The Care Quality Commission (CQC) has published its fifth annual monitoring report on the implementation of the deprivation of liberty safeguards (DoLS) .
The report is split into three parts: the recurring themes, recent developments and monitoring the use of DoLS in care homes and hospitals. The report uses case studies effectively throughout and has some useful appendices including ‘Recent developments in case law’
The report examines the first five years since the implementation of DoLS. Over this period the numbers of applications to use DoLS rose from 7,200 a year in the first year to 13,000 in the year ending in March 2014.
The report also shows that there are still regional variations in application rates and wide variations in practice and training at health and social care organisations.
Worryingly, there has been a persistently low number of providers notifying CQC of applications to use DoLS and the outcomes, even though this has been a requirement since 2011.
As discussed in previous posts, in March 2014, the Supreme Court clarified that a person lacking mental capacity to consent to the suggested arrangements is deprived of their liberty if they are both:
- not free to leave; and
- subject to continuous supervision and control.
As a result, the numbers of applications for use of the DoLS has soared, from around 13,000 a year to around 55,000 in the first two quarters of 2014/15.
The CQC report rightly points out that the rise in applications is not a negative thing, as it shows willingness among providers to protect the rights of individuals and encourage external scrutiny of their care.
This rise effectively means that a higher number of P’s across the country are now protected. The DoLS are there to enhance P’s human rights and this should be encouraged across the country. It is hoped that such a rise will mean that all members of our society, including family members, organisations and those in government are better educated as to the rights of P.
The CQC report shows how many people could be affected and may not realise it. There are currently two million people in England and Wales who may lack the capacity to make certain decisions for themselves and another six million people involved in their care and support, including family, friends and staff working in health and social care.
The recommendations made in the report are as follows:
- Local authorities must continue to consider the use of advocacy for all those subject to DoLs.
- Local authority leads for the MCA and DoLS should create good working relationships with their local coroners. This is likely to be of great benefit to ensure that a consistent message is given to providers so that they can work together in dealing with the considerable extra activity as a result of the Supreme Court judgment (Cheshire West)
- Local authorities and Independent Mental Capacity Advocacy (IMCA) providers should be working together to enable IMCAs to carry out their role to support P or their Relevant Person’s Representative (RPR) to bring a challenge to an authorisation to the Court of Protection when it is the person’s wish.
The report reminds us of the point of all of this – giving those who may lack capacity to make particular decisions the same access to human rights as those with that capacity.
The recommendations appear to address matters that ought to be carried out already, but perhaps those Authorities who are not quite there yet will see the report and up their game.
For further information please contact Jess Flanagan.