Wednesday 1 July 2009

Why aren't more little old ladies being locked up?


Since April, many hospitals and care homes have had the power to deprive people of their liberty. That is the result of the DoLS – the Deprivation of Liberty Safeguards. The government prefers to see the DoLS as protection: a way of preventing the arbitrary detention of the old and the incapable. It’s certainly true that the DoLS were introduced to fill a gap in the law – a gap rather embarrassingly revealed in 2004 by the European Court of Human Rights. So maybe we should be worried that the new safeguards aren’t being used.

The powers given by the DoLS aren’t unfettered: they can only be used with prior permission from a PCT or a local authority. And there are some broad problems with the DoLS, not least the fact that because of the way they are drafted, they might not even apply to the patient whose case led the ECtHR to do what it did. Furthermore, a recent decision of the House of Lords in a public order case might mean that there is no one – not a single patient with a learning disability or little old lady with dementia – to whom the DoLS apply. Maybe that explains the figures.

The government predicted that before next spring, approximately 21,000 people would have their cases assessed, and that a quarter of them would then be brought within the DoLS. According to the first statistics, that isn’t going to happen.

* Of the more-than-300 local authorities and PCTs charged with implementing the safeguards, well over two-thirds say they have had fewer than five DoLS cases and almost a quarter seem not to have had any cases at all.

* If the experience of the first two months is anything to go by, only just over 8,000 – as opposed to the forecast 21,000 – people will be assessed in the first year of the DoLS, and the number of people brought within the substantive safeguards will be little more than a third of the predicted number.

* In fact, these national figures conceal an even more striking regional picture. One council, for example, reported 105 DoLS cases in April and May, while only two of its neighbours even reached double-figures.

But there is another explanation for this: that in some – quite a few, in fact - parts of the country, DoLS-applications are being actively discouraged. That would be worrying, and not just because public bodies would be failing in their duties. Hospitals and care homes too would be placed in jeopardy. Where permission is required to deprive an incapable person of liberty, the failure to obtain it will be unlawful and that one was discouraged from seeking it will be no defence.