Care home briefing 99 – The operation of DoLS in England 2009/10
The Mental Capacity Act Deprivation of Liberty Safeguards (DoLS) came into force on 1 April 2009. The Safeguards enable hospitals and care homes to obtain a power so that they can lawfully deprive service users of their liberty. This applies when service users lack capacity to consent. The safeguards aim to protect some of the most vulnerable people in our society.
The Care Quality Commission (CQC) has a duty to monitor the application of the DoLS. This monitoring covers hospitals and care homes as managing authorities and primary care trusts (PCTs) and councils as supervisory bodies.
The first report on DoLS was produced by CQC in March 2011, and provides an overview of how they were implemented and used in their first year. This briefing provides a summary of CQC ’s findings and recommendations.
- There was a much lower number of applications to obtain authorisations to deprive someone of their liberty than was expected. Only 7,160 applications were made in England, whereas 21,000 applications were predicted for England and Wales.
- The largest proportion of applications were for a person who lacked capacity because of dementia. Physical disability, frailty and/or temporary illness was the next largest group, followed by learning disability.
- More than half the applications in the first year were not authorised. PCTs rejected a larger proportion of applications than councils, on the grounds that the Eligibility Assessment was not met. In these situations, the Mental Health Act may have been a more appropriate instrument.
Findings re. supervisory bodies
- Most PCTs and councils have made good progress in implementing the mechanisms and processes for the DOLS. However, some PCTs were still at the early stages of implementation more than a year after the DOLS were introduced, which CQC has said is not acceptable.
- Several local areas had joint and/or cofunded teams to deal with the DOLS, demonstrating efficient and effective joint working between PCTs and councils.
- A common feature of supervisory bodies was for DOLS teams to be based in safeguarding teams.
- While this may appear sensible, CQC has said that the two issues are different and services must balance the need to protect a service user with the need to empower them and protect their rights.
Findings re. managing authorities
- To comply with the legislation, care homes must ensure that their staff understand the DOLS and that they are aware of when they may need to use them. CQC came across many instances were members of staff were unaware of the DoLS and the implications for their services, and some where even the care home managers demonstrated a clear lack of understanding about DoLS.
- CQC found several examples where some form of restraint was being used. Restraint can be appropriate and lawful under the Mental Capacity Act when used from time to time to prevent harm to a person who lacks capacity, if it is a proportionate response to the likelihood of serious harm. However, where restraint is frequent, cumulative or ongoing, it may amount to a deprivation of liberty. CQC found several examples of restraint being used, but where staff had failed to consider in which circumstances the use of restraint may become a deprivation of liberty. Several care homes were also restricting the movement of service users around the home, which could be viewed as a form of restraint.
- CQC found several homes with restraint policies that had not been updated to reflect the Mental Capacity Act or DOLS, which they said was not acceptable.
- Some care homes restricted residents’ access by locking doors or having doors with keypads. While this may be necessary to prevent some people from being harmed, the care home also needs to follow the Deprivation of Liberty Code of Practice if the restrictions amount to a deprivation of liberty. Similarly, CQC found a rise in the proportion of locked acute hospital wards. Even some informal patients were not free to leave and locked doors or keypads were used to restrict entry and exit to and from the units for all patients. CQC said that this raises concerns that some informal patients are at risk of ‘de facto’ detention, or a deprivation of liberty without legal authority, which is not acceptable.
- CQC found that there is an uncertainty as to what it means for a person to be deprived of their liberty. There is no legal definition of the circumstances that may constitute a deprivation of liberty, but this should not be used as an excuse for staff to be unaware of the types of practice that should lead them to consider that people using their services may be deprived of their liberty.
Recommendations for improvement
The CQC has made several recommendations for improvement, as follows:
- The Department of Health has previously issued several briefings to aid understanding of what constitutes a deprivation of liberty, but CQC has recommended that more regular briefings should be developed. Such briefings should be clear and concise and explicit about the implications of the case law for practice, and be written in a way that is accessible and more easily applied to practice than in previous briefings.
- All organisations should ensure that staff are effectively trained in DoLS and that they understand the requirements placed upon them by DoLS. All organisations should also ensure that staff fully understand the requirements of the wider Mental Capacity Act.
- Managing authorities should ensure that staff are fully aware that they should be using the least restrictive methods to care for people using services. People should only be deprived of their liberty if it is in their best interests and essential to ensure that they do not come to harm.
- There have been complaints about the DoLS system being over bureaucratic. CQC has therefore encouraged the Department of Health to consider whether it may be possible to reduce the amount of paperwork needed to use DoLS.
RadcliffesLeBrasseur can provide training sessions on DoLS, the Mental Capacity Act and the Mental Health Act. If you would be interested in arranging for a member of our Mental Health Team to come and deliver a training session to your staff, please contact Andrew Parsons at firstname.lastname@example.org or call 0207 227 7282.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.