Why understanding Deprivation of Liberty is essential for Registered Nurses

With so many of those in the care of nurses subject to, or liable to be subject to a DoLS authorisation, particularly those in care homes, but also hospital inpatient settings, it is vital that RNs understand all the reasons why this whole process and the Mental Capacity Act (NI) 2016 (MCA) is so important.

The MCA is about safeguards – legal processes and safeguards for a person who lacks the capacity to make a decision about their health, welfare or finances, and legal processes and safeguards for a person who needs to do something with, for, or to a person who lacks capacity to make a decision in respect of their health, welfare or finances.

This is important because before a RN proceeds with any examination, care, treatment, intervention or support, they must gain valid consent from the individual. If a RN proceeds without valid consent, they could be liable to legal action by the person and the NMC.

There will be occasions where a person lacks capacity to provide valid consent. The MCA sets out the legal mechanisms and protections that may permit proceeding with examination, care, treatment, intervention or support where a person lacks capacity to provide valid consent to proceed. RNs who work within the legal framework of the MCA will have a protection from liability in the circumstance where the person has not provided valid consent to proceed.

Right now, the MCA is currently only partially implemented.  In respect of deprivation of liberty the relevant legal framework that a RN needs to know about is the Mental Capacity (Deprivation of Liberty) (No 2) Regulations 2019 which sets out the Deprivation of Liberty Safeguards (DoLS) requirements

Let’s look at what The Code (NMC, 2018) says. The Code says RNs must:

1.5 respect and uphold people’s human rights.

4.2 make sure that you get properly informed consent and document it before carrying out any action.

4.3 keep to all relevant laws about mental capacity that apply in the   country in which you are practising, and make sure that the rights and best interests of those who lack capacity are still at the centre of the decision-making process.

20.4 keep to the laws of the country in which you are practising.

So, for continued registration, a RN has work within the legal frameworks of the Human Rights Act (1998) (HRA) and the MCA.

The HRA gives “further effect to rights and freedoms guaranteed under the European Convention on Human Rights”. Article 5 of the European Convention on Human Rights (ECHR) is the “Right to liberty and security” and it states that:

“Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law….

(e) the lawful detention …, of persons of unsound mind, …;”

A Supreme Court Judgement in 2014  set out a clear definition for deprivation of liberty. This judgement said that a person is deprived of their liberty if they:

• are not free to leave, and
• are subject to continuous or complete supervision and control, and
• they lack capacity to consent to the arrangements.

Continuous in this context doesn’t mean that the person must be under constant close observation – it means that someone will know of their whereabouts at all times – which applies to most people in the care of nurses in places like hospitals and care homes.

Before the MCA there was no legal process which permitted a RN to deprive a person (of unsound mind) of their liberty. RNs were of course trying to keep those in their care safe, but they were doing this outwith the requirements of the ECHR and HRA, what is expected of them in respect of the requirements for continued professional registration and without any proper “legal cover”. It was necessary that the MCA was enacted, with the partial implementation of the DoLS Regulations expediated so that legal processes exist to safeguard people (those with “unsound minds” who cannot provide valid consent) who need to be deprived of their liberty, with that protection from liability for health and social care who deprive a person of their liberty.

So, whilst mentioning DoLS to RNs can sometimes elicit a feeling of “this is just more paperwork”, the more positive way to view it is that it is protection for both those who lack capacity and RNs. What RNs need to understand is that DoLS processes provide:

1. safeguards for a person who lacks capacity in respect of deprivation of liberty.
2. safeguards for a RN who deprives a person of liberty when they work within the legal framework.
3. safeguards that allow RNs to maintain their registration by meeting the requirements of The Code.
4. safeguards that support RNs to practise both legally and ethically.

Up to date information about the MCA can be accessed on the Department of Health website.

 However, such the geek that I am, I will always be happy to have a discussion with anyone about anything MCA, anytime, so any questions, please bring them my way!!!!