How care homes can improve on the Deprivation of Liberty Safeguards

The Care Quality Commission’s annual report on the Deprivation of Liberty Safeguards (Dols), published today, identifies a number of problems with the way they are being applied by care homes, but also advice on how providers can improve.

What is care homes’ role under Dols?

Care homes’ role under Dols is to identify residents who lack capacity to make decisions about their care who are likely to be kept in conditions that constitute a deprivation of their liberty. Where this appears to be the case, the home should apply to the local authority to adjudicate on whether the proposed or existing circumstances constitute a deprivation of liberty and, if so, whether this is in the person’s best interests, necessary to prevent harm to them and proportionate to the likelihood and seriousness of that harm.

Councils should provide support, training and advice for homes on implementing Dols; but the CQC report makes clear that there are things that care homes need to do themselves to put their own houses in order.

Improving training

The CQC found “highly variable” levels of training in the Dols and the Mental Capacity Act, the legislation that underpins it, among providers, leading to a lack of awareness and knowledge. Particular issues involved training only being provided to senior or specialist staff, such as registered managers or nurses, and knowledge gaps emerging when these staff leave. 

Good practice points:-

• Provide training in the Mental Capacity Act and Dols to all care staff;
• Have a lead staff member on the MCA or a specific MCA team to embed the principles of the legislation across the organisation.

Regular, in-depth and documented capacity assessments

The CQC found that in some homes, people’s capacity to take relevant decisions was assessed on admission to a home, but not after that in relation to day-to-day decisions that they may possess the capacity to take. In some cases, mental capacity had not been reviewed even where people’s circumstances had changed.

The regular also found instances of inadequate assessments of capacity or of assessments not being recorded, with a lack of evidence that staff had followed correct procedures in taking decisions on behalf of residents.

Good practice points:-

• Assess capacity periodically to ensure that residents are having their right to take day-to-day decisions protected;
• Record assessments in the individual’s care plan

Correct use of restraint

The Mental Capacity Act enables care homes to restrain people who lack the capacity to refuse if they believe it is in the person’s best interests, necessary to prevent harm to them and proportionate to the seriousness and likelihood of that harm.

However, the CQC found that instances of people being restrained without recorded consideration of their capacity to refuse, support to maximise their decision-making capacity before resort to restraint and a lack of effective decision-making over what is in the person’s best interests.

It also raised warnings about the use of blanket restrictions in care homes that had not been subject to assessments for every individual to whom they applied.

Good practice points:-

• Provide support to maximise residents’ decision-making capacity before resorting to restraint;
• Always assess capacity to consent or refuse before carrying out restraint;
• Use best interests meeting to decide on appropriateness and appropriate levels of restraint;
• Record instances of restraint and the decision making behind them;
• Avoid blanket restrictions that are not linked to individualised care planning.

Ensure all Dols cases are reported to the CQC

Care homes are required to notify the CQC of all applications to deprive people of their liberty and the outcomes of these, however this is not happening. While the CQC received 2,292 deprivation of liberty notifications from homes in England in 2011-12, local authorities recorded 6,355 applications from homes over the same period.

This suggests that homes notified the CQC of 36% of applications, which the regulator described as a “substantial amount of under reporting”. It issued this warning to care homes:

“Notifying outcomes of applications is a statutory requirement; failure to do so is an offence. CQC has taken steps to improve the awareness of its staff in relation to this requirement, and providers who fail to notify risk enforcement action.”

The CQC’s guidance on statutory notifications can be found here.

More advice for care homes on Dols and the Mental Capacity Act

Deprivation of Liberty Safeguards guide for care homes

Helping care home managers navigate the Dols

What the ‘least restrictive option’ means under the Mental Capacity Act

How Mental Capacity Act responsibilities go beyond ‘duty of care’

More on the CQC’s annual report on Dols

Support and scrutiny of best interests assessors highly variable, finds CQC

Are joint safeguarding and Dols teams a good idea?