Health: Deprivation of Liberty Safeguards

Lord Howard of Lympne Excerpts

Monday 16th March 2015 Lords Chamber

[Lord Howard of Lympne (Con)]

My Lords, I support the noble Baroness, Lady Finlay, and declare my interest as the chair of Hospice UK.

In view of the limited time available to me, I shall bite my tongue hard and resist the temptation to comment on what the noble and learned Lord, Lord Hope, referred to as the juridical aspect of the problem that faces us and concentrate on what I think will be of most help to my noble friend the Minister when he considers the need for urgent action to deal with the issues to which the decision of the Supreme Court, and the legislation which lay behind it, have given rise. I entirely agree with what the noble and learned Lord, Lord Hope, said in that regard. Therefore, I shall concentrate on specific examples of difficulties which hospices have faced.

The first concerns a hospice that instigated an urgent deprivation of liberty application and applied for a standard authorisation. The urgent deprivation of liberty was put in place for seven days. On the sixth day, the social services DoLS team had made no contact, so the hospice contacted it for advice on how to proceed as the urgent deprivation was due to expire the next day. The team asked the hospice to implement an extension to the urgent deprivation for a further seven days, as they had a backlog of referrals and no best interest assessors available, which the hospice did. Six days later, still nobody had been to assess the patient, so the hospice contacted the DoLS team again and asked what it should do. The team confirmed they had a backlog of applications and would not be able to assess the patient prior to the urgent deprivation of liberty expiring, and explained that there was nothing else the hospice could do as it had done all that it was legally required to do. The hospice raised its concerns that this meant that it would be depriving a patient of their liberty without the appropriate authorisation and confirmed that it would be contacting the Care Quality Commission. The DoLS team agreed that the situation was not acceptable, but confirmed that there was still nothing it could do.

I give another example from another hospice which had a patient transferred from its local hospital who had metastatic cancer and had suffered a stroke. He was not responding or understanding when he was admitted, but did not appear to be in the last days of life. An urgent application and standard application for DoLS were made. An assessor came to see him from the local authority who seemed at a complete loss as to why she was there and what she was supposed to do. The patient died three days later.

A hospice has provided a series of examples of the kind of situations with which it is confronted. The first example is:

“An actively dying hospice in-patient placed on a Palliative Care Plan, who has lost capacity/consciousness, and is receiving sedative medication to manage symptoms of their terminal phase”.

The second example is:

“The delirious hospice in-patient who is receiving medication or support to manage this state”.

The third is:

“The wandering cognitively impaired patient at risk of falls (in an in-patient or day care setting) who has a nurse call system that activates when the patient starts wandering in order to alert nursing staff to return the patient to their area of care”.

These are all very specific examples of the problems that hospices now face on a daily basis as a result of the situation that has arisen.

Reference was made in an earlier debate in your Lordships’ House today to the unintended consequences of legislation. I submit that it is impossible to come across a better or, indeed, worse example of the unintended consequences of legislation than the situation in which we find ourselves. I suspect that it can ultimately be resolved only by fresh legislation; but at least, when one contemplates the prospects for such legislation, it ought to be free of party political difference, so there ought to be not a great deal of difficulty in building a consensus. I am not sure that it is necessary—the noble and learned Lord, Lord Hope, suggested that it is not necessary—to await the Law Commission’s recommendations. Perhaps it can be asked to expedite its work, but the problem is urgent and I urge the Minister to take urgent action to resolve it.