The DoLS Order
14. 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 found any indications that something has gone wrong in the way the Trust put in place the DoLS order.
15. Mrs R says the Depravation of Liberty Safeguards (DoLS) was not appropriate and not justified. She says she had capacity to make the decision to self-discharge and the Trust used ‘sectioning powers’ it does not have.
16. It must have been very frustrating and upsetting for Mrs R when she found out about the DoLS order. We are sorry to hear this left her feeling powerless during her hospital admission. We do not wish to dismiss how difficult this experience was for her.
17. The Trust said it used the Mental Capacity Act 2005 and DoLS as there were doubts about Mrs R’ mental capacity due to the effects of the sedation.
18. Mrs R was admitted to hospital on 21 November 2022 after suffering seizures and sustaining a head injury.
19. The Trust tried to get a CT scan for Mrs R, but she had a seizure on the CT trolley.
20. Mrs R was prescribed 0.5mg of lorazepam (a sedative) at 8.25am on 22 November 2022 in order to have a CT Scan without having a seizure.
21. Mrs R was prescribed a further dose of lorazepam at 11.40am.
22. At 12.30pm, the records show Mrs R is reported to be ‘drowsy’ due to the sedation. It Is recorded that Mrs R’ husband wanted to take her home, and Mrs R was drowsy and could not clearly agree. Due to this, a mental capacity assessment was requested.
23. At 1pm, the Trust performed a mental capacity assessment. The records show she appeared drowsy but still had capacity at this stage.
24. At 3.40pm, the records note Mrs R was ‘very drowsy’ due to the sedation. Staff requested another mental capacity assessment to be completed before she is discharged.
25. At 4.14pm, a second mental capacity assessment was competed. The doctor decided Mrs R did not have capacity to make the decision to self-discharge.
26. Based on Mrs R not having mental capacity, the Trust completed the DoLS application form at 6.18pm and sent it to the safeguarding team. It was not submitted to the local authority because it was outside of working hours. Mrs R had capacity by the time the DoLS application could be quality checked and submitted.
27. On 23 November 2022, Mrs R was less confused, and the sedation had worn off. At 3.35pm, staff completed the third mental capacity assessment, and it was decided she had regained capacity to make this decision. The Trust cancelled the DoLS application as she now had capacity.
28. Section 2 of the Mental Capacity Act 2005 says a person lacks capacity if at the time they are unable to make a decision for themselves because of ‘an impairment of, or disturbance in the functioning of, the mind or brain’. Section 2(1) says it does not matter whether the impairment or disturbance is permanent or temporary.
29. Our adviser said it was appropriate for the Trust to request a mental capacity assessment in line with the law. Our adviser explained sedation could temporarily impact a person’s ability to make a decision. As Mrs R was drowsy, it was appropriate to request a mental capacity assessment to see if she had capacity to make the decision to self-discharge.
30. The GMC decision making guidance says a person has capacity if they can meet the four part test and do all of the following:
• Understand information relevant to the decision in question • retain that information • use the information to make their decision • communicate a decision
31. Section 3(1) of the Mental Capacity Act 2005 says a person is unable to make a decision for himself if he is unable
• to understand the information relevant to the decision, • to retain that information • to use or weigh that information as part of the process of making the decision • to communicate his decision (whether by talking, using sign language, or any other means)
32. The mental capacity assessment completed at 3.40pm shows Mrs R could not use and weigh up the information relevant to the decision. Our adviser said the doctor correctly used the four part test as set out in the Mental Capacity Act 2005 and the GMC decision making guidance. Our adviser said the doctor appropriately decided Mrs R did not have capacity when she could not use the information she was being told to make a decision, due to the effects of the sedation.
33. The NICE decision making guidance says if the outcome of the mental capacity assessment is the person lacks capacity, the practitioner should clearly document the reason why the patient lacks capacity. The records show the doctor documented his reason being the continuing effects of sedation.
34. Section 4b of the Mental Capacity Act says a deprivation of liberty is permitted if the deprivation is ‘wholly or partly for the purpose of giving life-sustaining treatment or doing any vital act’. A vital act is any act which the person doing it reasonably believes to be necessary to prevent serious deterioration in the person’s condition.
35. Our adviser said the staff did not feel Mrs R was well enough to be discharged from hospital and wanted to complete more tests. Our Adviser said the DoLS was necessary to prevent serious deterioration and met the requirements of the Mental Capacity Act 2005.
36. Our adviser said the Trust appropriately carried out multiple mental capacity assessments during Mrs R’ admission, to assess the impact of her sedation. Our adviser said the DoLS was necessary as the Trust were doing this in order to prevent a deterioration in Mrs R’ condition.
37. Principle 1(5) of the Mental Capacity Act 2005 says an act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
38. From our investigation, the Trust’s decision to keep Mrs R in hospital was to investigate her illness. The records show they wanted to have neurological observations for 24 hours as part of its investigation. When Mrs R’ regained capacity and still wanted to self-discharge, the Trust were still concerned about this and wanted Mrs R to remain in hospital in case her condition worsened. This is in line with the GMC guidelines and principles of making a decision in the patient’s best interests.
39. We are very sorry Mrs R felt she was inappropriately placed under a DoLS, and that she did want to be discharged. From our consideration of the complaint, we have seen evidence Mrs R was drowsy due to the sedation she had been prescribed. We found the Trust appropriately completed multiple mental capacity assessments to test Mrs Brickle’s capacity. We have not found the Trust inappropriately placed Mrs R under a DoLS as she did not have capacity to make the decision to leave hospital. Therefore, we will not look into this any further.
40. We are sorry for how this experience has undeniably caused Mrs R distress and this decision does not undermine the lasting impact it has caused.
Safeguarding concerns
41. Mrs R complains about the Trust raising safeguarding concerns about her and her husband’s relationship.
42. On 22 November 2022, the records show Mrs R said she had PTSD from abuse in the past where her partner used to sedate her. Mrs R told us she was referring to an ex-partner.
43. Based on this information, staff raised a safeguarding concern as they were unsure if this disclosure was about abuse from her current partner or an ex-partner.
44. At 3.55pm, a health independent domestic violence advocate (IDVA) spoke to Mrs R as requested by the safeguarding team. The IDVA confirmed that Mrs R was referring to her ex-partner.
45. The RCON guidance says a nurse and health care assistants are responsible for ‘safeguarding those in your care and you must respond to safeguarding concerns’. It says staff must identify safeguarding concerns and report the concerns.
46. Our adviser said it was appropriate for the staff to raise a safeguarding concern based on the information it had. This was appropriately looked into later that day and the safeguarding concern about Mrs R’ relationship was dropped. Our adviser said staff are encouraged to raise safeguarding concerns if there are any concerns.
47. The evidence we have seen shows staff were concerned about Mrs R’ disclosure about abuse in the past and were unsure whether this was her current partner or not. This was promptly reported and investigated. We think the staff member was acting appropriately in line with the RCON guidance by reporting a potential safeguarding issue.
48. We are sorry there was a concern raised about Mrs R’ husband. We understand from speaking with Mrs R on 24 May 2024 that this was very upsetting to hear and read about in her records. She told us ‘her husband would never hurt her and saved her from her previous partner’. We recognise this was a very upsetting situation, and Mrs R feels very strongly about her complaint. We want to reassure her we have carefully listened to her words and the impact this experience had on her.
49. From what we have seen, we do not think staff raised this safeguarding concern inappropriately. It was done so in the best interests of Mrs R and in line with RCON guidelines. We are satisfied the Trust resolved this safeguarding concern in a timely manner. We will not investigate this matter any further.