It’s official: in the first year of the DoLS there were far fewer applications than had been expected. That might not be very surprising, but a new report reveals that although authorisations also fell short, it wasn’t by nearly as many as was supposed. And if you want the protection of the Deprivation of Liberty Safeguards (DoLS), you’re 200 times better living in Leicestershire than in the Isle of Wight.
The report covers the period 1 April 2009 to 31 March 2010, which marked the first full year of the DoLS. It uses quarterly data provided by every local authority and NHS primary care trust in England. Among its key findings:
* There were 7,160 DoLS applications in England, compared to the government’s prediction of 21,000 for England and Wales combined.
* Consequently, there were also far fewer successful applications (3,297) than predicted (5,000). That said, the proportion of successful applications (46 per cent across the year) exceeded expectations, and it increased as the year went on, from 33 per cent in the first quarter to 54 per cent in the last. Maybe the DoLS are becoming better understood.
* DoLS authorisations for people in care homes generally lasted longer than those for hospital patients: 60 per cent of those granted by local authorities, but only about a third of those granted by PCTs, were for more than 90 days. (Around a quarter of authorisations were for between 91 and 180 days, with care homes accounting for 50 per cent more of them than NHS hospitals did.)
* About four per cent of applications that were refused concerned patients who were nevertheless found to be deprived of liberty. (In the absence of an authorisation, the hospital or care home concerned would be acting unlawfully if it continued to deprive a patient or resident of liberty.)
Local authorities and primary care trusts
Both local authorities and NHS primary care trusts have DoLS responsibilities, and the new report shows that the former received 5,397 applications and the latter, 1,763. The split was therefore 75 per cent to 25 per cent, against a government prediction of 80:20. Furthermore, PCTs granted nearly 49 per cent of the applications they received, and local authorities, around 45 per cent.
Just over three per cent of applications were made not by patients or their relatives, but by third-parties, such as social workers, nurses or care workers. Of these, over 80 per cent were directed to local authorities and 20 per cent to PCTs, and around two-thirds led to full assessments being performed.
It is possible, of course, for a DoLS authorisation to be granted by those responsible for the hospital or care home in which a patient or resident is deprived of liberty. But any such authorisation will only last for seven days, and it must be truly ‘urgent’. Surprisingly, perhaps, almost 5,000 substantive DoLS applications followed an urgent authorisation. Because every urgent authorisation should be followed by a substantive application, there must have been the same number of urgent authorisations. That number represents almost 70 per cent of all applications. It is worth bearing in mind what the DoLS Code of Practice says in this regard:
Wherever possible, applications for deprivation of liberty authorisations should be made before the deprivation of liberty commences. However, where deprivation of liberty unavoidably needs to commence before a standard authorisation can be obtained, an urgent authorisation can be given which will make the deprivation of liberty lawful for a short period of time. (Chapter 6, emphasis added)
Urgent authorisations should normally only be used in response to sudden unforeseen needs. However, they can also be used in care planning (for example, to avoid delays in transfer for rehabilitation, where delay would reduce the likely benefit of the rehabilitation. (Paragraph 6.2, emphasis added)
There may be concerns that urgent authorisations are being misused. If so, they will be compounded by the fact that in fully 55 per cent of cases, the application that followed an urgent authorisation did not itself result in a substantive authorisation.
It has been clear for some time that DoLS activity is not at the same level in every part of the country. The greatest proportion of applications – 17 per cent - was received by local authorities and NHS primary care trusts in the East Midlands, and then in the London region (16.8 per cent), the South East (15.7 per cent) and the North West (10.7 per cent). The smallest proportion of applications was received in the North East (6.3 per cent) which also, perhaps oddly, had the second-largest proportion of approvals (52.8 per cent). The largest number of approvals was 54 per cent – again in the East Midlands - and the smallest, in the West Midlands (40 per cent) and the East of England (39 per cent).
But the new report is sufficiently detailed to show that the same wide variation exists within, and not just between, regions. Durham, for example, received 135 applications. In the local authorities bordering it, the next highest numbers were in Hartlepool, which received 67 applications, and Darlington (52). Gateshead had 28 applications (and Stockton-on-Tees 22), but Sunderland received only twelve and Northumberland only eight. The population of Northumberland is around two-thirds that of Durham.
The position is similar among local authorities in the south-east of England. Essex, for example, received 203 DoLS applications. Among its immediate neighbours, the next busiest was Hertfordshire, but its 54 applications represented only slightly more than a quarter of the total across the border. And the next highest had less than a fifth: Suffolk and Waltham Forest, with 35 each. Redbridge had 33, but then it was Havering, Enfield and Southend-on-Sea, all in the low-20s, before Thurrock on 15 and the Medway Towns on eight applications. Peterborough is only one local authority (Cambridgeshire) away from Essex, and it recorded no applications at all. But one of Peterborough’s neighbours, Northamptonshire, had 61 applications more (and has a population only around a quarter larger).
Essex cannot, however, claim the most DoLS applications among local authorities. That honour falls to Leicestershire, where they numbered 233. Completing the top four are Lancashire, which received 192 applications, and West Sussex, which received 163. The majority of local authorities received fewer than 50 applications, while Torbay and the Isle of Wight each received three, and Bath & North East Somerset and the Isles of Scilly were among the local authorities claiming to have received two and no applications respectively. Given that the DoLS are far more likely to affect people over 65 years-of-age (see below) these negligible returns are surprising, coming as they do from areas with significant numbers of aged residents.
Among NHS primary care trusts, Leicestershire was supreme, with Leicester City PCT claiming 136 applications and Leicestershire and Rutland PCT 115. The next busiest PCT was Nottingham, with 47 applications, followed by West Sussex (39) and Manchester (35). The majority of primary care trusts received fewer than 25 applications, and despite the relatively high number (36) claimed by its partner local authority, Blackburn with Darwen PCT did not receive a single application, a distinction it shared with Herefordshire, the Isle of Wight, Barking & Dagenham and Greenwich Teaching PCTs.
These combined statistics, therefore, reveal some striking anomalies, not least between Leicestershire, where there were 601 applications, and the Isle of Wight, where there were just three. Their populations differ greatly, of course, but whereas in the former region it took only 1,075 residents to account for each DoLS application, in the latter region it took 4,667.
Sex and age
The new report says a greater proportion of applications (53 per cent) concerned women than men. This disparity might, however, be a function of demographics, because two-thirds of all applications were made in respect of patients over 65 years-of-age, and women are more numerous in that group. (In fact, the rate of applications per 100,000 of population for those over 65 is nine times that for the 18-64 age-group.)
Over 90 per cent of applications concerned patients in the ‘White’ census group, with 2.6 per cent and 2.5 per cent concerning those in the ‘Asian’ and ‘Black’ groups respectively. In broad terms, the report says, these figures are “consistent with the make-up of the population as a whole”. It is nevertheless striking that a smaller proportion of DoLS authorisations were refused for patients in a minority ethnic group than for ‘White’ patients. In the case of ‘Asian’ patients, the difference is fully five per cent.
In 83 per cent of cases, refusal of a DoLS authorisation was because deprivation of liberty was not felt to be in the patient’s best interests. Given the nature of best interests assessments, that might, of course, mean that the patient was not in fact deprived of liberty (however that concept is to be understood).
As might be expected, given the greater number of applications they received, local authorities generally accounted for a larger proportion of the refusals in each class. The exception, however, was ‘eligibility’ – essentially, the decision whether a patient might be better detained under the Mental Health Act. Here, fully two-fifths of refusals were for patients in hospitals. (Given that there are more hospitals in which the MHA may be used than care homes, that is not, perhaps, so surprising an outcome.)