Q. What is the current situation with Deprivation of Liberty Safeguards (DoLS) and is there any information available to help clarify the process?
A. Stuart Marchant, Partner at Bevan Brittan LLP
Two years on from the Cheshire West judgment by the Supreme Court on deprivation of liberty, are providers, regulators, local authorities and Government all clear and aligned on DoLS in the care sector?
The answer, unsurprisingly, is ‘no’. All parts of the sector are struggling to come to terms with the law, the plethora of guidance, stories of good and bad practice, and the huge pressure on resources being felt across the board. So, two years in (and a good deal more since the Safeguards were implemented generally), it’s a good time to take a step back and consider where things have got to.
Providers are at the sharp end – both of good practice and in the firing line for criticism – so that’s where the focus should be. But, as ever, there’s plenty going on around providers that can cause confusion and stand in the way of getting on with care delivery.
Back to basics – the law
On 19th March 2014, in the case of P v Cheshire West and Chester Council, the Supreme Court established an ‘acid test’ for what constitutes a deprivation of liberty. The acid test states that an individual is deprived of their liberty for the purposes of Article 5 of the European Convention on Human Rights if they:
- Lack the capacity to consent to their care/treatment arrangements.
- Are under continuous supervision and control.
- Are not free to leave.
Importantly, all three elements must be present for the acid test to be met. If the acid test is met, the deprivation of liberty must be properly authorised, otherwise it will be unlawful.
If a care home provider is depriving a person of their liberty, this must be authorised under the Mental Capacity Act (MCA) DoLS provisions through an ‘urgent authorisation’ or ‘standard authorisation’ by the Supervisory Body (usually the local authority). If a person is being deprived of their liberty in their own home, by virtue of a community care package, then the Court of Protection must authorise it.
In some complex cases, the Court of Protection may also be involved in care home authorisations.
The impact of Cheshire West
Figures submitted by local authorities show that applications for DoLS authorisations rose more than ten-fold in the year after a landmark Supreme Court ruling triggered a surge in referrals. 116 of 152 local authorities in England returned an audit showing that 113,300 DoLS applications were received in 2014-15, more than ten times the 10,900 cases the councils handled in 2013-14.
Of these, 36% of applications were granted and 10% rejected. And the rest? Due to backlogs in dealing with all of the cases, 54% of applications made in 2014-15 had not been signed off or had been withdrawn in the year. In the previous year, just 3% of cases had not been processed or were withdrawn.
Simply put, local authorities can’t cope. They are having to prioritise cases, usually based on risk and vulnerability of the person concerned. In reality, this means people who are receiving the care they need from a provider are likely to be lower down the order of priority and not have applications processed in time.
The following is an extract from Department of Health (DH) guidance issued in October 2015.
‘Health and care providers will understandably be concerned should applications made to local authorities not be assessed within statutory time-limits. Whilst this is not ideal, it is an inevitable consequence of the unexpected large increase in applications that local authorities are now charged with processing. Providers should not delay in sending DoLS applications to local authorities for individuals whose circumstances they believe may meet the Supreme Court’s acid test.
‘Fundamentally, it is the Department’s view that providers that can demonstrate that they are providing good quality care/treatment for individuals in a manner compliant with the principles of the MCA, and who are following DH and other national guidance, should not be harshly treated for technical DoLS breaches.
‘CQC will assess providers on a case by case basis where their DoLS applications have not been responded to within the statutory time-limits. CQC will expect to see that providers are submitting applications for any individuals being deprived of their liberty without delay, and that they are continuing to seek less restrictive options for those individuals’ care or treatment in the meantime. Services should be working with local authorities to ensure that appropriate prioritisation of individuals most likely to benefit from a DoLS assessment is taking place.’
Taking the DH guidance at face value, the message is that providers should focus on providing care that meets the needs of individuals, regardless of what is going on around them. In doing so, they still need to comply with the administrative requirements of applying for DoLS authorisations and submitting notifications to CQC. Importantly, providers should demonstrate what they are doing to have a structure in place for reviewing that the care is in the individual’s best interests and that less restrictive options are always considered.
In its report Monitoring the Deprivation of Liberty Safeguards 2014-2015, CQC commended one care home provider where the registered manager used a chart called the ‘Resident Deprivation of Liberty Safeguards Application Record’. The chart listed various information, including:
- People’s names.
- The date of the Deprivation of Liberty Safeguards application.
- If the application had been granted and, if so, the expiration date.
- If a notification had been submitted to CQC.
This is simple stuff, but demonstrates effective management and can be a good governance tool if such information relating to all residents is monitored as part of a regular review. I would add to this, dates when standard chasers are sent to the local authority about the application, plus regular reviews of the individual’s deprivation of liberty status recording:
- Date of last capacity assessment.
- Date of last best interests meeting on residence (with the meeting recorded fully in the person’s care record).
- Date of next review.
Identifying a DoL
The Court of Appeal has made it clear that everyone should apply the Cheshire West acid test. In doing so, I advise that the starting point for all providers should be the Law Society’s guidance Deprivation of liberty: a practical guide, issued in April 2015. This sets out factors that may suggest a deprivation of liberty in specific settings, including different types of residential care, supported living placements and domestic settings.
In an attempt to provide some clarification, the DH has also issued guidance to social workers seeking to establish that:
- Just because someone physically cannot leave does not mean that that they are unable to leave for the purposes of the test. They may, for example, be able to leave with family assistance.
- If an individual is in a private room and checked every few hours, they may not be under constant control and supervision.
- Where a person receiving palliative care has the capacity to consent to arrangements about their care and does consent, there is no deprivation of liberty.
- If a person consents to their care arrangements at the time of admission and/or at a time before losing capacity, unless the care package is changed significantly, this period covers the period up to, and including, death.
- Unconsciousness is not a mental disorder, therefore the criteria for a standard authorisation is not met if this is how a person is deemed unable to engage in their care decisions.
Some of these are grey areas and, if possible, providers should strike up a relationship with the DoLS team in the local authority and record conversations about any individual’s need (or not) to be subject to a DoLS application.
What makes a provider ‘Good at DoLS’?
CQC has identified in its Key Lines of Enquiry (KLOE) the characteristics of care, in relation to DoLS, that relates to its ratings system:
Staff understand and have a good working knowledge of DoLS and the key requirements of the MCA. They put these into practice effectively, and ensure that people’s human and legal rights are respected.
DoLS and the key requirements of the MCA may not be fully understood despite staff attending training.
Staff do not understand what they must do to comply with the MCA and DoLS. They sometimes do not act within the law.
Further guidance on how to be ‘Good’ is set out in CQC’s Monitoring report for 2014-2015. This identified that providers should:
- Take action to meet the requirements of the MCA, in line with the Codes of Practice for it and DoLS. This includes making sure that their staff understand the MCA including DoLS, have access to training, consistently undertake capacity assessments where it is appropriate for them to do so and apply best interests decision-making processes for people who do not have capacity.
- Make sure that they have in place clear policies and processes relating to DoLS.
- Continue to request authorisations when they think that people may need to be deprived of their liberty, while always seeking less restrictive options to meet individual needs.
- Make sure that they notify CQC about DoLS authorisation applications and their outcome (when the outcome is known), so that CQC can fulfil its monitoring role.
Regulatory hot issue
The MCA and DoLS are high on CQC’s regulatory agenda. Enforcement action has included six providers having locations removed from their registrations for, amongst other things, poor implementation of DoLS and the wider MCA. CQC has also issued dozens of warning notices relating to breaches of requirements regarding the MCA and DoLS.
Ironically, CQC has admitted that too few inspectors have completed their own training on the MCA, despite providers’ practice in this area being a key plank of the regulator’s inspection regime. CQC Chief Executive, David Behan, has labelled this as ‘disappointing’.
However, whilst it is always interesting to hold the mirror back up to the regulator, that is no excuse for not providing care as mandated. The challenge for all is to strive to make DoLS part of good, common sense, care.
Log in to read the reports and guidance mentioned in this article. Subscription required.