Care homes ‘lack confidence’ in applying Mental Capacity Act, finds review

A lack of confidence in using the Mental Capacity Act and Deprivation of Liberty Safeguards (Dols) among care homes in Wales means too many are reliant on local authorities to identify and manage potential deprivations of liberty in care, a review has found.

The review of the Dols by the Welsh inspectorates for health and social care also found that some local authority adult social care teams had ‘very limited’ knowledge of Dols and failed to recognise their responsibilities under the legislation.

The review, which took place in April and May of this year, involved a survey of all local authorities and NHS boards in Wales and a review of 84 Dols applications. It also incorporated feedback from service users and carers.

Under the Dols arrangements in Wales, local authorities or health boards must assess whether people who lack capacity to consent to their care arrangements are being deprived of their liberty in care homes or hospitals and, if so, whether this is in their best interests and necessary to protect them from harm.

The Welsh review praised the work of Dols coordinators in local authorities and health boards and found their “personal commitment” had often been the decisive factor in driving up the quality and quantity of Dols applications. It also found that carers’ experiences of best interests assessors (BIAs), the group of mostly social workers that manage Dols assessments, had been “very positive”.

While the review found that outcomes for patients who had been subject to the Dols had generally been positive, with a number supported to return home, it highlighted a number of shortfalls in the way the safeguards had been applied. Concerns included:

• Limited confidence and knowledge on MCA and Dols In the majority of care homes visited by inspectors, knowledge of the legislation was ‘limited’. The report found that managers and staff “were heavily reliant” on local authorities to identify restrictions and potential deprivations of liberty. Knowledge of the legislation among health staff was also limited but this was improving, the review found.
• Fragmented training The training and skills development for staff involved in delivering the MCA and Dols was “very fragmented”. Training was not always mandatory and was sometimes combined with training on safeguarding in a single half day or day session.
• BIA shortages Not all local authorities and health boards had access to sufficient numbers of BIAs. The BIA role was often perceived as an ‘add on’ and BIAs often had to negotiate with their manger to be released from casework to undertake the assessments.
• Problems applying ‘least restrictive’ care Where BIAs had recommended conditions on the person’s care to protect an individual’s human rights, these conditions were not extensively used in the cases reviewed. Where they were applied they had not always been understood by the care home or hospital.
• Inconsistency in the Dols process across Wales In areas where high numbers of applications were made, the processes tended to be clearer and some areas had a quality assurance process in place. But inspectors saw a number of errors in documentation, which could render local authorities or health boards subject to legal challenge.
• Low numbers of advocacy referrals The review found that the number of referrals to independent mental capacity advocates (IMCAs) was very low overall across Wales. Advocacy providers in some areas felt that their role had not been appropriately promoted or understood by authorities. 

Imelda Richardson, chief inspector of care and social services inspectorate Wales, said the Dols should not be seen as an ‘add-on’.

“Making sure that people who lack capacity are helped to make their own decisions and  are kept safe is essential, but they should not be subject to overly restrictive care arrangements that affects the quality of their life,” she said.

The Welsh review took place over the two months following a Supreme Court ruling in March that effectively lowered the threshold for cases requiring assessment under the Dols. A Community Care investigation found that in the six months since the ruling, referrals increased nine-fold and half of all cases had breached statutory timescales. Read our special report here.