Detention under DoLS
16. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and have not seen any indication that something has gone wrong.
17. Mr A told us he felt his detainment under DoLS was unlawful. He said the Trust should have obtained authorisation prior to detaining him.
18. The Trust said DoLS were applied for and accepted on 13 March 2023. The Trust told us it was put in place as Mr A was suffering from fluctuating confusion. This confusion meant he did not have capacity and was unable to consent to care or treatment.
19. The Mental Capacity Act says DoLS should only be used if it’s the least restrictive way of keeping a patient safe and given the right medical treatment.
20. Local guidance says prior to applying for or authorising DoLS, clinicians must allow the patient time to orientate to their environment. It says a 24-to-48-hour assessment period prior to submission of DoLS is acceptable, if there is evidence of a reversible cause to the condition causing the lack of capacity.
21. The guidance says subject to the assessment period described above, DoLS must be applied for when the six criteria below have been met:
• the patient must be 18 years or older • the patient must be suffering from any ‘disorder or disability of the mind’ as defined by the Mental Health Act.
• the patient lacks the capacity to consent to being accommodated in hospital • the patient is not detained under any section of the Mental Health Act • the patient has not made an advanced decision to refuse that care or treatment they have been admitted for • it has been agreed that it is in the patient’s best interest to remain in hospital.
22. Local guidance says if all the six criteria above are met the patient should be under continuous supervision or control. The patient is also not free to leave hospital.
23. The guidance says a DoLS form must be completed electronically and emailed to the Trust safeguarding team. That team will then review the form and send it onto the relevant local authority for authorisation.
24. The guidance says the Trust can authorised itself to deprive the patient of their liberty. This is for a maximum of 14 days whilst awaiting assessment by the supervisory body (the local authority). The local guidance says by completing and submitting a DoLS application, the Trust is stating that the DoLS has already begun in the patient’s best interest.
25. Medical records show a doctor reviewed Mr A in the evening of 11 March. The doctor noted a history of increasing confusion. The suspected cause was thought to be encephalopathy (a broad term for any brain disorder or damage that affects its function or structure).
26. During the review the doctor felt Mr A required DoLS due to a lack of capacity. This was due to his daughter reporting Mr A had been confused for around three to four weeks. This confusion included Mr A getting medication wrong, misidentifying a familiar neighbour and getting lost outside his house. His daughter also reported that she was unsure Mr A could feed or take care of himself.
27. Records show Mr A has asked to return home in the morning of 12 March. He told nurses that he was managing well at home. Medical records show Mr A was unable to recall the year or the name of the monarch.
28. Our clinical adviser said there was clear indications Mr A did not have capacity at the time of the DoLS. This includes a doctor’s assessment in the evening of 12 March which found Mr A to have delirium with worsening tremors. Records also noted his high lithium blood results, which were above the normal range.
29. Doctors found Mr A remained confused on 13 March. They believed he did not have capacity to make decisions in his own interest.
30. Although the records say a mental capacity assessment (MCA) was completed on 13 March, we have seen no copy of the assessment in the records. We have seen no contradictory evidence to suggest that a mental capacity assessment did not take place. Based on this we have concluded that an MCA did take place and found Mr A did not have capacity. This is in line local guidance which says clinicians must determine a patient lacks capacity before requesting DoLS.
31. The records indicate the DoLS was completed in the morning of 13 March. This wait period appears to be in line with local guidance which recommends doctors allow patients to become orientated at hospital.
32. There was no copy of the DoLS in the medical records supplied by the Trust. We have seen a copy of the DoLS which was provided by Mr A.
33. Medical records show Mr A was above 18 years of age at the time of the application. We have seen no evidence he was detained under section. We have also seen no evidence he provided the Trust with an advanced decision to refuse care or treatment.
34. We have seen the Trust diagnosed Mr A as suffering from delirium brought about by lithium toxicity. This would fit the criteria of a disorder of the mind as defined by the Mental Health Act.
35. Records show Mr A lived independently and was mobile prior to admission. From his admission Mr A was found to be very unsteady on his feet and was at risk of falls. We have seen in paragraph 26 his daughter raised her concerns about his ability to care for himself at home. We have seen Mr A asked to go home on 12 March.
36. The Trust has told us the decision to place Mr A under a DoLS on 13 March was done in his best interest. In our view Mr A would have been at risk of falls or self-neglect if he had returned home on 13 March. We have seen no indication the Trust did not feel the DoLS was in Mr A’s best interest.
37. Based on the information above we have seen indications Mr A met the criteria for a DoLS as outlined in paragraph 21. The Trust followed local guidance and kept Mr A under supervision and stopped him from leaving.
38. We can see the Trust completed a DoLS and sent it to the local authority. This is in line with local guidance seen in paragraph 23. We have seen in paragraph 24, the Trust did not need to wait for its DoLS request to be authorised by the local authority before taking these actions.
39. In summary we have seen no indication the Trust did not act in line with the relevant guidance when it detained Mr A under the DoLS process. We have seen indications Mr A met the criteria for DoLS. We have also seen no indication the Trust needed to wait for the local authority to approve a DoLS before enacting the safeguards.
40. We appreciate how distressing these events were for Mr A. We would like to take this opportunity to thank him for bringing the complaint to our attention.
DoLS paperwork
41. As set out in paragraph 16, we have looked at whether there are signs the organisation has got something wrong. We have compared what should have happened with what did happen. We have done this and have not seen any indication that something has gone wrong.
42. Mr A told us the Trust did not provide him with paperwork at the time of the DoLS or at the time of discharge.
43. NMC guidance says nurses must act in partnership with those receiving care, providing information and support when they need it. It also says nurses must share information with a patient’s family, to help them understand their treatment.
44. We have seen no indication in the local guidance a copy of DoLS paperwork must be provided to patients by the Trust.
45. Medical records do not indicate the Trust provided Mr A with a copy of the DoLS at the time of the application or when he was discharged. The records show a nurse did provide Mr A’s daughter a DoLS information leaflet on 17 March. This is in line with NMC guidance which says information should be shared with a patient and their family.
46. The medical records do not indicate Mr A asked for a copy of the DoLS at the time of discharge. The records indicate he wanted to leave hospital as soon as possible on 20 March. The Trust produced a discharge letter which noted Mr A had been under DoLS. This was addressed to Mr A’s GP.
47. We have seen no indication the Trust failed to follow guidance when it did not provide Mr A a copy of the DoLS during his admission or at discharge. This is because we have seen no indication that the Trust was required to do so.
48. We understand how not having access to DoLS paperwork caused Mr A distress. We are sorry we cannot consider this aspect of the complaint further as we have seen no indication something has gone wrong here.