Depriving care home residents of their liberty is fraught with problems for managers as legal guidance is vague on when it is appropriate. Mithran Samuel reports
Care homes have a key role to play in making the deprivation of liberty safeguards work.
They must identify who among their residents lacks capacity to consent to their care and may also be kept in a situation which constitutes a deprivation of their liberty, thus necessitating an application to the relevant local authority.
And where councils authorise a deprivation of liberty, on the grounds that is in the person's best interests, homes must monitor the situation to ensure that a deprivation remains necessary.
The facts suggest that homes in England are becoming better at applying the Dols, which were introduced in April 2009 under the Mental Capacity Act 2005 (MCA).
Fifty-seven per cent of applications were granted by councils in 2010-11, up from 45 % in 2009-10, and of those rejected, the vast majority were on the grounds that the person was not in fact having their liberty deprived, not because they were wrongly being detained.
Deprived of liberty without safeguards
However, the number of applications from homes last year - 6,708 - was less than half the government's estimate of almost 15,000, implying many people are being deprived of their liberty without safeguards. Also, local variations in application numbers are significant.
A key issue facing homes is that there is no hard and fast definition of a deprivation of liberty in the MCA or the 125-page code of practice designed to help practitioners implement it.
Though homes rely on the code, it is "extremely sketchy and now hopelessly out of date" because of case law, says Mental Health Alliance Dols lead Roger Hargreaves.
"It currently doesn't provide any strict objective test and you can't expect care homes to operate without one," he adds.
Others are less pessimistic, however.
John Leighton, who has been appointed by the Social Care Institute for Excellence to help providers implement the MCA and Dols, says "overarching themes" have emerged from Court of Protection judgements, which can be used in training with care homes (see box right).
However, Leighton, whose role is based at the National Care Association, points out that there are still tricky issues of judgement when deciding whether to make an application. For instance, a deprivation of liberty is commonly distinguished from a lesser "restriction of liberty", but the line between the two is hard to draw and is often based on an accumulation of incidents, rather than a single threshold, says Leighton.
A key barrier to understanding the Dols is the stigma surrounding the term "deprivation of liberty", says Rachel Griffiths, who carries out a similar role to Leighton's for Scie in partnership with the English Community Care Association.
"I've had care home managers say to me 'I'm not in the business of depriving people of their liberty'," says Griffiths, formerly MCA and Dols lead at Oxfordshire Council. "If they had called them 'human rights safeguards', people would have been a lot happier to take them up."
Leighton says home managers often focus too much on the physical environment, particularly if they are locking an individual's door, in identifying whether a deprivation has taken place.
"It's the care plan that deprives people of their liberty not the lock on the door and we are still trying to get that message through to care homes," he adds.
Understanding of Capacity Act
Understanding the Dols also requires a grounding in the Mental Capacity Act more generally. However, this is often lacking, says Elmari Bishop, a lecturer and social worker who is MCA and Dols spokesperson for the College of Social Work. The MCA sets out how providers should work with people who lack the capacity to consent to care or treatment, including that interventions should be in the person's best interests and be the least restrictive option. It is only when the level of restriction reaches beyond a certain point that the Dols come into play.
Bishop believes that care homes can get to grips with the Dols successfully with the right training from councils, whom she says should be systematically working with all homes in their area, auditing cases to identify deprivations that have not been picked up. "It's quite labour intensive but it's essential. We need to remember that a lot of care home staff are unqualified." However, she fears that such training is not widely available, with some homes receiving e-learning training instead, "which doesn't work".
Griffiths stresses that home managers do not need to be experts; it is for local authority best interests assessors to decide whether someone is being deprived of their liberty and whether such a detention is in their best interests.
"[Care home managers] just need to know enough to get a feeling in their water that they may be frustrating this person's wishes," she says. "If your staff are constantly saying 'no' to somebody and that person is getting frustrated about it, that may be the point when you make the application."
Case study: Kathryn McGuirk: 'We are trying to give her the sense of choice '
Cambridgeshire care home manager Kathryn McGuirk has dealt with one Dols case. The Dols authorisation for the woman, who has dementia, has been renewed several times by the local authority and the case has been heard by the Court of Protection, which upheld the authorisation.
What makes it a deprivation of liberty is the woman's objections to being in the home. Through the Dols process, the care home has worked on helping her get out of the home on walks and trips to fulfil her need for freedom.
However, the nature of the resident's condition means that she often forgets this. "She will say: 'I feel like I'm in prison, I want to go out'. But she just can't remember that she goes out."
The approach from the local authority in assessing the case has changed over time. Previously, assessors were looking at how the care home was seeking to fulfil the woman's literal wants. But now McGuirk and the current best interests assessor from the council are looking at how they can provide the resident with the feeling of freedom. This can involve her sitting in the care home's reception area, reading the paper. "We are trying to think about how we can give her the sense of choice," she says.
A Dols authorisation involves service users undergoing six different assessments and McGuirk says the resident has found it "intrusive".
"She doesn't know why people are asking her the questions. In some ways it's quite a heavy-handed process because of the number of people who come to speak to her."
The fact that she remains at the care home reflects the conclusion that there are no available alternatives.
"She couldn't go home. There was nobody she could live with. It was decided that it was in her best interests to stay."
Box: Guide to implementing Dols for care home managers
● There is no clear line that determines a deprivation of liberty and each case has to be judged on its own facts.
● The Dols code of practice suggests thinking about a scale that moves from "restraint" through "restriction" to "deprivation of liberty".
● Look beyond the fact that a person is sometimes locked in their room or a single restraint: it might be a "piece in the jigsaw" but is unlikely to deprive a person of her liberty in itself.
● Think about whether or not the person is free to leave to live where and with whom she chooses.
●Have you put in place arrangements intended to deny or restrict the individual's contact with her family or carers?
● Are you keeping the person under complete and effective control to the extent that she is under continuous supervision and control and not free to leave?
Source: John Leighton, provider development manager, Mental Capacity Act/Dols, Social Care Institute for Excellence
For a more detailed guide, go to www.communitycare.co.uk/dolsguide
(picture of Kathryn McGuirk by Tom Parkes)
What do you think? Join the debate on CareSpace
Keep up to date with the latest developments in social care Sign up to our daily and weekly emails
Expert guide to the deprivation of liberty safeguards