I wrote recently about the Deprivation of Liberty Safeguards (DoLS), by which incapable people can be deprived of liberty but given some basic protection at the same time. (See: here) I received a number of heartfelt, though by no means unanimous, responses, so I thought it might be helpful to report something of what my correspondents said.
No one disagreed that the number of DoLS applications is well below what was expected, but not everyone accepted that in some places, applications are actually being discouraged. One DoLS lead was “disappointed” by my suggestion. He said, “My team and I are working very hard at promoting the importance of the safeguards and very much take an if-in-doubt-apply approach”, and he described the DoLS as “a very powerful tool for positive change and holding services to account.”
Some correspondents felt the statistics might not reflect bad practice. One, a doctor in an area with little DoLS activity, referred to his local training strategy, which “emphasised that deprivation of liberty amounts to relatively draconian control over someone's life.” He favoured an approach based on the Mental Health Act: “For the last 20 years I have been a proponent of the use of guardianship as a means of making important accommodation decisions for people who lack capacity, and we appear to have roughly trebled the number of guardianships used in the last ten months.” Of course, while guardianship may be appropriate for those who are not within the DoLS, the conventional view is that it has little to offer where someone is deprived of liberty.
Most correspondents considered the safeguards unduly complex, and some reported general opposition to their use. One, a Mental Capacity Act (MCA) co-ordinator, said, “Many senior people consider deprivation of liberty a ‘bad’ thing and therefore are reluctant to invite external scrutiny on whether they are responsible for it.” Some felt the process might fail even without overt opposition. A DoLS lead wrote, “Care managers are not always recognising behaviours that warrant the need for a referral”, while someone else said the MCA “is not clearly and properly understood by many practitioners on the ground and certainly not by managers of homes and hospitals”. This might, he felt, have profound implications: “I am not sure that decision-makers are even getting through the starting gate of the MCA, never mind reaching the logical finishing line that is DoLS.”
Several correspondents identified poor planning as a problem. The doctor who favoured guardianship said that before resorting to the DoLS, everyone “should consider first whether they could change the care plan so that an individual was not being deprived of their liberty - emphasis on choice, few restrictions and keeping relatives on side.” One DoLS lead, however, saw this differently: “care managers drag their heels trying endless means of pacifying anxious service-users, only resorting to a DoLS referral after about three months of perseverance.” Far from it being necessary to keep relatives onside, she said most are “fearful of the possibility of loved ones being discharged to their care, and therefore their views about whether there is deprivation of liberty are somewhat distorted”.
This correspondent said that recently, “a wife told an assessor that her husband was absolutely fine, rarely spoke of wishing to leave the care home and could easily be persuaded to behave. This was in stark contrast to what had actually been occurring.”
Inadequate recording was also identified as a problem, not least by this same DoLS lead: “One of our referrals … failed due to insufficient evidential logging of the service-user’s behaviour. This raises the question: given that few care homes are meeting the guidelines for accurate and consistent recordings, will we ever be able to evidence a deprivation of liberty?”
Finally, several correspondents agreed that uncertainty about deprivation of liberty itself is a significant problem, and that different assessors might take different views, especially in more complex cases. A DoLS lead said, “I conclude that unless a person is shouting ‘let me out’ from the rooftops, wrestling staff to the floor and needing to be sat on, constantly making an opportune exit through any open door or needing heavy sedation to control their behaviour, it is just not obvious enough to amount to deprivation of liberty.”
The Deprivation of Liberty Safeguards continue to excite great debate, even if – or maybe because – they are so rarely encountered. From my own postbag, however, it seems that views are polarised, and that some people are profoundly dis-satisfied, both with the purpose of the DoLS and with the way they are used.
(A shorter version of this post appeared as a letter in the New Law Journal.)
