Mental Health - July 2010
Home thoughts abroad
It seems that opinion is divided on the subject of the
DoLS
In the last edition of this newsletter, I
wrote about the Deprivation of Liberty Safeguards (DoLS), by which
incapable people can be deprived of liberty but given some basic
protection at the same time. I made similar comments elsewhere, and
they received a number of heartfelt, though by no means unanimous,
responses. I thought it might be helpful to report something of
what my correspondents said.
No one disagreed that the number of DoLS
applications is well below what was expected, but not everyone
accepted that in some places, applications are actually being
discouraged. One DoLS lead was “disappointed” by my
suggestion. He said, “My team and I are working very hard at
promoting the importance of the safeguards and very much take an
if-in-doubt-apply approach”, and he described the DoLS as “a very
powerful tool for positive change and holding services to
account.”
Some correspondents felt the statistics might
not reflect bad practice. One, a doctor in an area with little DoLS
activity, referred to his local training strategy, which
“emphasised that deprivation of liberty amounts to relatively
draconian control over someone's life.” He favoured an approach
based on the Mental Health Act: “For the last 20 years I have been
a proponent of the use of guardianship as a means of making
important accommodation decisions for people who lack capacity, and
we appear to have roughly trebled the number of guardianships used
in the last ten months.” Of course, while guardianship may be
appropriate for those who are not within the DoLS, the conventional
view is that it has little to offer where someone is deprived of
liberty.
Most correspondents considered the safeguards
unduly complex, and some reported general opposition to their use.
One, a Mental Capacity Act (MCA) co-ordinator, said, “Many senior
people consider deprivation of liberty a ‘bad’ thing and therefore
are reluctant to invite external scrutiny on whether they are
responsible for it.” Some felt the process might fail even
without overt opposition. A DoLS lead wrote, “Care managers are not
always recognising behaviours that warrant the need for a
referral”, while someone else said the MCA “is not clearly and
properly understood by many practitioners on the ground and
certainly not by managers of homes and hospitals.” This might, he
felt, have profound implications: “I am not sure that
decision-makers are even getting through the starting gate of the
MCA, never mind reaching the logical finishing line that is
DoLS.”
Several correspondents identified poor
planning as a problem. The doctor who favoured guardianship said
that before resorting to the DoLS, everyone “should consider first
whether they could change the care plan so that an individual was
not being deprived of their liberty - emphasis on choice, few
restrictions and keeping relatives on side.” One DoLS lead,
however, saw this differently: “care managers drag their heels
trying endless means of pacifying anxious service-users, only
resorting to a DoLS referral after about three months of
perseverance.” Far from it being necessary to keep relatives
onside, she said most are “fearful of the possibility of loved ones
being discharged to their care, and therefore their views about
whether there is deprivation of liberty are somewhat
distorted.”
This correspondent said that recently, “a wife
told an assessor that her husband was absolutely fine, rarely spoke
of wishing to leave the care home and could easily be persuaded to
behave. This was in stark contrast to what had actually been
occurring.”
Inadequate recording was also identified as a
problem, not least by this same DoLS lead: “one of our referrals …
failed due to insufficient evidential logging of the service-user’s
behaviour. This raises the question: given that few care
homes are meeting the guidelines for accurate and consistent
recordings, will we ever be able to evidence a deprivation of
liberty?”
Finally, several correspondents agreed that
uncertainty about deprivation of liberty itself is a significant
problem, and that different assessors might take different views,
especially in more complex cases. A DoLS lead said, “I conclude
that unless a person is shouting ‘let me out’ from the rooftops,
wrestling staff to the floor and needing to be sat on, constantly
making an opportune exit through any open door or needing heavy
sedation to control their behaviour, it is just not obvious enough
to amount to deprivation of liberty.”
The Deprivation of Liberty Safeguards continue
to excite great debate, even if – or maybe because – they are so
rarely encountered. From my own postbag, however, it seems that
views are polarised, and that some people are profoundly
dissatisfied, both with the purpose of the DoLS and with the way
they are used.
David Hewitt,
Partner
Weightmans LLP
The original article may be found
here.