Safeguards to prevent wrongful detentions in care ‘need review’

A Mental Health Alliance report has called for an urgent review of the deprivation of liberty safeguards (DoLS) after finding that health and social care professionals lacked the understanding to properly implement them.

DoLS were introduced in April 2009, under the Mental Capacity Act 2005, to protect the interests of people detained in care for their own protection. Care homes and hospitals must apply to councils and primary care trusts respectively for authorisation. Councils and PCTs must then carry out a series of assessments to determine whether a deprivation is legal, including a test of whether it is in the person’s best interests.

The report cited official figures showing applications were running at only a third of the government’s predicted rate and varied widely between areas as a matter of concern though said opinions differed over whether people were being deprived of their liberty without just cause.

It drew on evidence from alliance members, who included professional and provider bodies, which indicated that professionals carrying out best-interests assessments often lacked specialist knowledge of the person’s medical condition, such as dementia.

The report concluded these problems arose from the complexity of the law and a lack of training, saying many best-interests assessors and their managers would only have had one day’s training in the detail of the law.

Author Roger Hargreaves, formerly the British Association of Social Workers’ mental health lead, said there was no “proper legal definition” or clear guidance about what constituted a deprivation of liberty, which meant care providers often did not recognise that this was happening.

Those subject to DoLS are also appointed a representative to act on their behalf, usually a family member. But the report found that councils and PCTs used their powers to appoint representatives to select people who agreed with their decisions, insulating them from criticism.

Although service users represented by a family member have a right to an independent mental capacity advocate (IMCA), feedback for the report suggested this was happening in less than 5% of cases. This was despite Mental Health Alliance members saying IMCAs were more likely than family members to identify breaches in the law because of their specialist knowledge.

Alongside a full review of DoLS the report recommended that the government clarify the meaning of deprivation of liberty and offer refresher training to staff.

The report follows findings last month showing professionals were failing to conduct capacity assessments under the Mental Capacity Act properly.

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