The annual report – Mental Capacity Act (2005) Deprivation of Liberty Safeguards Assessments (England) Annual Report 2012/13 was published earlier this week and I couldn’t let it pass without comment. Community Care have written a good summary here which highlight some of the headline figures.
My own interest is slightly different in that I was a Best Interests Assessor up until last November and still have a very active interest in the implementation of the Mental Capacity Act in detail and the Deprivation of Liberty Safeguards in particular.
There are a few things before I look at some of the figures, which I want to comment on. I’ve seen very poor understanding of the Deprivation of Liberty Safeguards reported. There are a few things it’s important to remember for anyone looking into them and researching these figures.
Deprivation of Liberty Safeguards applications and orders do not ‘mean’ that people are being tied up more or subject to worse restrictions than they were last year – despite the increase in applications and orders made. What is means, in my opinion, is that the care is the same (as restrictive as ever) as it was before but the SAFEGUARDS have actually been triggered. While there is a lot of criticism (often quite rightly) around the process of the Deprivation of Liberty Safeguards – it’s important to remember that they are the SAFEGUARDS. In themselves, they are not ‘bad’. They are actually beneficial when used properly as they ensure there is a process to involve family and advocates and multi-disciplinary teams to make decisions in the best interests of people who lack capacity to make decisions about care for themselves.
Secondly, I wish that care providers, local authorities, social workers, doctors, everyone really would stop rolling their eyes and saying they are ‘too complicated’ to understand. Just stop it. They aren’t. Just because there isn’t a list of things that count as a ‘deprivation of liberty’ in the DoLS Code of Practice doesn’t mean it’s ‘complicated’. The ONLY person in the process who has to make a decision about whether there is a deprivation or not is the Best Interests Assessor – the care home owner/hospital etc only need to decide if an assessment is necessary and I’d favour a low bar on that – so I’d expect a lot more applications but we’ll get on to that when we look at the figures. The important thing, in my view, in the Code of Practice is that a deprivation is ‘complete and effective control’ over someone’s life. Is that happening? Or might it be? Refer it for an assessment and let the BIA made the judgement. As a former BIA, the case law about the definitions of ‘deprivation v restriction’ was fluid but it was my job to keep up to date with that and understand it. I’d rather have more referrals and refusals than applications not made when they should have been.
So back to the report. The real surprise is in the massive variation in requests for assessments and applications made through different local authorities through the country. Regarding the language I’ll use in the following post, two things to point out.
Managing authority = care home or hospital that is potentially ‘depriving’ someone of their liberty who make the application to the LA. Important to note that the initial request to assess and make an application comes from them.
Supervisory body = Now the local authority (previously – well, up until April PCT or LA) who receives the application and arranges the assessments and makes a decision to authorise or not the deprivation of liberty. It is the LA where the person is funded/is ordinarily resident that authorised (or not) the deprivation of liberty – not the place the care is being carried out so that may affect the figures.
The most shocking data for me was the massive discrepancies between the figures across England. Why would Kingston Upon Hull – a city of more than 1/2 million people, only have three applications made in a year – none of which were authorised while Sheffield, which has a very similar population had 108 applications made in the same period with 64 granted. Hertfordshire made 78 applications with 36 granted while Buckinghamshire made 365 applications with 102 granted. There are lots of examples of massive unexplained discrepancies and I haven’t got the space (or energy) to go through them all but it gives a picture of very erratic use of Deprivation of Liberty safeguards throughout England.
I’d much rather see a high application rate, even if they don’t transfer into authorisations granted than very low application rate, by the way. Sometimes situations change between the application and assessment – sometimes the application isn’t appropriate, sometimes changes in care can take place which mean the person involved is no longer being deprived of their liberty but at least it means someone is looking at the situation of that individual person and making a decision about what is best for them. My worry is that where the rates are particularly low, there are people who are being detained without authorisation. I’ve got no evidence for this except gut instinct and having been to a lot of care homes who wouldn’t know what making a request for an deprivation of liberty authorisation was if it came and hit them over the head.
I’d always feel far more secure and comfortable with a care home that knew and understood when they needed to make an application than one who said (yes, I’ve heard this) we don’t do that (deprivation) here. Hmm. Maybe, just maybe you do and you don’t recognise it.
I also worry about how these systems are operated between local authorities. Do some DoLs leads ‘discourage’ or ‘pre-vet’ applications for authorisations – because they really aren’t supposed to.. at least let people have assessments.
I’m veering away from the document and data and making my own conclusions here so apologies in advance but if anyone has any other ideas, please do leave comments below.
1) People (managing authorities and supervisory bodies alike) REALLY don’t understand DoLs and think they are somehow ‘bad’ so they want to avoid making applications so they don’t look bad – failing to get the fact that depriving someone of their liberty without authorisation is much much worse (unlawful).
2) Everyone who goes into a residential care home and a hospital (social workers attending reviews, community nurses, GPs, CQC/Mental Health Act Commissioners) needs to understand DoLs. Not ‘recognise in great detail if someone is being deprived of their liberty’ but aware enough to alert the management if an application should be made as unfortunately, the management can’t be relied on to make the applications themselves.
3) Some local authorities really need to get their thumbs out on this. They need to provide support and training to all managing authorities and check up on them.
If I could make one change to the law, incidently, I’d remove the need for the managing authority to make the application as they are clearly (at least in some areas) proving completely incapable of doing so.
So a slightly different post but I hope you’ll forgive me as it’s a topic close to my heart.