The DoLS gather speed

The Deprivation of Liberty Safeguards are currently being used far less often than the government forecast. Eight months after they were introduced, however, the DoLS have already begun to produce a body of case law.

Some judgments depend entirely on the facts of the case, but some are of much wider relevance. (DCC v KH and others, 11 September 2009; GJ v The Foundation Trust and others, 20 November 2009) In recent weeks, for example, Court of Protection judges have:

* Suggested that to transport an incapable person 100 miles (on a journey that was likely to take 2.5 hours) would be simple restraint, and not a deprivation of liberty, and so be covered by section 5 of the Mental Capacity Act 2005.
* Suggested that where a DoLS authorisation is in place, it will even permit a patient to be returned to the place in which he can be deprived of liberty.
* Ruled that when someone has to decide whether a patient could be detained under the Mental Health Act (and so be fall outside the DoLS), it is his view that counts, not the view of some notional reasonable man.
* Established a procedure to be followed by decision-makers in such circumstances.
* Given guidance on the approach to be taken when deciding whether a mental health patient objects to his care (and therefore can’t be brought within the DoLS).
* Confirmed that someone in a care home (as opposed to a hospital) who is receiving mental health care can be subject to the DoLS, even though he objects to that care.

It's too early, of course, to make generalisations. At the moment, however, the courts do seem to be taking a restrictive approach to what it means to be deprived of liberty. It seems that section 5 of the Mental Capacity Act allows doctors, nurses and social workers to do everything they could have hoped and more besides. Experience suggests, however,that the pendulum will start to swing back at some point. It's likely to be a case that does it, and there's a few of them coming down the line.