The Mental Health Act’s forgotten sibling

I said these posts would get shorter as WFH meets no- childcare… this is a super quick one to pose a question. As you’ll no doubt have seen by now, the new Coronavirus emergency legislation aims to take pressure of frontline health and social care workers by reducing or removing various statutory duties in community care legislation and the Mental Health Act. Some of these changes are truly alarming, others perhaps more understandable. But what puzzles me most is there is no reference at all to that most intensively bureaucratic of statutory processes: the Mental Capacity Act deprivation of liberty safeguards. This is really puzzling for two reasons; firstly the number of Dols applications vastly outstrips Mental Health Act detentions, and secondly it applies in the locations that will be most badly hit by the Covid 19 pandemic: care homes and acute hospitals.

My main theory is they’ve genuinely just forgotten about DoLS. But even more depressingly, perhaps the rationale is DoLS applications are piling up unprocessed anyway so a few thousand more won’t matter.

But this is something we need to think about. As care homes are on their way to becoming hyper-closed institutions, as CQC pares back inspections, restrictions increase across the board, staff come under unprecedented pressure and families and residents may resist restrictions or try to leave… some system of safeguards will be needed. So the question is, what flex is there in the system that we could cut and still retain some basic protection? And why isn’t the government looking at this…?

7 thoughts on “The Mental Health Act’s forgotten sibling

  1. My instinctive first reaction was that you are correct: whoever drafted these proposals is simply unaware of the MC and DOLS. My second thought was that you are also correct about the desperate backlog in DOLS offices around the country. This is only too evident on the ground.
    My own employer has stopped all client visitng except the most necessary safeguarding and IMCA cases. There is however the telephone, and it is a simple matter to ring providers to check on P.
    It’s a start.
    Andrew Makin: IMCA & RPR

  2. Lucy: I am sure you’re right that the drafters of recent draconian laws never gave a thought to DoLS – by the same token it’s not likely that they were devilishly assuming that the backlog was so great they needn’t bother. Occam’s razor: simple ignorance is sufficient explanation I fear.

  3. Maybe not forgotten about DOLS but just way down the list of their priorities and figuring that if and when the issue blows up – people will forgive them. Small comfort.

  4. My immediate thought was to wonder this. The second was that they probably assume most DoLS patients are vulnerable to the virus due to physical co-morbidity and should be self isolating anyway.
    From a strictly libertarian position we are not far off all of us being under house arrest anyway.

  5. I suspect they’ve thought they can kick it into the long grass by leaving the Courts to adjourn virtually everything. Most 21as will provide insuperable problems, particularly where there is genuine dispute and real alternative placements; how can assessments take place? How can disputes over capacity be resolved?

  6. Hmmm. Legal question – if they are DOL, have not had a DOLS order and they catch the virus and die (lawyers are a cheerful lot, aren’t we?), is the care home/local authority liable in damages? Is the government liable if the virus is contracted as a result of somebody discharged from hospital to the care home on government instruction without being tested? If the answer to either of these is yes, presumably it will move to the centre of government thinking rather quickly…

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s