Many deprived of liberty without safeguards, warn experts

Many vulnerable service users are being deprived of their liberty without safeguards because of the narrow scope of the law, experts have warned.

Learning disabled people in supported living and many care home residents lack the protections of the deprivation of liberty safeguards despite living very restricted and controlled lives, the first national Mental Capacity Act/Dols conference heard.

Under the Dols, councils and primary care trusts must ensure people who lack capacity to decide on their care and treatment are only detained in care homes and hospitals if this is in their best interests, necessary to prevent harm to them and a proportionate response to the risk of harm.

However, they do not apply to supported living settings, creating a gap in protection for people with learning disabilities, warned Simon Spoerer, who is responsible for the Care Quality Commission’s monitoring of the Dols in England.

“There are currently very few care homes for people with learning disabilities,” Spoerer told the conference. “There are people living very directed lives in supported living and some of them are being deprived of their liberty.”

Supported living providers must apply to the Court of Protection if they want to deprive someone of their liberty, but Spoerer said this was expensive. He said the CQC’s forthcoming annual report on Dols in England would raise this issue, with a view to promoting discussion of how it could be tackled.

The conference also heard warnings from Official Solicitor to the senior courts Alastair Pitblado that many fewer care home residents would have access to the safeguards because of the Court of Appeal’s rulings last year in Cheshire West and Chester Council v P and P and Q v Surrey Council.

In the Cheshire case, the court ruled that a severely disabled man, P, was not deprived of his liberty in part because his life was as normal as it could be for someone with his level of impairment. This was despite him facing significant restrictions including being restrained by staff to deal with instances where he pulled apart his continence pads and put faeces in his mouth.

In the Surrey case two learning disabled sisters were found not to be deprived of their liberty in part because they were not objecting to their confinement and because their living arrangements were “relatively normal”, in so far as they more closely resembled family life than institutional care.

The judgements were a “sea change” in understanding of the Dols and meant protections for people “had gone backwards”, said Pitblado, who represented the service users in both cases as part of his statutory role.

“This means that people in care homes, if they are nice care homes and there are red roses around the front door and not many residents or rooms, are not being deprived of their liberty,” he said. “I do see a lot of people having no protection apart from that given by the CQC or the good offices of the care home.”

He said he was intending to appeal the Court of Appeal’s decision in the Cheshire case at the Supreme Court.

The conference was organised by South Essex Partnership University NHS Foundation Trust and attended by over 100 health and social care professionals in social work, best interests assessor or other Mental Capacity Act or Dols roles.

• Contact Denise Whickman at the trust if you would like to get involved in networking with other MCA/Dols practitioners and helping shape national policies.

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