CQC warns of risk of unauthorised deprivation of liberty as DoLS reports drop on back of Covid

There may be increasing risks of people being deprived of their liberty in care settings without due authorisation, the Care Quality Commission has warned, after notifications from providers about cases dropped sharply in the first weeks of the pandemic.

The number of notifications made by providers to the regulator about Deprivation of Liberty Safeguards (DoLS) applications fell by 65% for hospitals and 31% for care homes in March to May 2020, compared with the same period in 2019, the regulator said in its latest insight report on Covid-19.

Providers are under a regulatory duty to inform the CQC when they make a DoLS application, once the outcome is known.

Positively, the CQC said that, while the pandemic had required providers to increase restrictions on people, for example, to enable isolation of those with confirmed or suspected Covid, some had mitigated the impact by enabling those isolated to access communal areas or contact loved-ones through virtual technology.

It also said that Department of Health and Social Care guidance – issued in April – had made clear that most of the changes made to care and treatment during the pandemic would not require a fresh DoLS application because existing authorisations could be relied on, or because, in the case of life-saving treatment in hospital, case law had made clear that a person should not be considered deprived of their liberty.

Risk of unauthorised deprivations

However, despite these factors, the CQC concluded that there may be an increased risk of people being deprived of their liberty without authorisation because of ongoing lack of understanding of DoLS among providers, and the fact that their focus on the system had waned because of the planned introduction of the Liberty Protection Safeguards (LPS).

The LPS will replace the DoLS as the system for authorising the deprivation of liberty of people for the purposes of receiving care or treatment where they lack the capacity to consent. The LPS were originally due to come into force this October, but the government announced last week their full implementation would be delayed until April 2022 because of the pandemic.

While this delay was widely anticipated, the CQC said: “[With] providers increasingly looking towards the introduction of the Liberty Protection Safeguards (LPS), providers’ focus on DoLS has waned and training in some areas has stagnated. Poor understanding of DoLS has remained a fundamental issue. This together with the delays and uncertainty over the progress of LPS may mean there is an increasing risk of people being deprived of their liberty without the proper authorisation.”

Reduced occupancy impact

Responding to the CQC’s report, Care England, which represents many independent care home providers, said that the drop in notifications was in line with the government’s guidance and also reflected the fall in occupancy in, and admissions to, care homes, because of the impact of Covid-19 on homes.

Separately, in the same report, the CQC reported that admissions to care homes among self-funders were running at 35% of 2019 levels, while among local authority-funded residents the rate was 72% of the previous year’s, having recovered from an even lower level in the early weeks of the pandemic.

However, Care England’s chief executive, Martin Green, also said that care providers’ focus on finding less restrictive ways of managing people’s care – as highlighted by the CQC – was possibly a reaction to their poor experience of the DoLS system and the confusion over when the LPS would come into force.

“We know that DoLS are complex and have been hard for health and care professionals to understand,” he said. “In recent years, providers have learned to expect lengthy waits for DoLS requests to be assessed, and requests for authorisation are often effectively shelved by local authorities.

“Confusion caused by the continuing lack of information from government about when, and how, LPS will replace DoLS, and the cancellation of face to face learning events, have perhaps combined to encourage providers to focus on finding creative, person-centred ways to mitigate the impact of Covid-19. By doing this, as CQC highlights approvingly in the insight report, care staff are immediately enhancing the wellbeing and human rights of residents.”

DoLS case numbers recovering

Lorraine Currie, chair of the national DoLS leads group, said that, having decreased in March and April, DoLS applications received by councils from care homes and hospitals were returning to normal levels across the country, on average.

In relation to the CQC figures, she said the fall in hospital cases was “due in part if not wholly to” the the DHSC guidance, while care homes, it reflected the impact of the pandemic.

On the regulator’s assertion around DoLS training being deprioritised, she said: “Training is a difficult issue, the delay in announcing LPS implementation has meant everything was on hold. All the multi agency planning we might be doing in the regions largely stopped. It has meant we were neither one thing nor the other. We were keen to start awareness raising on LPS but unable to. Certainty around delay will at least enable us to focus on the principles again to support care homes.

She added: “Many DoLS teams, best interests assessors [the professionals who co-ordinate DoLS cases for local authorities] and our social work colleagues have provided invaluable advice and information to help care homes navigate the vast amount of guidance issued by DHSC.”

This includes the challenge of identifying when the DoLS or powers provided under the Coronavirus Act 2020 to restrict people’s behaviour in order to control the virus, should be used to deprive a person of liberty.

“In DoLS we’ve seen the human face of deprivation; husbands who wonder if their wives will ever remember them again, families who can’t say goodbye, young people traumatised by PPE but we’ve also seen the dedication, heroism and compassionate care of care hone staff in the face of unprecedented circumstances,” Currie said.