Shah & Heginbotham ^{Reference Shah and Heginbotham1} describe a number of issues relating to the Deprivation of Liberty Safeguards (DoLS) of the Mental Capacity Act. A recent court case ² appears to complicate matters further. The defendant was a 55-year-old lady with ‘a significant impairment in intellectual functioning as a consequence of a learning disability’ who developed an endometrial adenocarcinoma. She required major surgery if her life was to be saved. It was agreed that she lacked the capacity to make decisions about her healthcare and treatment.

She also suffered from hospital and needle phobias. Attempts to explain the need for surgery to her had failed and on occasions she refused to attend hospital for treatment (even when she had initially agreed).

The judge agreed the defendant could be sedated to ensure that she attended hospital for the operation and did not ‘leave it prematurely after the operation had taken place’. She would ‘be given analgesic medication which would have a sedative effect on her, thereby rendering it unlikely that she would be able to abscond. However, it might be necessary to use force as a last resort to ensure that she returned to her hospital bed’.

The judge then said ‘In my judgment… it will be necessary to detain [the defendant] in hospital during the period of post-operative recovery. After mature consideration, the Official Solicitor, on [the defendant's] behalf, came to the view that it was not necessary to invoke the Deprivation of Liberty Provisions under Schedule 1 of the Act. I agree with that analysis. If it is in [the defendant's] interests (as it plainly is) to have the operation, it is plainly in her interests to recover appropriately from it’.

Given that it was planned, if necessary, to use sedation and/or force to prevent this patient leaving hospital, she was clearly to be deprived of her liberty. The court determined that because the patient lacked capacity and it was in her best interest (two necessary criteria for the use of DoLS), the DoLS were unnecessary.

Other articles in The Psychiatrist ^{Reference Shah and Heginbotham1,2,Reference Selmes, Robinson, Mills, Branton and Barlow4} discuss the problems surrounding the definition of deprivation of liberty and the interface between the DoLS provisions of the Mental Capacity Act and the Mental Health Act. It now seems there is a further difficulty in determining whether the DoLS provisions are needed even if there is clear deprivation of liberty.