24 February 2015

Deprivation of Liberty Safeguards – the story so far

Deprivation of Liberty Safeguards (DoLS) continue to hit the news, but who needs to do what about them is not really any clearer.

  • First, we had excoriating criticism from the House of Lords Select Committee tasked with reviewing the Mental Capacity Act (MCA). ‘Not fit for purpose’ was the judgement there.
  • P V Cheshire West and Chester Council and P & Q v Surrey County Council came next. In these cases the Supreme Court found that restrictions or potential restrictions placed on the young adults with learning and other disabilities amounted to a breach of their rights under Article 5 of the European Convention on Human Rights
  •  One consequence of a breach of Article 5 rights is a right to claim compensation
  • The Court also directed that judicial review of DoLS was required to avoid a breach of those rights.
  • The Court of Protection produced a new set of application forms and a streamlined procedure for the required judicial review

One of the difficulties is that the DoLS processes most care providers know are the Standard and Urgent Authorisation process set out in Schedule A1 of the MCA. Most will have their own processes for identifying when a DoLS arises, which forms to complete to initiate the process, and are aware that responsibility then passes to the Local Authority to assess the virtues of /justification for the request.

CQC has recently followed this with its own report on DoLS. Under the MCA, CQC has a responsibility to monitor DoLS nationally and to report to government. The report for 2013/14 laments the backlog within Local Authority teams in assessing applications for Standard and Urgent Authorisations. In practice, the approach CQC inspection teams are taking seems to vary. Some care providers dealing with seriously disabled young adults seem to be warned that Standard Authorisations will be required for every client. Some providers dealing with vulnerable elderly clients are being told that as long as they have a policy for each individual client, then they can rely on making an Urgent Authorisation request when they (for example) do not allow a resident the code for the key pad to leave.

Where does that leave care providers? If in doubt, apply is probably the best advice. More helpfully, when dealing with CQC be able to demonstrate you have taken the time to understand what DoLS are and what the circumstances of the recent cases were.

  • The Cheshire West cases involved young adults – 17 and 18 years old. Be particularly aware of the age and support needs of your clients. They all had learning disabilities complex care needs. In some circumstances behaviour had to managed for the client’s own safety.
  • The individuals were cared for in small scale care environments – local authority placements in bungalows with extensive care and support in the house and when at school or engaged in social activities
  • In one case the client was cared for by a step mother, who was quite clear that she had never had to act on it, but if her daughter had tried to leave the house without her or without suitable support, she would have stopped her from doing so.
  • DoLS apply as much to clients who are in respite care placements as much as with permanent residents.
  • If the care plan for any client refers to preventing them from leaving – apply for a Standard Authorisation
  • Watch for CQC further guidance, and indeed for other guidance as more cases are heard by the Court, and the principles are further refined and defined.

So where will problems arise?

There are already lawyers gearing up to make compensation claims when Article 5 rights are breached. So, make sure that as a care provider you have clear guidelines and records. One potential difficulty will be where the Local Authority decide not to approve an Authorisation request. You will need to discuss (and record the outcome of the discussions in the care plan) with Social Workers about what they think can and cannot be done, and if you feel there are risks associated with their proposals, make sure you clearly record your concerns. If you feel that you do not agree with the Local Authority refusal, ultimate authority to approve these decisions rests with the Court of Protection. Should your home have a policy about whether it will ever consider such an approach, and if so in which circumstances?

Should you have a policy of chasing your Local Authority about Authorisation requests which seem to be going nowhere?

Bear in mind, you are balancing your responsibility to provide safe and secure care, with a need to respect the individual’s rights. A Health and Welfare Attorney or Deputy can agree a particular restriction, in much the same way the Local Authority can approve a Standard Authorisation, but the Court still needs to review those restrictions. You should have a policy as to how you will deal with restrictions even if they are agreed by an Attorney or Deputy.

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About the Author
Charlotte Thornton-Smith, Partner, Head of Worcester Office and Health & Social Care Sector
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