Ten signs of trouble with the deprivation of liberty safeguards

(A pdf copy of this post is available here)

Recently I’ve been trying to encourage various organisations to pay attention to the problems with the deprivation of liberty safeguards. The Mental Health Alliance recently published a second review of the DoLS, confirming that there are serious problems with the safeguards. Drawing from their report, and my own research, here are ten reasons why organisations with an interest in human rights should be really worried about the DoLS:

1. There is a postcode lottery in Article 5 protection and many thousands of people in hospitals and care homes are detained without safeguards.   The uptake of the safeguards has been far lower than expected and varies enormously between different areas.

2. The meaning of ‘deprivation of liberty’ is not well defined. The scope of the safeguards was left to be determined by case law, but the courts have delivered conflicting, complex and increasing narrow definitions of deprivation of liberty. As a result there is widespread confusion over the scope of the safeguards, and many vulnerable older and disabled people now fall outside their scope.

3. The scheme is highly complex and riddled with loopholes. Even judges have complained that the scheme is so intricate that it is ‘completely inaccessible to those for whose benefit the legislation has been devised’[1].

4. The safeguards are not available in all the social care settings where people may be detained. Local authorities have been required to seek authorisation annually for deprivation of liberty in supported living and residential schools directly from the courts. This is extremely costly and burdensome for local authorities and courts alike.

5. The appeal rate is worryingly low. In the first year 1 in 200 authorisations resulted in an appeal. In the second year, this rose to 1 in 120. This suggests people are having trouble exercising their rights of appeal using the safeguards.

6. The success of appeals using the safeguards is unknown, but appears to be low. In over three years, the only recorded case of a person successfully using the safeguards to be discharged from detention is Stephen Neary. This took a year – longer even than HL in Bournewood.

7. The courts are creaking under the strain of the DoLS. Despite the fact the appeal rate is worryingly low, there are signs that the courts are struggling to cope with DoLS cases. This may be related to the extreme complexity of the safeguards, and a lack of additional funding for the High Court to hear such cases and train the judiciary.

8. Support for detainees to exercise their appeal rights is patchy. Most detainees will require support to appeal, and many families will struggle to understand the safeguards without input from an advocate. Yet advocacy referrals are very low indeed, despite being recognised in case law as a vital element of Article 5 protection.

9. Supervisory bodies administering the safeguards have conflicts of interest. They exercise a quasi-judicial role in authorising and reviewing detention, and are also responsible for supporting people to appeal against their detention. However, they have often arranged the care that constitutes detention themselves, and may not want to attract scrutiny or challenge of their commissioning or safeguarding decisions.

10. The scheme is deeply unpopular amongst those who must apply it. The name ‘deprivation of liberty safeguards’ deters managing authorities from seeking authorisation where they should. The highly bureaucratic and resource-intensive application and authorisation process leads to resistance among supervisory bodies and managing authorities.  There are few incentives or pressures to encourage compliance.

If these tens reasons to be worried about DoLS concern you, then you can help to make some noise.  Write to your MP, write to the Equality and Human Rights Commission, or write to the Joint Committee on Human Rights and ask them to look into DoLS. If you work for an organisation with an interest in human rights and you want more information, don’t hesitate to get in touch.

[1] Re C; C v Blackburn and Darwen Borough Council [2011] EWHC 3321 (COP)

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6 thoughts on “Ten signs of trouble with the deprivation of liberty safeguards

  1. I really like your ten signs of trouble post. But I can not resist making a reply, partly because I know that you will enjoy the debate but also out of concern for the damage that this understandable disaffection for the DoLS process can have on what is after all the first and only safeguard that many of our most vulnerable citizens have ever been offered. I sincerely believe that my efforts and those of our team of best interests assessors and S12 doctors have not been wasted and have had a positive impact on the care and circumstances of the people and settings that we have reached out to over the past three years.

    We have independently scrutinised not just the practice but the institution's thinking in some settings and circumstances that, were it not for the efforts of Mr and Mrs E, we would never have been given access to. I wish only that our impatience and frustration with the pace of change was focussed towards amplifying the debate that will eventually drive cultural change. It seems quicker and more proactive to keep calling for a change in process, but for something as fundamental as our understanding of the rights of the incapacitated we need to change the meaning and our cultural understanding of what we do, for whom and why. I fear that all this vociferous disaffection for the current process might even result in a change in that process, but it will be no more informed than the original draft and no more owned by the professionals that will implement it or the families and citizens that will be touched by it.

    It is true that I have been to the care home or the hospital ward to work with the staff many many more times than I have been to the Court of Protection. But where do you think the real job of safeguarding our peers really happens when it goes according to plan, and how many of the learned critics of DoLS have actually operated the procedures and shaped the attitude of the care assistant, nurse or family member outside of the court?

  2. A DoLS Coordinator's reply in several posts….

    1. Almost nobody appears to have been released from detention using the DoLS. The only recorded case of a person successfully using the safeguards to be discharged from detention is Stephen Neary. This took a year – longer even than HL in Bournewood. No official figures are collected.

    This is not the best indicator of success as it would only record the cases in court. MHRTs release relatively few people, but many people are discharged through the due process of the MHA. Thousands of people who can not consent to their care plans have been safeguarded through independent scrutiny of the state’s compliance with the 5 core principles through the DoLS process. You should also consider the number of authorisations refused on the grounds of best interests, none of whom would have had their circumstances checked without DoLS. HL was not released by the Court, it was 6 years before the court ruled, Neary had a court to apply to, whose judgement released him, and also reinforced the standards of practice for all future assessments.

    2. The appeal rate is worryingly low. In the first year 1 in 200 authorisations resulted in an appeal. In the second year, this rose to 1 in 120. This suggests that the rights of appeal provided by the safeguards are inaccessible to most people.

    The COP is the last resort, many of the authorisations came with legally enforceable conditions designed to reduce the level of restriction. What rate of last chance appeal would you expect from a cohort who can not instruct their solicitors within a culture where they have never had this right before? An early survey of Mental Health Lawyers in Wales found that initially even solicitors on the Mental Health Panel were incorrectly advising people that there was no legal aid.

    2. The meaning of ‘deprivation of liberty’ given in case law is complex, contradictory and increasingly narrow. Those who are expected to apply the safeguards do not understand where they should use them. Recent rulings have taken on an Orwellian character, where even a person who kicked down the door of his care home trying to escape was not considered to be deprived of his liberty.

    The over involvement of Lawyers, and the lack of engagement from the key professionals have led to a preoccupation with the meaning of DoL and a lack of engagement with the Safeguarding element of the procedure.
    2
    Without safeguards people are left in a Kafkaesque limbo, unable to challenge their involuntary confinement in hospitals and care services, or attract proper scrutiny of restrictive care practices like restraint or seclusion.

    As indeed they have been for generations, the DoLS at least take us a step nearer to independent scrutiny at a time when CQC and CSSIW seem to be withdrawing from individual cases.

    3. The scheme is highly complex and riddled with loopholes. Even judges have complained that the scheme is so intricate that it is ‘completely inaccessible to those for whose benefit the legislation has been devised’

    “Loopholes” are a uniquely legal description for clinical discretion or even error. The practical problems of assessing capacity and agreeing best interests remain, and call for a professional debate leading to consensus, and a degree of objectivity in realising that our professional preference is in fact often simple bias in favour of risk aversion. By the time that this dissonance achieves legal scrutiny this appears much more like conspiracy to exert power inappropriately – which ultimately it may be, but this is never going to be seen at this level by clinicians without a broader realisation of people’s rights, which will never be achieved through policy or law. Development of Safeguards for those who can not consent has taken the form of “if you build it they will come” in terms of building new procedures and hoping to fill this new space with good practice. That has never succeeded before in democracy, and it is unlikely to now.

  3. 5. The scheme is poisoned by conflicts of interest. Local authorities and PCT’s exercise a quasi-judicial role in authorising and reviewing detention under the safeguards, and are also responsible for supporting people to
    appeal against their detention. However, they have often arranged the care that constitutes detention themselves, and may not want to attract scrutiny or challenge of their commissioning or safeguarding decisions.

    True- but you load the point with language that betrays your own bias. “poisoned”, for example, and you flatter the Local Authority and Health with the ability to conspire to a degree that they simply are not efficient enough to achieve. This is cock-up not conspiracy, human frailty seeking not to be caught out or blamed. To what end would the state conspire to deprive our most vulnerable citizens of their rights – particularly since even with the relatively few appeals, it is not in fact cheaper to do so. The cheapest option is not to provide institutional care and to invest risk into our care plans, but this too is not done through the same fear. I have conducted and supervised hundreds of Authorisations and assessments and not once have I encountered the type of collusion that you allege.

    6. The rights of people in supported living, residential schools and children’s care homes are still not protected at all by the safeguards. Although detention has occurred in these settings, the safeguards do not apply there. Meanwhile, local authorities are expected to authorise detention outside the scope of DoLS directly from the courts, which is cumbersome and extremely expensive.

    Be clear do you want to expand DoLS or abolish them? So-called community support schemes that are capable of detaining people should be registered under a new class of registration which comes under DoLS. Are such schemes really less than institutional? The problem here is with definition of care settings. It is not a coincidence that community supported living placements are funded partly through housing benefit and it is likely that the definition of such projects is as much to do with this as it is a description of the actual care activity that is going on. Of course you will need complicated criteria to describe illogical real world settings. Much simpler to call a spade a spade and admit that any setting that is capable of complete environmental control/intervention should be a registered institution. Currently we invent creative ways to pretend that incapable persons can have a tenancy to enable funding through benefits sources for what amounts in some cases to care capable of depriving a person of their liberty.

    7. The courts are creaking under the strain of the DoLS. Despite the fact the appeal rate is worryingly low, there are signs that the courts are struggling to cope with DoLS cases. This may be related to the extreme complexity of the safeguards, and a lack of additional funding for the High Court to hear such cases and train the judiciary.

    They are ripe with the stench of highly paid otherworld elite lawyers plying their trade on the backs of persons who can’t consent to their instruction – wrong court? Wrong lawyers? 1 Hour of a Q.C.’s time will usually pay for a week of residential care.

  4. 8. Support for detainees to exercise their appeal rights is patchy. Most detainees will require support to appeal, and many families will struggle to understand the safeguards without input from an advocate. Yet advocacy referrals are very low indeed, despite being recognised in case law as a vital element of Article 5 protection.

    Shame on the practitioners who can and must refer to DoLS but fail to do so but this is an argument for scrutiny and regulation. This takes us back to the need for practitioner engagement in the meaning of DoLS. How will we ever have this debate if we keep on moving the goal posts because the Lawyers fear that its not working.

    9. There is a postcode lottery in Article 5 protection, and many thousands of people are detained without any safeguards at all. Government figures show that use of the safeguards varies enormously, and that their uptake is still far lower than even the conservative predictions of the impact assessment.
    This is a failure of regulation and scrutiny, back to the need for debate and engagement at the level of meaning amongst the professionals.

    10. The scheme is deeply unpopular amongst those who must apply it. The name ‘deprivation of liberty safeguards’ deters managing authorities from seeking authorisation where they should. The highly bureaucratic and resource-intensive application and authorisation process leads to resistance among supervisory bodies and managing authorities, and there are few incentives or pressures to encourage compliance.

    I can’t but agree, except that I feel that all care plans that can not be consented to should be open to safeguarding – how unpopular, bureaucratic and resource intensive would that be! Its unpopularity is a function of ignorance. Better invest resources to develop the debate at the level of practice before lawyers reinvent a process that they would not be able to imagine actually applying in practice – again! Our concern or squeamishness about the terms of deprivation of liberty actually speaks to the heart of the cultural problem. We need to wake up to the fact that we are depriving people of their liberty before we can hope to value the role of safeguarding those people appropriately. A cell by any other name would be as secure; calling the guards by their first names does not set you free. Prison officers and Psychiatric care staff can be proud of the protection that they offer the public and the individuals in their care. The big news from HL was that other care staff are seen by the Europe as doing a similar thing in the best interests of our peers and often our elders. What’s wrong with that? Being proud to serve and protect our vulnerable citizens is lost in the inference of shame that the effect of this care on some people can not be named without euphemism.

  5. ‘I fear that all this vociferous disaffection for the current process might even result in a change in that process, but it will be no more informed than the original draft and no more owned by the professionals that will implement it or the families and citizens that will be touched by it.’

    It would be terrible if DoLS were amended and were made even worse. But what I would say is this. There is currently absolutely no sign from the DH that they are considering revisiting DoLS. I really don’t think there is any danger that next week, next month or even next year the DH are suddenly going to leap into action and replace DoLS with some other framework. It’s just not on their agenda.

    Meanwhile, raising the profile of the problems with DoLS can help to coalesce a wider debate about their purpose, and how they might be improved. Aside from the few people like yourself who work with DoLS, and a few geeky academics, this just isn’t happening. A push towards reform can be a call to arms, a focus for debate and a crucible for cultural change. Law and cultural change have a complex relationship – on the one hand, law needs the co-operation of citizens in order to work, but on the other hand, law can help to prompt cultural changes by creating focal points for discussions up and down the country. In fact, this is precisely what DoLS has done in some parts of the country, there have been really, really innovative teams using DoLS to raise awareness of disability rights, and to put some kind of due process on the MCA. I agree with you that the court process isn’t always needed, that’s an argument I make to lawyers all the time. In some areas input from DoLS teams like yours can be very, very valuable indeed and can result in discharge from detention or at least a major improvement in conditions.

    But the problem is that not everyone is like you Martin. You and I both know that there are many parts of the country where DoLS are fiercely resisted, or where people are just plain ignorant about them. In those places, the DoLS contain far too many contingencies that can go wrong. Oppositional family members can be overlooked for representatives. Advocacy referrals don’t happen. Referrals to court for ongoing disputes don’t happen. DoLS don’t get applied at all. At the first sign of trouble authorisations get revoked yet a person’s situation remains the same etc etc. These issues could be tightened up with law reform. I really don’t think it’s a good argument to say “let’s wait for culture to catch up before we ensure that people have a decent legal safety net”. And the process of collaboratively constructing a decent legal safety net can help to bring that culture forwards. The first time round, the concerns of everybody who needed to be on board with DoLS were ignored because the consultation was so rushed. It wasn't even owned by 'the lawyer's – it was owned by a single nameless government lawyer whilst everybody watched in horror. This time, if we can get everybody on board, informed and talking about it before pushing for reform, we stand a much better chance of taking everybody with us and ‘owning’ the DoLS.

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