The government should replace the Deprivation of Liberty Safeguards (Dols) with a new framework that better protects the human rights of vulnerable adults detained in care settings.
That was the conclusion of the House of Lords select committee on the Mental Capacity Act 2005, which today delivered a damning verdict on the implementation of both the MCA and the Dols following a 10-month inquiry.
It said the current operation of the Dols was leading to thousands of people who lacked capacity to consent to their care arrangements being deprived of their liberty unlawfully in care settings without the protections the safeguards are supposed to provide.
‘Poorly drafted and poorly implemented’
“The provisions are poorly drafted, overly complex and bear no relationship to the language and ethos of the Mental Capacity Act,” said the committee’s report. “The safeguards are not well understood and are poorly implemented. Evidence suggested that thousands, if not tens of thousands, of individuals are being deprived of their liberty without the protection of the law, and therefore without the safeguards which Parliament intended.”
Mental Health Alliance Dols lead Roger Hargreaves said the committee had gone further than expected in its recommendations about Dols.
“This is a clear rejection of the government’s position, which has consistently been to deny that there is anything seriously wrong with Dols or any need to do anything more than revise the Dols code of practice, and it will be interesting to see its response,” he said.
The committee was chaired by Lord Hardie, formerly Scotland’s most senior law officer, and included former Mental Health Act Commission chair Lord Patel and Baroness Hollins, professor of the psychiatry of learning disability at St George’s, University of London. It held 15 evidence sessions with ministers, civil servants and experts from social care, health and the law, consulted with a group of learning disabled people, and received 206 pieces of written evidence.
The committee received evidence from many organisations, including the Mental Health Alliance, that the level of Dols applications and authorisations were far too low, and that significant local variations in case numbers reflected a lack of knowledge of the safeguards in areas with low rates.
It heard evidence that applications were not made for individuals who were compliant with their care arrangements, with providers often only making applications if the person was objecting to their care.
Confusion over link to Mental Health Act
The Dols were introduced through the Mental Health Act 2007 as an amendment to the MCA, and the committee heard that its drafting was not grounded in the empowering principles of the Mental Capacity Act.
It was also told that the legislation governing Dols was too complex and bureaucratic and that there was confusion, particularly among mental health professionals, about the interface between the Dols and the Mental Health Act 1983. This led to people being wrongly sectioned in psychiatric hospitals when they should be receiving the protection of the Dols.
The failure of the Dols was also related to health and social care staff not properly applying the five principles of the Mental Capacity Act in supporting people, particularly the need to consider the least restrictive option for people’s care.
The committee also criticised the exclusion of users of supported living services from the protection of the Dols, which only apply to people in care homes and hospitals. Though housing providers should apply directly to the Court of Protection if they believe they are depriving someone of their liberty, the committee found that this was often not pursued, putting service users at risk of being unlawfully detained.
Gap in the law
It also identified a gap in the operation of the Dols because of the fact that it cannot apply to people being detained under the Mental Health Act. It cited a case of a man, Dr A, whom a court said should be force fed after he went on hunger strike and was deemed to lack capacity to decide whether to do so.
This would normally constitute a deprivation of liberty that should be authorised under the Dols, however they could not be applied to the man because he had been sectioned. Nor could the Mental Health Act be used to authorise the force feeding as this was a medical treatment separate from his mental disorder.
The committee said that its proposed replacement for the Dols should extend to supported living, close the gap with the Mental Health Act, be drafted in clear and simple terms and be grounded in the principles of the MCA.
It urged the government to conduct a comprehensive review of the Dols, involving widespread consultation, before introducing a replacement.
However, it rejected the introduction of a statutory definition of a deprivation of liberty, which some have called on to address the disparities in the way the Dols are interpreted across the country.
No need for statutory definition
The Dols were established to ensure England and Wales complied with the European Court of Human Rights’ judgement in the Bournewood case, which found that existing regulations were insufficient to uphold the right to liberty of people detained in care settings.
The committee accepted the view of the government and the Official Solicitor that the concept of deprivation of liberty had to be based on the European court’s interpretation of Article 5 of the European Convention on Human Rights, which provides for the right to liberty and security. As this would evolve through case law, the definition could not be frozen through a statutory definition.
The reliance on case law to define a deprivation of liberty has been criticised because of different interpretations used in successive judgements. The committee’s verdict comes with the Supreme Court set to hand down a judgement next Wednesday in two linked cases – Cheshire West & Chester Council v P & M and Surrey CC v P & Q – and will set out its view of what constitutes a deprivation of liberty.
Hargreaves raised concerns over this finding, adding: “I think we need to reserve judgement on that until we’ve seen the outcome of the Cheshire West appeal. If the definition continues to be complex, subjective, and open to a wide variety of interpretations, with some of the most vulnerable people left outside its scope, any scheme based on it is bound to be arbitrary and uneven in its application.”
The committee also called for tougher oversight of local authorities in their supervisory body role, which involves assessing Dols applications from providers and deciding whether to authorise them, as their evidence suggested councils were not performing their role well enough.
Tighter oversight of councils urged
As the CQC no longer inspects council adult social services routinely it cannot assess them on their performance of their supervisory role, other than by asking authorities to conduct voluntary self-assessments. Once the Care Bill comes into force the CQC will only be able to inspect councils’ adult social services arrangements with the consent of the DH and Department for Communities and Local Government.
However, were Dols to be replaced, this would require fresh legislation, which could involve introducing oversight of councils in their supervisory body role.
In response to the report, care minister Norman Lamb said: “I share the concern expressed in this report. It is completely unacceptable to unlawfully deprive vulnerable people of their rights.
“I am absolutely committed to making sure that the Mental Capacity Act is used properly to protect everyone receiving care and support. I have met with the Chief Inspector of Hospitals and Deputy Chief Inspector for Mental Health to discuss how the Care Quality Commission can strengthen their inspection regime so that we have a zero tolerance of unlawful deprivation of liberty.”