight. What are we missing here?

In its simplest iteration, the ‘MHA v DoLS’ dilemma is this: that for patients lacking capacity but agreeing to their admission and treatment either the Mental Capacity Act and Deprivation of Liberty Safeguards must be used, or the Mental Health Act.

The impetus to get this right is something not often spelled out to doctors in its most explicit terms: we are agents of the state and as such have a legal duty to preserve our patients’ Article 5 right to liberty and security. Like bundling someone into a van, where we treat patients who can’t or won’t agree without an appropriate legal framework, we are violating their human rights.

Strictly, this matters where what we are doing is depriving them of their liberty. Though as the Independent Review of the Mental Health Act makes clear, we are almost always doing this when we bring someone without capacity into hospital for psychiatric treatment.

To prepare for this article, we spoke to consultant psychiatrists across sub-specialties and trusts to ask them about our fictional case of a patient requiring both medical treatment and ECT in a general hospital. Which act? The replies were unanimous: the mental health act.

Why? Central to their answers were a set of legal convictions that we think most psychiatrists hold: the Mental Health Act is more restrictive but more attuned to safeguarding mental health patients as a uniquely vulnerable cohort. The DoLS is less restrictive and better suited to patients in a general hospital setting or awaiting discharge to a placement.

It was a surprise when researching the article to discover that the codes of practice and case law simply do not see it in this way. In fact, they insist that we should not see it in this way. Yet research done when the Deprivation of Liberty Safeguards were introduced, and repeated again by the Kings Fund a decade later, show this discordance between clinicians and the law persists.

Our article concludes that for some cases the legal conundrum remains insoluble, and the dilemma will go ‘all the way up.’ In some ways this should be reassuring – nothing is being missed – but in other ways it suggests the law asks too much of doctors: we cannot be lawyers in our daily practice, appraising these acts against each other alongside a tapestry of codes of practice recommendations and case law verdicts.

Nevertheless, knowing the landscape is important and we hope this article helps bring together the relevant considerations into one place. The dilemma also offers the opportunity for liaison psychiatrists to come into their own. Psychiatry’s focus on the whole person makes it well placed to help answer the clinical questions inherent to the dilemma: is our patient objecting? What is the ‘real reason’ for their admission? To what extent are their problems best understood as ‘a symptom or manifestation’ of their mental illness?

We hope our article structures doctors’ decision making, helps them to feel on firmer footing when approaching the dilemma, and encourages a curiosity towards these interesting clinical questions.

The authors address an important area of psychiatric practice concerning patient admissions, exploring in detail the legal interface between the Mental Health Act 1983 (MHA) and the Deprivation of Liberty Safeguards (DoLS) of the Mental Capacity Act 2005 (MCA) in England and Wales. The article dissects the dilemmas faced and factors that need consideration in different clinical scenarios, including a fictitious case example, to clarify and appraise aspects of both legal frameworks.

It is anticipated that this article will help clinicians to objectively focus on and carefully consider the rationale behind decision-making processes, to achieve the best outcomes for patients.  It aims to debunk myths and misunderstandings while highlighting general principles applicable to other jurisdictions.

Professor Asit Biswas
Editor-in-Chief, BJPsych Advances

Featured image details:

‘red black and white textile’
A Kazak rug, c. 1900s.
Image sourced from Unsplash.com, courtesy of Erol Ahmed