If there’s one part of my work which is bound to cause confusion and misunderstanding, I’d say it’s the ‘Deprivation of Liberty Safeguards’ or DoLs as they are shortened to.
DoLs is a complicated corner of legislation that covers particularly those people who lack capacity to make decisions in relation to their care, accommodation and/or treatment (depending on the particular case) who are being ‘deprived of their liberty’ in a care or hospital setting. According to Article 5 of the European Convention of Human Rights, there is a residual ‘right to liberty’ so when someone is ‘deprived of their liberty’ (whether by being detained under the Mental Health Act or in prison) there has to be a legally prescribed process to appeal this and to ground the decision made. The ‘Bournewood Gap’ whereby there was no procedure to deprive people who lacked capacity to make decisions about residence/treatmetn/care was thus ‘closed’ by the introduction of these ‘Deprivation of Liberty Safeguards’ which provide a legal framework to authorise (and appeal, in legal terms at least) these orders.
To my knowledge, the majority of these orders particularly would be made in respect to people with learning disabilities or moderate to advanced dementia.
So yesterday the Department of Health reported produced it’s Third Annual Report (pdf) on data provided in respect to the amount of DoLs across England and the Independent published an article about the ‘huge spike’ in applications made – a jump by 27%.
There was some discussion last night on Twitter about whether this was ‘a good thing’ or not. The article rightly identifies the mess inherent in the current rather confusing and potentially inaccessible system, saying
DoLs are notorious among lawyers, care and health professionals for being overcomplicated and deeply misunderstood. Both the Care Quality Commission and the Mental Health Alliance have criticised the legislation with the latter describing the entire DoLS system as “not fit for purpose”
I’d join in with the criticism to an extent. The current system is overcomplex and the lack of a clear path through the system for service users and for family members is notorious and verging on oppressive. The routes of appeal particularly are unhelpful and challenging DoLs authorisations is a complex process. The other difficulty is that there is a lot of variance in definitions of what ‘deprivation of liberty’ means. This is something that courts reinterpret frequently however thinking back to the safeguards as exactly that – safeguards – mean that by the context of them narrowing we are at risk of providing these safeguards to fewer people.
However regardless of the complexity of the system, these ‘safeguards’ are not bad in themselves. They provide an extra layer of scrutiny into some of the care and treatment of those who lack capacity and can be a potentially very strong safeguard.
The problem is, well, one of them anyway, is that the care home or hospital where the deprivation of liberty is or may be taking place have to make the referral themselves.
Back to the Independent article, it explains that one of the problems is the massive discrepancies nationally and I would concur with this. This is what happens when ‘deprivation of liberty’ is poorly defined.
A breakdown of the figures show that whilst a local authority like Leicester made more than 400 applications last year, Reading only made one for the whole year whilst Hull made just three.
This seemed staggering to me. I am astonished/sceptical. Is it really possible that there has only been one person who is in Reading (or for whom Reading is responsible in terms of financing their placement) who was deprived of their liberty in a case or hospital setting over the course of an entire year?
Reading’s response is interesting in itself
A spokesman for Reading Borough Council gave no reason for why they had only authorised one DoLS last year but added: “We advise and support care homes to support vulnerable people, and only use DoLs as a last resort measure.
Well yes, but this more shows a lack of training and advise regarding legislation rather than something that Reading should be proud of. Because to me, it screams that there are potentially a lot of ‘unauthorised detentions’ knocking around.
The problem is that noone is likely to pick up on this.
The Deprivation of Liberty Safeguards are not ‘bad’ per se. They are safeguards and when they kick in, they require two independent assessors to provide a report explaining the terms of the deprivation as it exists, a limit to it and the reasons why it is in that persons’ best interest.
How could they be made better? (and do bear in mind, I’m venturing a little into ‘fantasy land’ here).
- Streamlining the appeals process so that it is on a par with rights to appeal to tribunals under the Mental Health Act
- Provide a mechanism to trigger referral that does not depend on the care home/hospital
- Better define what Deprivation of Liberty is
- Provide a regulation framework whereby regulators and inspectors are actually aware of ‘deprivation of liberty safeguards’ and the relevant legislation
Will that happen? Unlikely because there is little resourcing available but however much the phrase might make one shudder with confusion, the Deprivation of Liberty Safeguards are important.
They protect the rights of those who have little recourse and for whom some of the most important decisions are made by staff in hospitals and care homes and by local authorities. These need to be scrutinised and considered but the complexity of the system has been its undoing.
The presence of a DoLs authorisation in a care home is not a ‘bad’ sign. The absence of any (or few) DoLs authorisations in an entire local authority is not a ‘good’ sign.
Poorly administered or misunderstood DoLs’ authorisations are very bad though however used properly, it is very important to remember they are safeguards.
Reading’s pride at the existence of one authorisation over a year is not really something for them to be enormously proud of because I worry about the existence of unauthorised deprivations of liberty – not just in Reading (where obviously they advise and support care homes so well) but in all the care homes and hospitals in the country where those for whom Reading may be responsible are living.
Sometimes it isn’t as simple as saying ‘rising authorisations’ are bad or that they are ‘good. It’s about the subtlety of implementation and review.
Most worrying is the variation. If anything points to complex law and poor information sharing – it is that.
Something to learn for local authorities around the country, I hope.
And hopefully a lot more work for those who train people to understand and use the deprivation of liberty safeguards properly!