A hidden crisis
Our new report, A hidden crisis: Older people and deprivation of liberty in care homes, highlights the failure of the Deprivation of Liberty Safeguards (DoLS) to protect the rights of some of the most vulnerable people in our country. The DoLS exist to safeguard the fundamental right to liberty, for those who lack mental capacity to consent to care or treatment. Under the DoLS, local authorities in England are responsible for authorising deprivations of liberty that occur in care homes and hospitals.
We show how years of underfunding at the national level has undermined the administration of the DoLS at the local level and the impact this has had on older people, and others who may be subject to a DoLS authorisation. We also show how the effect of long-term underfunding and investment in social care, as well as a workforce crisis, is impacting on those who provide and receive care throughout the system.
We believe that when the DoLS work well, they are a crucial safeguard for older people and others who lack or are perceived to lack mental capacity. It means that this group of people, who by definition often find it difficult or impossible to advocate for themselves, cannot simply have their right to liberty removed without any checks to ensure that this is the best option for them, in their specific case – a humane and civilised response to a difficult set of circumstances.
But the DoLS are not working well in practice. There is an ever-growing backlog of DoLS cases that is so vast it can now probably never be eradicated. Since 2015/16 the estimated number of uncompleted DoLS applications has remained at over 100,000, and in 2022/23 126,000 applications went uncompleted by local authorities.
Where applications were completed, it took an average of 156 days to do so for a standard authorisation – much longer than the statutory timeframe of 21 days. This means that many older people will have been unlawfully deprived of their liberty before a DoLS assessment was carried out and a DoLS authorisation issued by their local authority. While in many cases a deprivation of liberty may have been the right decision for the older person, others will have had their right to liberty inappropriately denied. Shockingly, in 2022/23, 49,325 people died while waiting for their DoLS authorisation to be completed.
How DoLS delays impact care home providers
The current problems with the DoLS and the wider lack of investment in social care also have an impact on the staff who provide care for those who may need to be deprived of their liberty. There are many excellent and hardworking care staff who work diligently to provide good care in often difficult situations, with limited resources. But long delays for DoLS authorisations mean that in practice care providers are often put in a difficult position.
Care home staff often have to wait weeks or months before a decision about a DoLS application is made by the local authority. One care home representative told us that in some cases they had been waiting over a year for authorisation to be given by their local authority. Another said that the wait for authorisation can be ‘four to six weeks, or four to six months’. While care homes can often cover the initial deprivation of liberty under an urgent authorisation for a period of up to seven days, which can then be renewed by the local authority for a further seven, any deprivation of liberty following this is unlawful.
Where there is a long wait for a standard authorisation, care home staff are then faced with difficult choices. If they place restrictions on somebody who may need them, but who does not have a DoLS authorisation in place, they may be at risk of acting unlawfully. However, if they follow the law and do not deprive someone of their liberty until the authorisation is given, they then face the challenge of keeping someone safe who may be at high risk of harm. This also means that in some cases care providers essentially have to make decisions about a deprivation of liberty without anyone external to the care setting checking whether this is the right thing for the person concerned.
The following case study of Helen’s grandad, Peter, illustrates the difficult choices care providers face, as well as the impact DoLS delays can have on the person lacking mental capacity and their family.
Case study: Helen’s grandad
‘I was saying “Let’s do it [the DoLS application] today.” But, it took ages. It took six weeks, and he was running around all over the place. They said there was backlog and there were more urgent ones they had to deal with. I was pleading with staff… saying “stop him”, they were saying, “Helen, we can’t – we’re not allowed to.” It was frustrating.’
Helen’s grandad, Peter, has had Alzheimer’s for a long time and has been living in care for two years. He was regularly leaving the care home and being found roaming the streets as he thought he was going to work. As the care home was close to a dual carriageway, Helen and her family felt a constant sense of dread that something serious would happen. Each time he left the care home, Helen had to come into the care home to speak to the staff.
As her grandad’s Power of Attorney, Helen was approached by the care home about implementing a DoLS. It was framed as a way which would enable staff to prevent him from leaving the home, and she was relieved that there might be a solution. They contacted the local authority, and a Best Interest Assessor (BIA) was assigned who organised a multi-agency meeting with the care home, Peter’s GP, the family and the local authority. This was followed by a BIA assessment.
Following these assessments and meetings, Helen and her family heard almost nothing from the local authority about the application for over six weeks. They were informed there was a backlog, but in this time – as there was no emergency DoLS in place – Peter was regularly leaving the home on his own and the care home staff could do nothing to force him to remain. Helen describes feeling totally helpless during this period and frustrated because she couldn’t understand what was taking so long. When Peter’s DoLS eventually came through it was a relief.
DoLS and the social care workforce crisis
Providers responsible for the care of people who may need to be deprived of their liberty are also impacted by the wider social care workforce crisis. Skills for Care figures show that in 2022/23, there were more than 152,000 vacant posts across the care sector. Staff turnover is also high at 30% in the same period. Care providers need sufficient resources to ensure that any deprivation of liberty is the minimum possible and that older people are not subject to any overly restrictive practice.
But this is difficult in the context of staff shortages, where providers are often caring for high numbers of residents with complex needs. Staff told us that they didn’t always have enough time with each resident to deliver proper care, and that ‘there was too much to do in a shift’. This is both challenging for staff who may end up providing more restrictive care then they would wish because of a lack of resources, and for residents, who may be subject to overly restrictive practices, such as being put to bed early, or being unable to leave their room regularly.
The workforce crisis and high levels of staff turnover also mean that knowledge and experience of DoLS is not always sufficient to provide people with appropriate care. The CQC has noted, for example, that care home staff do not always implement the conditions attached to DoLS orders such as supporting access to places of worship or visits to a relative’s home, due to a limited understanding of the DoLS framework among care providers.
The way forward
The problems with the DoLS affect those who lack mental capacity and their families, those who provide social care and local authorities who must manage large numbers of DoLS cases with inadequate funding from central Government. We want the Government to reform and effectively finance the DoLS so that the system works better for older people and everyone involved in the system.
But this alone cannot solve all of the issues. Social care more widely must be properly funded, and effective solutions found to the workforce crisis, to ensure providers have sufficient resource to provide the best possible care which supports the freedoms of those lacking mental capacity as much as possible.
What is your experience of obtaining a DoLS authorisation? Leave a comment on this article or join the conversation to share your thoughts.
Natalie Cresswell is the Policy Manager – Equality and Humans Rights at Age UK and David Broome is a Technical Advice Support Officer – Social Care at Age UK.
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