DoLS decision
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.
15. Mr R says Mrs O was admitted under a Section 2 and staff initially told him they were applying for a Section 3. He says, within days, the Trust decided to apply for a DoLS instead.
16. He says he needs to better understand the reasoning for the decision as this has had major ramifications on the level and subsequent costs of his mother's ongoing healthcare. He says if Mrs O had been put on Section 3, she would have been held in hospital for another 60 days. This would have given the Trust a better understanding of the level of care she needed and may have influenced the family’s decision on which care home she should go to.
17. The Trust said the doctor explained to Mr and Ms R that DoLS was a means of minimising the restrictions on Mrs O whilst still providing a legal framework to support decision-making and said the decision to use DoLS was correct.
18. The records show staff decided Mrs O needed a Section 2 when she was admitted, due to the risks as Mrs O had a knife.
19. Section 2 of the Mental Health Act (MHA) 1983 allows for the detention of a person in a hospital for up to 28 days for the purpose of assessment and treatment of a mental disorder. This section is used when there is a concern about a person's mental health and a need for a comprehensive assessment in a hospital setting. The assessment determines the nature of the mental disorder and whether further treatment under the Act is necessary.
20. It is recorded in Mrs O’s medical records that she lacked capacity to consent to care and treatment whilst she was admitted.
21. DoLS is a legal framework within the Mental Capacity Act (MCA) 2005 that protects people who lack the capacity to consent to their care and treatment arrangements, if those arrangements involve depriving them of their liberty. These safeguards ensure that any deprivation of liberty is lawful, necessary, and in the person's best interests.
22. The records show Mrs O had no agitation or aggressive behaviour. According to the records Mrs O was cooperating with staff, she was not actively trying to leave the ward, was not distressed or psychotic, was generally compliant with treatment and care, and was not resistant to personal care.
23. There is one mention of Mrs O saying she wanted to die but there is no documentation of any active suicidal plan or intent.
24. There is documentation in June that Mrs O threatened to assault staff but did not act on it, this was only on one occasion. Our adviser says there is no evidence of any ongoing verbal or physical aggression in the medical notes to warrant detention under Section 3 of the MHA.
25. There is also documentation to say Mrs O was generally calm, polite, settled, not trying to leave or had any thoughts to leave and her sleep and appetite were good.
26. Within the MCA there are five principles, the fifth principle says:
‘Principle 5: If a person has been found to lack capacity for a specific decision, then any decision made on their behalf must be the Least Restrictive Option.’
27. Our adviser said DoLS is considered the least restrictive option in this case and the Trust’s decision in not detaining Mrs O was in line with Section 3 of MHA.
28. Our adviser said with regards to the process of DoLS, a consultant would usually complete the capacity assessment. However, the best interest assessment is done by someone who is not usually part of the MDT – this would likely be someone from the Local Authority (LA) who completes the discussion to get all of the information from the family, etc. Our adviser said if this individual did not agree with the DoLS, they would go back to the medical team if they believed the patient required a Section 3. This is essentially a second opinion from someone impartial from the care to agree to the DoLS.
29. Based on all of the evidence we have considered, the Trust acted in line with guidance by submitting and actioning a DoLS. The evidence shows Mrs O was compliant with treatment was not resistant to care and was not a risk to herself or others, therefore, did not require a Section 3. We have found no indication of failing by the Trust here, we hope Mr R is reassured by this.
Communication
30. Mr R says he and his sister were not kept advised of key decisions and it was left to them to chase for updates on a system and process which they had little, if any, understanding of.
31. The Trust said the plan for a DoLS application was discussed in a timely manner with Mrs O’s partner. He was identified as the nearest relative during the MHA assessment in July 2023, when the Section 2 application was made by the Approved Mental Health Professional. During this time, staff did not know that Mr and Ms R held Lasting Power of Attorney (LPA).
32. The Trust said there were two CPA meetings which took place in June and July 2023. There were also over 35 e-mail correspondences between late July and early October 2023, which were exchanged between the medical team, Mr R and his sister, Ms R.
33. The Trust said information about Mr and Ms R being Mrs O’s LPA was shared and known by ward staff six days into her admission. However, not all the team had full understanding of the importance of the primary role of the LPA, therefore communication around the DoLS application to the family was delayed.
34. The NHS website defines LPA as:
‘If you become unable to make decisions for yourself in the future, someone will need to make decisions for you. If you wish, you can officially appoint someone you trust to make decisions for you. This is called making a lasting power of attorney.’
35. GMC guidance says:
‘You must be considerate and compassionate to those close to a patient and be sensitive and responsive in giving them support and information.’
36. The records evidence a significant amount of email correspondence between the consultant, staff members and Mr R. The consultants appear to have responded to the family’s queries in a timely manner and apologised if there was a delay. They have also tried to explain the processes around DoLS and why it was happening.
37. There is also evidence the Trust gave the family links to information on DoLS and MHA handbooks.
38. Our adviser said there is adequate documentation in the notes and from the emails to evidence that the family were involved in decision making and it was also ultimately their choice of care home that she went in to.
39. The records show initially, when Mrs O was first admitted, there was confusion about who had LPA, but the Trust changed it as soon as it knew. The Trust has acknowledged this within its response letter and apologised.
40. Whilst the Trust could have done better here, we do not consider it is serious enough to amount to a failing. There was an initial short delay in communicating with Mr R, but the Trust rectified this once it was recognised. Ultimately, we believe Mr R did receive all of the information he needed to understand Mrs O’s care moving forward and the Trust explained why it requested a DoLS. We are pleased to see the Trust has acknowledged and apologised for the confusion following its investigation of Mr R’s complaint.
41. The Trust has also considered Mr R’s concerns about not understanding processes involved with the MHA and MCA and says it appreciates the importance of the family knowing and understanding this. It said it staff are producing information packs that can be easily understood by patients and their families, we are reassured to see the Trust has taken this action on the back of Mr R’s complaint.
42. We consider the Trust acted in line with guidance when communicating with Mr R and the family. It shared important information with them along with involving them in key decisions about Mrs O’s care and future living arrangements. We recognise the Trust did not identify Mr R and his sister were LPA’s initially which delayed some communication regarding the DoLS, but this was rectified as soon as it was made aware, and the Trust has apologised for this.