Today, as Community Care reports, the CQC has published its annual report into the operation of ‘Deprivation of Liberty’ safeguards for 2010/11.
Deprivation of Liberty safeguards are a particular part of the Mental Capacity Act which allows a legal process of authorisation where there is felt to be a ‘deprivation of liberty’ in a care home or hospital related to someone who lacks the capacity to make a decision about whether they remain there or not. The process of decision-making relating to whether a Deprivation of Liberty is authorised revolves around the managing authority (the organisation which is potentially depriving the person of their liberty) and the supervisory body (the local authority or PCT (or whatever they are called now) where the person is or who is responsible for the care of that person (if, for example, they have been placed out of the local area the responsibility remains with the placing authority). The decision is made on the basis of a number of assessments (six actually) which are undertaken by at least two people, one of whom must be a doctor and one of whom must be a ‘Best Interests Assessor’ (who can be a social worker, nurse, occupational therapist or psychologist). The Best Interests Assessor, unsurprisingly, makes a recommendation not only on whether the deprivation is in the person’s best interest, but whether the framework and care plan constitutes a deprivation of liberty at all.
So that’s DoLs in a nutshell. What have the CQC got to do with it? Well, amongst other things, monitoring these Deprivation of Liberty authorisations is another part of their work.
Community Care run through many of the concerns raised in the document particularly the anomaly that as the CQC no longer inspect PCTs and Local Authorities relating to Adult Social Care there will be gaps in their knowledge bases as they rely on hospitals and care homes to report these issues to them.
They also highlight the other mentioned factors
The CQC also highlighted a number of areas where it lacked information, hampering its ability to monitor deprivations of liberty:-
• Deprivations of liberty in supported living and Shared Lives arrangements, as these are not covered by the safeguards. In such cases, the provider must apply to the Court of Protection to authorise the detention but the CQC is not routinely notified of this.• Deprivations involving children, as the safeguards only apply to people aged over 18. Ofsted has reported cases of children’s homes applying to the Court of Protection to authorise detentions.
• Direct feedback from service users and carers as the CQC only monitors the Dols as part of its wider regulation of services, not through dedicated visits to meet affected service users, as it does with Mental Health Act patients.
• Access to independent mental capacity advocates for service users under the Dols, and information on appeals against Dols decisions by users and their families.
It also said its efforts were hampered by the fact that care homes and hospitals were not fulfilling their duty to report Dols applications to the CQC, with evidence suggesting that just one-third of cases were reported.
As a Best Interests Assessor none of this surprises me and in fact, I’m amazed that these were even mentioned because this is not remotely ‘new’ information to anyone in the sector.
I’m only surprised the CQC actually know what DoL stands for as they seem to have been, from my viewpoint, entirely absent from any pretence at regulation.
I once came across a third party referral regarding a concern relating to a potential deprivation of liberty that came via the CQC and honestly, the lack of understanding of what it actually was or meant was worrying. It was as if it had just been another part of a tick box inspection where particular safeguarding issues = concerns about potential deprivation of liberty. Funny that. I felt it actually WAS a deprivation of liberty but for none of the reasons that the managing authority had written on the application (as guided by the CQC) but for a ream of reasons that I would never have been aware of if I hadn’t actually carried out an assessment – another reason that making decisions based on information given on a form can be wholly distorting!
One of the interesting points made in the report was the differences in regulation between patients who are detained under the Mental Health Act and those who are detained under DoLs as noted above. This to me is a massive gap but one that will only be remedied with money. What is needed is a wholesale investigation and review of the whole procedure of DoLs, how it is used differently in different parts of the country (because it is) and who and how it actually protects – in conjunction is a really extensive exploration of the role that case law has had in shifting the boundaries and definitions of what a ‘deprivation of liberty’ actually is.
It looks that as a result of this report the CQC will be reappraising how they monitor those people who are subject to DoLs and my advice would be to start with their own training about what constitutes a deprivation of liberty as well as a worrying lack of training in managing authorities (care homes and hospitals). While they have mentioned in their report improving and embedding knowledge of the Mental Capacity Act and the Deprivation of Liberty safeguards into their inspectors’ work, it is hardly going to be effective if these same inspectors never actually visit the homes and hospitals they are supposed to be inspecting.
So training seems to be sparse. Times are hard. Money is short. But that’s all the more reason to ensure that there is protection for those who are subject to these safeguards – or those who are not, but should be – than in times where more money was sloshing around in the care system.
The evidence seems to build that the Mental Capacity Act and its tenets is far from embedded in the culture of those who work in health and care services. The training is around but maybe its targeted poorly or the turnover of staff is high enough that those who need to know, don’t – including inspectors in the CQC and social workers in adult care, and doctors, and nurses. Any pattern emerging?
DoLs seems to lurk in an forgotten corner of Mental Health work but it lurks around the edges of those who are most in need of protection and safeguarding. We cannot afford to have a regulator, local authorities and a judiciary which does not take the responsibility to safeguard seriously.
photo by asso_2nd at Flickr
Unsafe Spaces 
One of the principle problems with DOLs is the fine line between restriction of liberty (which does not require authorisation) and actual deprivation. Whilst the Bournewood case gives some guidance the actual definition is very woolly.
I am not sure that general training of all staff is the answer. Yes it is important that they understand the basics of what constitutes deprivation (particularly if deprivation occurs unauthorised) but I believe that the real key is effective leadership and better, more in-depth, training for senior workers in the care home. It is the leadership of the care home who will be responsible for recognising when authorisation may need to be obtained and the leadership who has responsibility for implementing the authorised deprivation.
In my experience understanding of DoLs is limited and the message needs to get out to care providers how important it is that their senior staff need to understand the meaning of and implications of deprivation.
Thanks Tony. The issue of distinguishing between restriction and deprivation was never intended to be defined not least because it depends so much on personal circumstances but we can see how case law interprets to understand what a difficult job it can be for BIAs.
I think there needs to be general training of the precepts of the mental capacity act to every person in every care setting – ok, so the details of DoLs probably not necessary but every person who does hands on care interfaces with the Mental Capacity Act and needs to be very clear on their responsibilities.
Training alone isn’t enough, it needs to be embedded in practice but it’s not just about DoLs – it’s broader than that.
Certainly managers and senior staff need to know and social workers and medical staff and nurses and my experience sadly indicates otherwise.
I tend to come across DoLs in a limited way, doing duty queries when the adult lawyers are not around, but I would agree that it seems to be a very piecemeal approach and that it feels to me to be a risky approach to have such an important issue as mental capacity and how people who lack capacity get treated and protected to hinge so heavily on whether the workers on the ground are up to speed with the developments in the law. As advice deserts continue to spread with the reforms to legal funding, it is going to depend more and more on whether there happens to be a solicitor local to the service users family who understands this area and knows that there’s even something to challenge. I suspect there are far more ‘unofficial’ deprivations of liberty that are simply going unrecognised,unchallenged and the proper safeguards not in place just because nobody has ever pulled the LA up on what is happening with the individual.
I’ve consistently felt that one of the main (there are a few) chinks in this legislative ‘protection’ remains around the need for the managing authority to alert supervisory bodies to the potential deprivation.
I agree and worry particularly about those people who have no family to alert anyone to their potential deprivations.