Mental Health - April 2010
Home, sweet home?
The DoLS are unpopular and under-used, but their
complexity may be only part of the problem.
For over a year, many hospitals and care homes
have had the power to deprive people of their liberty. That
is the result of the DoLS – the Deprivation of Liberty
Safeguards.
The government prefers to see the DoLS as
protection: a way of preventing the arbitrary detention of the old
and the incapable. It is certainly true that the DoLS were
introduced to fill a gap in the law; a gap rather embarrassingly
revealed by the European Court of Human Rights (ECtHR) in the 2004
case of Bournewood v United Kingdom. Presumably,
therefore, it would be a cause for concern if the new safeguards
were not being used.
The government had forecast that by now,
around 21,000 people would have had their cases assessed under the
DoLS and a quarter of them would have been brought formally within
the safeguards. But that hasn’t happened.
- The number of people brought within the
safeguards is only around a third of the predicted
number.
- Of the more-than-300 local authorities and
PCTs charged with implementing the safeguards, a large number claim
to have had very few DoLS cases.
So, what is going wrong?
The powers given by the DoLS are not
unfettered: they can only be used with prior permission from a PCT
or a local authority. That in itself is controversial, given that
it means that decisions about people’s liberty are now being taken
by what are, with the greatest respect, administrative bodies. One
problem in the Bournewood case was the patient’s
lack of ready access to a court, and although the Court of
Protection remains a long-stop, that problem might not have been
solved by the DoLS. It is perhaps surprising that the Daily Mail
hasn’t shown more interest.
Furthermore, the procedure for seeking DoLS
permission is complex and bureaucratic - many would say
unnecessarily so. It can take up to three weeks and involves
several lengthy forms, six separate assessments and, usually, at
least one psychiatrist and a social worker. Maybe that is what has
made the procedure unpopular.
There are also broader problems with the DoLS,
not least the fact that because of the way they are drafted, they
might not even apply to the patient whose case led the ECtHR to do
what it did. Furthermore, a recent decision of the House of Lords
in a public order case might mean that there is no one – not a
single patient with a learning disability or little old lady with
dementia – to whom the DoLS apply. Maybe that explains the
figures.
And there is also great uncertainty about
precisely when the DoLS apply, reflecting similar uncertainty about
just what it means to be deprived of liberty. Surprisingly, given
its importance to what are, after all, the Deprivation of
Liberty Safeguards, the term is not defined, either in the
DoLS or in the slim code of practice that accompanies them. And
now, there is growing anecdotal evidence that practitioners are
taken wildly divergent views. That is unfortunate, both in itself
and for a further reason: the statistics suggest that where a
request for DoLS permission is refused, the commonest reason is
that the patient was not deprived of liberty. If that conclusion
was reached in error, permission is being refused where in truth it
should have been granted, and a vulnerable person is being
unlawfully detained.
But there might be another, perhaps related,
explanation for the low take-up of the DoLS: that in some – quite a
few, in fact - parts of the country, applications are being
actively discouraged. That would be very worrying, and not just
because public bodies would be failing in their duties. Hospitals
and care homes too would be placed in jeopardy. Where permission is
required to deprive an incapable person of liberty, the failure to
obtain it will be unlawful and that one was discouraged from
seeking it will be no defence.
David Hewitt,
Partner
Weightmans LLP
The most recent DoLS statistics may be found
here.