Last week I went to the House of Lords. It was fascinating, not least to note that all the Peers have named coat hooks, which reminded me of the primary school attended by my daughters.
I was there to listen to a debate on the implications of a recent legal case about the Deprivation of Liberty Safeguards (DoLS). DoLS are part of the Mental Capacity Act and are intended to protect persons lacking capacity from being unlawfully detained by the state.
It must be correct that persons lacking capacity are entitled to the same freedoms as the rest of us and should not be detained by the state without due procedure
So for instance if an elderly person with advanced dementia living in a care home attempted to leave the home it would only be lawful for that person to be stopped from leaving if a DoLS authorisation was in place confirming it is in that persons ‘best interests’ to be under the continuous supervision and control of the care home staff and unable to leave.
It must be correct that persons lacking capacity are entitled to the same freedoms as the rest of us and should not be detained by the state without due procedure.
The question which is now of concern to medics, social workers and lawyers is when should DoLS apply? For instance is there a DoLS scenario when someone is at end of life and is sedated has lost consciousness?
At present the legal answer to that is not clear - that is unless the person concerned has previously given express consent at a time they had capacity, in which case it is understood that consent covers the situation until the end of life.
It is complicated. But one thing that is increasingly clear to me is the importance of Advance Care Planning. After all ‘best interests’ are far easier to ascertain if the person concerned has expressed a view about care in advance of a decision being made on their behalf.
So Advance Care Planning is about discussion of your wishes and thoughts for future care. Ideally something should be written down and then that document kept by you to be updated by you at any time.
It is worth noting that in law you may not demand medical treatment which is futile, although you may refuse medical treatment and if you lose capacity your named attorneys may advocate for you in that regard.