Deprivation of liberty

A rare and unpleasant duty: involuntary treatment and the deprivation of liberty

freedomOne of the most disturbing and unexpected duties of a doctor in training is that of depriving a person of their liberty.

The following secanario describes the emotional and intellectual challenges involved in sedating someone against their will to keep them in hospital. It is worth remembering that the doctors asked to deal with these situations can be junior and inexperienced. Their exposure to the legal frameworks that permit a doctor to do legally what only judges, police officers, prison warders, soldiers and psychiatrists do routinely, may amount to no more than 15 minutes during induction or the fading memories of a lecture three years before they qualified.

A 75 year old man with early dementia (which has had little effect on his life or degree of independence thus far) is admitted to hospital. He may have a mild chest infection, and is on intravenous antibiotics, but it’s one of those diagnoses that is made more because something “must be going on” than due to solid clinical evidence. During the night following his admission the house officer on call is asked to attend the ward urgently. The man is trying to self-discharge. The doctor, Paul, is used to this, although he is usually asked to dissuade younger patients, such as the alcohol addicted, those who regard themselves as indestructible or, sometimes, high-flyers who just ‘don’t have time’ to be sick!  He sits with the man, and hears how he is worried about his wife at home, unconvinced that he really needs to be here, unhappy with the whole ‘overreaction’. He is a bit agitated, but asks, quite sensibly and insightfully, if his medications can’t be delivered in tablet form. Paul thinks he has a point, but it’s the middle of the night and it would be crazy to start arranging discharge. Any anyway, when he looks at the blood resuts there are some very high inflammatory markers; there may be more going on medically than meets the eye. Paul seems to succeed in reassuring the patient, he agrees to stay, and that’s that.

The same ward calls Paul at 3AM. The patient is raging, marching up and down the ward in a highly agitated state; he has sworn and shouted, and he has cracked a pain of reinforced glass in the main door (which the nurse on charge locked during the build up). There are two security guards on the ward already, hanging back a few yards, not wishing to inflame the situation but ready to restrain him if necessary. Paul, a head shorter than the patient but over 50 years his junior, looks around him. Other patients are awake, some are equally as confused and relatively oblivious, some are young adults who are clearly horrified by the spectacle.

Paul talks to the patient, but the nursing staff have already tried reassurance and calm words without success. The patient pauses in his bubble of discomfort, indignity and despair, ringed by anxious faces and the muscle of the security guards. Paul asks him to go back to his bed space, but the words don’t seem to be heard. Paul approaches and attempts to lay a hand on the patient’s own hand, but immediately his arms rise and he begins to push away whatever spectres and threats he sees before him. The house officer perceives uncommon strength in the muscle of those arms, and knows from experience that delirium can lend the frailest patients the vigour of youth.

For this must be delirium. A usually calm man comes into hospital, wakes up in unfamiliar surroundings and tries to get home. His thoughts are clouded by the products of infection, cytokines, myriad substances, and, disinhibited, he does what he has never done in his life and breaks a window pane.

Then things deteriorate. The patient charges forward, collides with the resuscitation trolley, grabs it and swings it out into the corridor. Boxes fly onto the floor, a drip stand topples. He smacks another window but does not break it. He reacts to the pain. It is now getting out of hand. Paul knows what must be done. He instructs security to hold the patient and take him to his bed space. By this time there is a third member, and between them they pinion the patient and drag him away. The house officer looks around at the other patients, at their wide eyes in the dimmed light, and wonders how this looks. Once on the bed the patient begins to scream, for his every effort is met by opposition. A nurse has already gone for the lorazepam, and now presents the house officer with a two ml syringe containing 1mg of that drug diluted in one ml of saline.

Paul identifies the place where he will give the injection and asks the security guards to keep him as still as possible. Gently, Paul exposes an area of thigh, quickly wipes the skin and plunges the needle. He kneads the muscle for a few seconds, encouraging absorption, and hopes that it will begin to take effect soon. It does, miraculously. The tone leaves his patient’s limbs and his vigour drains away. A nurse thanks Paul and the activity around the bed subsides. Good job.

But it was not so simple. While he was preparing the skin and preparing himself for the injection, Paul paused. He looked at the patient’s face and listened to his words. The elderly man was articulating clearly, saying things like ‘Don’t let them do this’ and ‘Take me home’ and ‘Why are you letting them do this?’

Taken in isolation each cry and phrase appeared to reveal a very clear intent, a transparent desire not to be here, not to be sedated and controlled. Every planned action in Paul’s stressed mind was contrary to the patient’s wishes. But he knew that he must give the injection because the patient really was not of sound mind at this time. He was delirious, he had no mental capacity. He was ‘incapacitate’ and a danger to himself, let alone others. As he brought the syringe close to the skin, Paul sensed a sudden relaxation, and looked up at the patient’s face. His eyes, boring into those of the young doctor’s, communicated a depth of emotion and desire that was hard to ignore. They were the same eyes, windows into the same mind, that two hours previously had explained in logical terms why he wanted to go home. Perhaps this was just anger. Haven’t we all ‘lost it’, as children, after a punch on the nose or a terrible taunting. Wasn’t he just extremely frustrated, able to see no other way out. Perhaps, having tried reason, he could no more than scream and fight. Was this truly a loss of capacity?

During the pause Paul asked himself if what he was doing was right. He quickly ran through the mental capacity checklist:

Can he understand what we’re saying to him?

Can he retain that information long enough to be able to make a decision?

Can he weigh up that information and understand the consequences of his decision?

Can he communicate his decision?

Well, Paul thought, let’s consider this. Understand – why not, who is to say. He could before. Retain? We’re not really giving him the time to test that are we. Weigh up? That’s pretty subjective…he already told me what he thought about the risks of going home versus staying in hospital, when we met earlier. It’s the same decision he’s being asked to consider now, and his point of view has evidently not changed. And communicate? Hell yes, he’s communicating in every conceivable way. So is he really incapacitate? I can’t absolutely, with complete and utter confidence, say that he does not. But as he bucks and shouts under the well-trained restraint provided by ‘security’, this intellectual debate seems irrelevant. If I don’t do something he will stand up, charge out of the ward in his night clothes and run through the car park into the road. There is no question as to what is right. I must sedate him in his best interests.

As Paul walks away from the ward into the numerous tasks that must be completed before the sun rises, he comforts himself. Of course it was right. Any right thinking doctor would have done the same. But this challenge positioned him in absolute opposition to the expressed desires of his patient. This was worse than causing pain by messing up venflons; it was more distressing, in its immediacy and philosophical distastefulness, than telling someone they have cancer.


In the field of psychiatry, where involuntary detention and treatment is a common enough demand, there is a well established and well rehearsed legal framework to guide practitioners and protect patients (the Mental Health Act). In the field of general medicine, where physical illness can impair cognitive function, things are less clear, although efforts have been made over the last decade to draft appropriate laws and make their application straightforward. The Mental Capacity Act 2005, and its Deprivation Of Liberty Safeguards (DOLS) addition (2009) are realistic and practical. As described on the Alzheimer’s Society website,

‘In an emergency, the management of the hospital or care home may grant itself an urgent authorisation, but must apply for a standard authorisation at the same time. This urgent authorisation is usually valid for seven days, although the supervisory body may extend this for up to another seven days in some circumstances. Before an urgent authorisation is given, steps should be taken to consult with carers and family members.’

The DoLS legislation appears aimed more at ongoing situations where individuals are re-located against their will, locked in, their movements and activity controlled. In fact DoLS legislation was brought about in response to the ‘Bournewood case’ (well described in this European Human Rights Commission webpage) in which a man with autism was kept in hospital for treatment that doctors felt was in best interests. His usual carers complained and took the hospital to court. The government, seeing that there was a legal gap whereby reasonable deprivation of liberty could not be legal, enacted DoLS.

However, what we as doctors are often asked to do on-call or in the emergency department may not amount to deprivation of liberty. It may feel like it, but ‘restraining or restricting’ a patient in their best interests may not require DoLS to be invoked. There is a role for common sense applied urgently and safely. As described on the legal firm Morgan Cole’s website,

Restraint or restrictions on an incapacitate individual’s liberty can be justified under the Mental Capacity Act 2005 provided:

– reasonable steps are taken to establish that the individual lacks capacity in relation to the matter in question; and

– it is reasonably believed that the individual does lack capacity in relation to the matter in question; and

– it is in the best interests of that individual for the act to be done; and

– it is reasonably believed that it is necessary to do the act to prevent harm to that individual; and

– the act in question is a proportionate response to the likelihood of the individual suffering harm; and

– the act in question is a proportionate response to the seriousness of that harm

Paul and his patient seemed to meet these considerations, but the thinking and empathic doctor, highly trained in the art of understanding a patient’s plight, listening to their words and seeing their point of view, will never find it easy.


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