It has long been recognised that the Deprivation of Liberty Safeguards (DoLS) are not 'fit for purpose' and, despite the law introducing the Liberty Protection Safeguards (LPS) being passed in 2019 (The Mental Capacity Amendment Act 2019), after a number of 'false starts', it was announced in April 2023 that LPS would not be progressed during the current Parliament. So where does that leave us?
In this briefing, we highlight the implications of the delay and what health and social care providers can do next.
Where are we now?
Unfortunately, it appears that we have become accustomed to unlawful deprivations of liberty, which in some circumstances seem to have become almost routine. Key gaps with the current process were highlighted by the CQC's 2022/23 State of Care report.
Current issues include:
- Only 19% of DoLS authorisations are obtained within the 21 day period (average national time for completing authorisations is 156 days)
- Major delays for processing of 'community DoLS' authorisations by the Court of Protection
- Ongoing issues where 16/17 year olds require deprivations which can only be authorised by the Court of Protection
It is important to remember the impact of unauthorised deprivations of liberty, as highlighted in the CQC report, including:
- People being unnecessarily deprived of their liberty or with excessively restrictive care plans
- Challenges for care providers in keeping people safe without authorisations in place
- Limited ability to challenge any care plan without an authorisation being in place (so a funded s.21A challenge can be brought)
- Increased delays in emergency departments leading to more unauthorised deprivations of liberty
Of course, the challenges in authorising deprivations of liberty are no defence to any claim for unlawful deprivation nor an answer to complaints and challenges from the regulators or the Ombudsman.
Next steps
Ultimately, fundamental resource/legislative changes are required. However, there are still steps that providers can now take to minimise the impact:
1. Knowledge and application of MCA back-to-basics
The CQC report highlights a number of basic failings in the understanding/application of the Mental Capacity Act, which could be addressed now, putting organisations in a much stronger position pending any future changes.
2. MCA/MHA interface
- Whilst the interface between the Mental Capacity Act and the Mental Health Act can be very complex, the majority of the time the legal position is (or should be) clear. There should again be a focus on improving staff knowledge and confidence in dealing with the 'basics'.
- In hospital settings, there needs to be a reconsideration of how to choose between the Mental Health Act and DoLS, when in reality DoLS is simply not available.
3. Deprivation of Liberty Safeguards basics
Where a DoLS authorisation is in place, organisations need to ensure that staff understand the legal effect of this. In particular, it is important to understand that a DoLS authorisation does not provide legal authority for any care/treatment and staff need to ensure that any conditions are met, reviews are triggered when required and further authorisations are requested as necessary.
4. Discussions with the supervisory bodies
Pending legal change, organisations should consider discussions with the relevant supervisory body/bodies in order to formulate a plan to address any backlog or other particular organisational issues.
5. Community deprivation of liberty issues
Care needs to be taken not to be pressured into 'misusing' community Mental Health Act provisions.
How we can help
Our national team of mental health specialists has extensive experience in advising health and social care providers and commissioners in relation to all aspects of the Mental Capacity Act, DoLS and the Mental Health Act.
We can assist organisations in developing a plan to address their current issues, including development of a bespoke training plan and assistance with audit and policy/process review.
