Max Duddles highlights the ongoing challenges surrounding Deprivation of Liberty Safeguards and argues that better training is of paramount importance to safeguard the vulnerable.
Introduction
On 25 October, the Care Quality Commission (CQC) published its 2023/2024 State of Care Report and, once again, Deprivation of Liberty Safeguards (DoLS) feature as an area of major concern.
This should not come as a surprise to anyone, and to many it may sound like a stuck record. When we are increasingly used to hearing that many public services are ‘broken’, is it any surprise that a system designed when we had a different understanding of the meaning of deprivation of liberty is?
In the report, the CQC notes that many local authorities have gone to considerable lengths to reduce the DoLS backlog. This year, those efforts have resulted in the backlog reducing by 2%, which is no small feat given that the number of DoLS applications rises at a rate of around 14% per year.
These efforts include an increased use of equivalent assessments, using technology to make the process faster, improving communication with managing authorities, and putting on workshops and training for hospital, nursing and care home staff.
Despite all of this, it remains the case that only 19% of all applications for a standard authorisation are determined within the statutory maximum of 21 days. The average time taken between an application being submitted and a determination being reached is 144 days.
Understanding of DoLS among staff
A decade after concerns were raised by the House of Lords Select Committee on the Mental Capacity Act (MCA) about the poor implementation and understanding of DoLS, these issues persist.
The CQC found that many staff members demonstrate awareness of the MCA’s principles but lack the confidence to apply them correctly. The report notes instances where DoLS applications:
- Were submitted without proper mental capacity assessments being conducted.
- Failed to specify what restrictions were needed and why.
- Failed to acknowledge the less obvious restrictions, such as sensor movement trackers or bed rails.
- Displayed a lack of person-centred planning, leading to blanket restrictions for all residents.
- Did not consistently show that the least restrictive option had been considered.
- Were submitted without families and carers being notified, leading to confusion and upset when they were contacted by the assessors.
- Moreover, there were misconceptions that merely submitting a DoLS application equated to having an authorisation in place.
Training and knowledge gaps
The report found that limited training on DoLS further compounds the issues. Most providers had anticipated the introduction of Liberty Protection Safeguards (LPS) so were reluctant to invest in DoLS training due to uncertainty around LPS implementation. Given the traditionally high turnover in care home workforces, this has now resulted in many nursing and care home staff being inadequately prepared to uphold their residents’ rights and apply DoLS appropriately.
Impact on local authorities
The knowledge gap among care home staff has had a knock-on effect on local authorities, with DoLS applications reaching unprecedented volumes partly because nursing and care homes submit suboptimal applications. This has contributed to the strain on budgets and resources. There is variety in how local authorities manage applications which means that members of the public receive different experiences of the DoLS system based on their geographic location.
The effect on families
As mentioned, communication issues are widespread. Family members often remain uninformed about DoLS applications until late in the process, which causes confusion and distress. Additionally, language barriers and a lack of adequate interpretation services further challenge effective communication for those who do not use English as their first language.
How can care homes and hospitals improve?
Despite reforms and improvements attempted by local authorities to streamline processes and manage backlogs, understanding and applying the DoLS process remains a critical issue. The lack of proper training, variable knowledge, and communication gaps around DoLS not only delay authorisations but also place many vulnerable individuals at risk of receiving overly restrictive care without necessary legal safeguards.
Urgent action and substantial investments in training, resources, and a renewed focus on the principles of the MCA are essential to ensure that the system works to protect the rights and wellbeing of those it is designed to safeguard.
Max Duddles is a solicitor and Bond Solon trainer.