The Care Quality Commission today publishes its fifth annual monitoring report on the implementation of the deprivation of liberty safeguards (DoLS). These are part of the Mental Capacity Act, and they protect the rights of adults in care homes and hospitals who lack mental capacity, in situations where they need to be deprived of their liberty to be given necessary care or treatment.
The question of how we can provide care for such people who are unable to consent to treatment is the subject of this report. For people with dementia, a brain injury or a learning disability who cannot provide consent to necessary care in order to keep them safe, a series of assessments are carried out in order to make sure the care that is being provided is in their best interests. This is about recognising people’s dignity and equality and human rights.
The report examines the first five years of implementation of DoLS, during which time the numbers of applications to use the deprivation of liberty safeguards rose from 7,200 (per year) in the first year to 13,000 (per year) in the year ending in March 2014. We have commented in successive annual reports that these relatively low numbers probably masked unrecognised deprivation of liberty.
Making a DoLS application ensures that a person’s rights are protected. An application to deny a person their liberty is only granted if the proposed course of action is considered to be in their best interests, and if there is no other way to care for them or safely provide treatment. It also ensures that the situation is reviewed to make sure that it remains in their best interests.
The report also shows that throughout the first five years there have been continued regional variations in application rates, wide variations in practice and training in health and social care organisations and a persistent low number since 2011 (when this became a requirement), of providers notifying CQC of applications to use DoLS and the outcomes.
In March 2014, the Supreme Court clarified that a person lacking mental capacity to consent to the suggested arrangements is deprived of their liberty if they are both:
• Not free to leave and
• Subject to continuous supervision and control.
As a result, the numbers of applications for use of the deprivation of liberty safeguards has soared, from around 13,000 a year to around 55,000 in the first two quarters of 2014/15.
The report points out that this rise in applications is a good thing, since it shows willingness among providers to protect the rights of individuals, and encourage external scrutiny of their care when a vulnerable person might be deprived of their liberty.
David Behan, chief executive of CQC, said:
“Both the House of Lords and the Supreme Court criticised the Deprivation of Liberty Safeguards for their bewilderingly bureaucratic complexity. I have considerable sympathy with this view, and welcome the decision by government to ask the Law Commission to look for a framework that is simpler, while still protecting peoples’ rights.
“It is essential that all professionals looking after people who are unable to give consent deliver best practice in order to protect their rights.”
The full report can be found here: http://www.cqc.org.uk/content/deprivation-liberty-safeguards-201314
Recommendations from the report:
• Local authorities continue to consider the use of advocacy for all those subject to the Deprivation of Liberty Safeguards.
• Local authority leads for the MCA and Deprivation of Liberty Safeguards create good working relationships with their local coroners. This is likely to be of great benefit to ensure that a consistent message is given to providers and so that they can work together in dealing with the considerable extra activity as a result of the Supreme Court judgment.
• Local authorities and Independent Mental Capacity Advocacy (IMCA) providers work together to enable IMCAs to carry out their role to support the person or their unpaid Relevant Person’s Representative (RPR) to challenge an authorisation to the Court of Protection when it is the person’s wish, whatever the IMCA’s views on the rightness of the authorisation.
If a provider of health or social care thinks it needs to deprive an adult (aged 18+, who lacks mental capacity to consent to what is proposed) of their liberty to give necessary care or treatment, they must seek authorisation of the deprivation of liberty. Care homes and hospitals can apply to their local authority for use of the deprivation of liberty safeguards. For all other settings, such as supported living and shared lives, authorisation can only be given by the Court of Protection.
Authorisation is granted only if the proposed course of action is considered to be in the best interests of the person, and there is no less restrictive way to care for them or safely provide treatment they need. The deprivation of liberty is authorised for the shortest possible time, and provides external scrutiny of the arrangements, as well as enabling the person to challenge the authorisation.
The deprivation of liberty safeguards became law in April 2009 as part of the Mental Capacity Act 2005.
The role of the Care Quality Commission (CQC) is to monitor, and report to the Secretary of State for Health on, how the deprivation of liberty safeguards are being implemented.