Latest research findings
The deprivation of liberty safeguards (DoLS) were introduced in 2009 to provide adults who lack the capacity to make decisions about accommodation for care and treatment with protection against arbitrary detention in hospitals and care homes.
The latest research findings tell us that, three years on, this much-maligned piece of legislation is still experiencing significant teething problems. The Care Quality Commission (2012) reported that one-third of care providers have not trained their staff on DoLS, and it came across many providers who are unaware of when they need to seek authorisation for a possible deprivation of liberty.
The Mental Health Alliance conducted research among its members and found an array of problems with the way supervisory bodies were applying the safeguards. When selecting a person’s representative, some Best Interests Assessors were overlooking relatives who opposed detention, in order to circumvent possible legal challenges.
In addition, supervisory bodies were not referring detainees and their representatives for support from advocates as they are legally obliged to do under section 39d of the Mental Capacity Act. The Alliance, like the CQC, found that people were very uncertain of when the safeguards should be applied, and sometimes sought to avoid using them where they should (Hargreaves, 2010; Mental Health Alliance, 2012). We should be concerned, but perhaps not surprised, by these findings.
Researchers at the Maudsley Hospital asked a group of psychiatrists, Best Interests Assessors, Independent Mental Capacity Assessors and eminent lawyers whether they thought 12 case studies constituted a deprivation of liberty. The professionals reached agreement in only one case, and disagreements were most pronounced among the eminent lawyers (Cairns et al, 2011a; 2011b). Other research showed that the cost of conducting the DoLS assessments alone was double that predicted by the impact assessment (Shah et al, 2011).
The Department of Health (2012) has increased funding to nearer that figure, but the funds are not ring-fenced and do not take into account the incredibly high cost of litigation connected with the DoLS (Series, 2012).
The impact research should have on practice
Social workers should be working hard to ensure that local providers, and their colleagues, understand the importance of applying the safeguards where suitable. It can be a challenge to promote the use of the DoLS where they are seen as resource intensive and confusing.
However, failure to apply the DoLS where they should be applied can end up costing more in the long run, at human, financial and reputational levels. Where there is uncertainty about whether or not a situation amounts to a deprivation of liberty, social workers should bear in mind the important comments of Mr Justice Charles in A Local Authority v PB & Anor.
He warned that there will always be ‘borderline’ cases where we are uncertain if there is a deprivation of liberty. Charles J advocated applying the safeguards anyway in borderline cases, to ensure the person’s rights are protected, and that providers and supervisory bodies are better protected against findings of unlawful deprivation of liberty.
Questions for social workers
- Does the number of applications from providers in my area reflect the number of people who might be deprived of their liberty in those services? Do we need to promote awareness and training on DoLS?
- Are we proactively making referrals to s39D IMCAs when the detainee or their representative would be unable to appeal without their support, rather than waiting for people to ask for help?-
- Am I keeping up to date with case law on the meaning of deprivation of liberty, and applying the safeguards wherever there might be any doubt over whether or not a person is deprived of their liberty?
References and further reading
Cairns, R., Brown, P., Grant-Peterkin, H., Khondoker, M. R., Owen, G. S., Richardson, G., Szmukler, G., & Hotopf, M. (2011a), ‘Judgements about deprivation of liberty made by various professionals: comparison study’, The Psychiatrist, 35(9), p344-349
Cairns, R., Brown, P., Grant-Peterkin, H., Owen, G. S., Richardson, G., Szmukler, G., & Hotopf, M. (2011b), ‘Mired in confusion: Making sense of the Deprivation of Liberty Safeguards’, Medicine, Science and the Law, 51(4), p228-236