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Liberty, equality, capacity: The impact of the Deprivation of Liberty Safeguards on human rights and social care practice
Liberty, equality, capacity: The impact of the Deprivation of Liberty Safeguards on human rights and social care practice
01 March 2014
01 May 2010
28 February 2014
Deprivation of Liberty Safeguards; Mental Capacity; Safeguarding; People who lack capacity
- Dr Marcus Jepson, School for Policy Studies, University of Bristol
- Ms Joan Langan†, School for Policy Studies, University of Bristol
- Professor John Carpenter, School for Policy Studies, University of Bristol
- Dr Liz Lloyd, School for Policy Studies, University of Bristol
- Dr Demi Patsios, School for Policy Studies, University of Bristol
- Professor Linda Ward, School for Policy Studies, University of Bristol
Protecting people who lack capacity from harm is sometimes done in a way that deprives them of their liberty. This may, for example include staff effectively being in control of most of a person's life. Until 2009 there were no procedures in place to protect individuals subject to such constraints on their autonomy. Professionals did not have to justify why they were depriving someone of their liberty and there was no means of appeal. This changed in April 2009 with the introduction of the Deprivation of Liberty Safeguards (DOLS ).
The safeguards provide formal procedures to protect people who ‘for their own safety and in their own best interests’ need care and treatment that may deprive them of their liberty but who lack the capacity to consent and where detention under the Mental Health Act 1983 is not appropriate for the person at that time.
There has been little research on the impact that DOLS are having on individuals’ lives and on adult social care practice. It is important to understand if, and how, DOLS protect vulnerable individuals who lack capacity from harm and unnecessary interference with their liberty and support them to make decisions, wherever possible.
This project aimed to examine the implementation of the Deprivation of Liberty Safeguards (DOLS ) and the extent to which they protect the human rights of people who lack mental capacity. Its objectives were to
- investigate the impact of DOLS on practitioners’ and carers’ practice and on their awareness of human rights principles,
- examine the factors that lead to applications for DOLS being authorised or rejected,
- analyse the rationale for the infringements to individual liberty and autonomy permitted by DOLS,
- assess the use of ethical reasoning in decision-making among those applying for or authorising DOLS,
- explore key elements of good practice.
Changes to project objectives
The project was the brainchild of Joan Langan, and she was the project PI until she was diagnosed with acute leukaemia in October 2012 (and later passed away). Since then the project was taken forward by Dr Marcus Jepson and Professor Linda Ward, in addition to the original project team of Professor John Carpenter, Dr Liz Lloyd and Dr Demi Patsios. This led to a short interruption in the study. Additional dissemination activities were proposed within existing budgets towards the end of the original study (June 2013) and an extension was approved to February 2014.
The Deprivation of Liberty Safeguards (DOLS) were introduced in 2009, for use where adults do not have the mental capacity to make informed decisions about their care or treatment in certain settings and circumstances. Under the Safeguards, whenever staff in a care home or hospital believes someone in their care is likely to be deprived of their liberty, they must apply to the local authority for an authorisation to detain them (thus becoming the managing authority). The supervisory body is responsible for carrying out assessments to determine whether deprivation of liberty is occurring, and if so, whether it is in the individual’s best interests, or whether care can be provided in a less restrictive manner.
This study examined the implementation of DOLS in England and their impact on care practice, through case studies, interviews and a factorial survey using case vignettes.
The study took place in four local authority areas in England. Scoping interviews with DOLS leads in these authorities were followed by data collection from 9 ‘live’ DOLS cases, involving multiple interviews with the managing authority applicant, the relevant person’s representatives (and/or Paid Representative), the DOLS assessors (BIAs and MHAs), the supervisory body signatory and (where appropriate) the relevant person’s advocate and social worker. The IMCA provider in each of the study sites was also interviewed. Supplementary data was also gathered from an additional set of care home managers, BIAs, MHAs and SB signatories about individual, anonymised DOLS cases. In total 52 people were interviewed in the case study phase, and 27 in the supplementary stage of the study. An online factorial survey of BIAs was also conducted to explore the factors that influenced their decision making in DOLS cases.
What triggers a DOLS application?
Responsibility for deciding whether to apply for a DOLS authorisation lies with the managing authority (the hospital or care home where the person lives). In this study, it was often the professionals connected to the relevant person who encouraged managing authorities to make a DOLS application. Where the decision to apply for a DOLS authorisation was initiated by the managing authority, the most common reason given for considering that the care being provided constituted a deprivation of liberty was that the relevant person seemed to be objecting to being in the setting and/or asking to leave it. In several cases the person was actually attempting to leave.
Following a request for a DOLS authorisation, the supervisory body (i.e. the local authority) must get six different assessments from qualified assessors, including an assessment of mental capacity, mental health and to establish whether the deprivation is in the person’s best interests.
In general, assessors had confidence in their ability to complete assessments, feeling they had received comprehensive training for their role. Some care home staff, however, reported inconsistencies in assessors’ decision making. Several assessors said they found the mental capacity assessment most challenging, especially in the limited time available to assess a person’s capacity in the case of an urgent (7 day) DOLS authorisation.
Doctors responsible for mental health assessments did not declare any particular problems or challenges in undertaking their role. Several highlighted the importance of undertaking assessments quickly, to minimize distress for the relevant person. Some authorities made regular use of equivalent mental health assessments (e.g. recent assessments already undertaken), particularly where a second DOLS authorisation was sought soon after a first. The use of equivalent assessments caused unease among some BIAs, who felt that the resulting lack of consultation between assessors was detrimental to the robustness of the assessment process.
As part of the process of completing best interests assessments, BIAs described how they initially read the information on the DOLS application. Some used their local authority databases to trace the person’s history. Many mentioned the importance of speaking to the relevant person’s social worker, if possible, in advance of any visits. Some found it useful to contact the care home or ward in advance. This was to make staff aware of what information they would need to complete their assessment; to ensure care staff who knew the relevant person were available along with the person’s care plans and day to day care records. However, this information was not always clear or readily available to BIAs, which made the assessment process more difficult. Sometimes BIAs were unable to speak to the relative of the relevant person within the timescale of an urgent authorisation; this limited the comprehensiveness of the assessment.
Making decisions about DOLS
BIAs were asked if authorising care practices that constituted a deprivation of liberty had caused them any ethical dilemmas or concerns. Many of the BIAs in this sample were concerned about the potential impact of the deprivations on the relevant person’s life. They expressed anxiety about endorsing care practices that might restrict family access, or reduce the individual’s freedom, but weighed the impact of the DOLS against alternative (or previous) options. BIAs talked about how particular values influenced their decision making, especially trying to be ‘as person centred as possible’, so that the person in each case was at the centre of the decision making process.
The online survey of BIAs found that a deprivation of liberty was most likely to be identified in situations where members of staff were preventing someone who evidently wanted to leave a setting from doing so. Other apparent indicators of staff control over an individual were also factors in identifying the situation as a possible deprivation of liberty. Thus, the use of medication to reduce agitation and anxiety could be seen as having a restraining function. The presence of regular distress and agitation was in itself a strong predictor of a deprivation of liberty being identified, presumably being interpreted as an indicator of the person’s negative feelings about their situation. Conversely, BIA were not influenced in their decision making by the resident’s condition, gender and age, or the whether they were in a care home or hospital.
BIAs were generally confident about their judgements; social workers, approved mental health professionals and independent practitioners (who were generally the most experienced) were no more or less confident than other BIAs. The majority of respondents cited case law in support of their judgements.
The impact of DOLS
External scrutiny of care practices
Some care home managers were reticent about making DOLS applications, fearing that doing so was an admission of a ‘failing’ on their part in relation to the quality of care provided. However, several felt that the level of scrutiny provided by the DOLS assessment process endorsed their working practices, assuming the care they provided was deemed to be in the best interests of the relevant person.
Changes to relevant person’s care
There was tangible evidence to suggest that DOLS processes had led to changes to the relevant person’s care (even when the DOLS was not authorised). For example, several people were receiving less restrictive care following the DOLS assessments. This may have been, in part, a consequence of other professionals examining practice, and using their knowledge and experience to make suggestions on how to change care regimes. In some cases, relatives and professionals alike agreed that authorising the DOLS had meant the relevant person was kept in a safe environment, often on a short term basis – while they received treatment.
Changes to care plans
Care plans were not uniformly changed as a consequence of a DOLS authorisation, although in some instances the specific conditions attached were recorded in a separate DOLS care plan. Sometimes, however, care plans were revised to ‘more honestly’ reflect the care regime that the relevant person experienced. Some social workers did not know how the DOLS had impacted on the care, or care plans, of service users.
Impact on Human Rights
As part of the online survey, BIAs commented on the impact the DOLS had made on the human rights of people subject to the safeguards. Most of the 62 respondents said that the DOLS had had either a little (n=26) or a great deal (n=33) of impact. Most were positive about the legislation’s potential for improving service users’ human rights. The legislation was said to have produced a more robust system, with greater scrutiny of decisions, more people involved in decisions, better capability of resolving conflicts and enabling practitioners to explain or defend their decisions more clearly. Several made references to these being ‘early days’ following the introduction of DOLS; they described procedural problems, including the cumbersome and bureaucratic systems involved with appeals. Others referred to the inconsistent and patchy implementation of DOLS, which was seen to have a different impact on client groups or practice settings.
Relatives and representatives’ views
Contact with the person
Relatives who fulfilled the DOLS representative role had regular contact with their family member – at least weekly and often more regularly. They were kept informed about their relative’s situation through a combination of informal discussions with staff when they visited the setting and formal update meetings. Where the person did not have any family members, a paid representative followed a similar approach to keep abreast of the behaviour of the client and to monitor how the care team were implementing the DOLS conditions.
Relatives’ contact with BIAs and involvement in decision making
Relatives were generally positive about the contact they had had with the BIA – which was typically face to face, although occasionally over the telephone.
BIAs used meetings to provide information to relatives about the DOLS process, to seek information about the wishes and feelings of the relevant person and to ask the relatives’ views about what they thought would happen to the person if there were no DOLS put in place.
Relatives spoke appreciatively of the opportunity given to say what they felt was the best course of action for their family member. In one case, a relative was able to express concern to the BIA about the quality of care for her son; this concern was ultimately addressed as a condition of the DOLS authorisation.
the person who is the subject of the DOLS application
the care home or ward where the person lives
Supervisory Body (SB)
the local authority, whose role is to agree or not agree the DOLS authorisation
Best Interests Assessor (BIA)
the assessor carrying out the best interests assessment (usually a social worker)
Mental Health Assessor
the assessor carrying out the mental health assessment (usually a doctor)
Independent Mental Capacity Advocate (IMCA)
someone appointed to support a person lacking capacity in some circumstances and represent their views to those working out their best interests
Relevant Person’s Representative
someone appointed to represent and support the person subject to the DOLS application (usually a relative or close acquaintance)
an independent person appointed to carry out the same functions as the relevant person’s representative, where there is no family member or close acquaintance to do this
Plain English summary
Protecting people who lack capacity from harm is sometimes done in a way that deprives them of their liberty. The introduction of the Deprivation of Liberty Safeguards (DOLS ) was designed to change this, providing formal procedures to protect people who ‘for their own safety and in their own best interests’ need care and treatment that may deprive them of their liberty but who lack the capacity to consent and where detention under the Mental Health Act 1983 is not appropriate for the person at that time.
This project examined how DOLS work in practice and whether they protect the human rights of people who lack mental capacity. The study involved case studies, interviews and a survey using scenarios taken from actual cases.
Key findings from the study included:
- Managing authorities (in this study usually care homes) often had to be ‘nudged’ by others (e.g. professionals involved with the person) to make a DOLS application;
- A key indicator that someone was being deprived of their liberty was the person attempting to leave where they are, or repeatedly saying that they wanted to leave;
- Best Interest Assessors (BIAs) said the information they needed for their assessment was not always readily available from care home staff;
- Some assessors felt that the limited time allowed to complete their assessments (in particular, the Mental Capacity Assessment) was detrimental to good practice;
- An online factorial survey using fictionalised case studies identified the key factors in BIAs’ decisions to authorise a DOLS. Most significant were situations where members of staff were preventing someone who evidently wanted to leave a setting from doing so and the resident’s response and family unhappiness with care. Other indicators of staff control, including the use of medication to reduce agitation, restriction of movement and family unhappiness with care, were also significant. These factors were consistent with the Code of Practice and case law;
- At the heart of the BIAs’ decision-making when authorising a DOLS application was a desire to keep the person safe;
- One impact of DOLS was a detailed scrutiny of care practices. While some care home managers expressed anxiety about this, others felt this level of scrutiny was reassuring in endorsing their practices;
- A majority of BIAs felt that the DOLS had made a positive impact on the human rights of the people protected by the safeguards, although some were concerned that the appeals process was overly bureaucratic.
- Carpenter J, Langan J, Patsios D, Jepson M (2013) Deprivation of Liberty Safeguards: what determines the judgements of Best Interests Assessors? A factorial survey, Journal of Social Work, 12, 1-18.
- NIHR School for Social Care Research (2014) The Deprivation of Liberty Safeguards: their impact on care practice, Research Findings 4, NIHR School for Social Care Research, London.
- Marcus Jepson, Implementing the Mental Capacity Act and Deprivation of Liberties Safeguards, Community Care Conference, London, 19 March 2014
- Marcus Jepson, Deprivation of Liberty Safeguards and their impact upon social care practices, XXXIII International Congress on Law and Mental Health, Amsterdam, 14 July 2013
- Marcus Jepson, The Deprivation of Liberty Safeguards. Findings concerning Best Interests Assessors' decision making and the impact of DOLS on care practice, NIHR School for Social Care Research Annual Conference, London, March 2013
- Marcus Jepson, Working with the Deprivation of Liberty Safeguards: Research findings and their impact upon care practice, Presentation to the Age UK/Brunel Care research forum, 2013
- Marcus Jepson, The Deprivation of Liberty Safeguards research findings: implications for practice South Gloucestershire Council DOLS forum, 2013
- Marcus Jepson, The Deprivation of Liberty Safeguards research findings: implications for practice. Islington Borough Council DOLS forum, 2013
- Joan Langan, DOLS’ impact on social care practice and human rights. Oral presentation at the Socio-Legal Studies Association conference, Leicester, 2012
- Joan Langan, Preliminary findings from a factorial survey of Best Interests assessors’ decision making. Presentation to the Welsh DOLS regional forum, 2012
The project was supported by a research advisory group (RAG) consisting of nine external people, and including three family carers, an experienced DOLS Best Interests Assessor, a mental health service user and representatives from the Challenging Behaviour Foundation, the Alzheimer’s Society, an independent care home provider organisation as well as the funding body. The group met face-to-face three times during the course of the project; a fourth meeting had been scheduled but coincided with Ms.Langan’s diagnosis and, following consultation with members, it was agreed that this meeting would be cancelled and replaced, with additional ‘virtual’ discussions involving several members of the group, drawing on their particular area(s) of expertise.
The study team provided evidence to the Mind legal team to aid their preparation for a supreme court hearing in October 2013 concerning the application of DOLS and thus contributed evidence to the judgements in the conjoined cases “P v Cheshire West and Chester Council and another” and “P and Q v Surrey County Council”.
The team were also invited to submit written evidence to the House of Lords select committee on the Mental Capacity Act concerning the use of the DOLS in March 2014, and were approached by the Equality and Human Right Commission to discuss the research findings in connection with their inquiry into DOLS policy, practice and effectiveness.
This project was funded by the National Institute for Health Research School for Social Care Research (project number T976/T09-032/UBJL).
Department of Health Disclaimer
The views and opinions expressed therein are those of the authors and do not necessarily reflect those of the NIHR School for Social Care Research, NIHR, NHS or the Department of Health.