On Capacity and Deprivation of Liberty


Having been a Best Interests Assessor since the position came into being, I have a particular interest in how the deprivation of liberty safeguards (DoLS) work (or don’t) in practice. I am a fan of the Mental Capacity Act (2005) to the point of becoming quite defensive in the face of opposition to it. This is because having worked in older adults services (and more specifically in dementia services) since before the Act came into force, I’ve seen the big changes that it has made in codifying and protecting the rights of people who may lack capacity to make specific decisions at certain times in their lives.

What was a previous reliance on ‘common law’ principles of professionals/family members making decisions which were more often than not ‘in people’s best interests’ changed to become codified and provide protections to people who are in these situation where no specific legal reference existed before. While the ‘Daily Mail’ crowd grumble about decisions being made by ‘shady secret courts’ or even shadier ‘professionals’, the reality is that for decisions to be made on behalf of people, all those involved including family members and professionals where necessary, should decide together what is in someone’s best interest on the basis of previous wishes where they are not able to explain. The legislation and code of practice sets out, what was lacking before, in terms of expectations (nay, demands) of involvement and the responsibilities for decisions about capacity to be made by the most ‘appropriate person’.

Criticisms come, of the Mental Capacity Act (2005) through the Deprivation of Liberty Safeguards. I have written before about them here as I’ve been involved in making decisions and carrying out assessments. There is no doubt that the system in place is flawed. We identified some of the flaws when we did the training before the provisions came into force. Subsequent case law has not always been helpful. In the light of the CQC report published this week about the use of Deprivation of Liberty Safeguards, I thought it would be useful to reflect on some of my personal experiences of using them and observing others using (or not using them) rather than look through the report which others do far better than I would be able to.

The Deprivation of Liberty Safeguards (DoLS) were intended to provide a level of protection to people who lacked capacity to make decision about care and treatment either in hospitals or care homes, regarding situations when they were being deprived of their liberty and therefore had no recourse to any appeal process – unlike, for example, people who are detained under the Mental Health Act (1983) who have access to a tribunal system. Deprivation of Liberty Safeguards have their own Code of Practice (which is useful but got out of date rapidly in the face of changing case law). There are particular processes required for an authorisation to be made (by the supervisory body – which is the local authority) and it is based on assessments made by two people. One is a Best Interests Assessor (which was the role I took) and the other is the Mental Health Assessor (who  is a doctor with special training although I wouldn’t lay too much confidence in the ‘special training’ as I’ve known it to be as little as a day). Having attended some joint training with Mental Health Assessors, I have to say, I wasn’t inspired with a great deal of confidence about some of the understanding of the processes but perhaps that’s changed in the year since I’ve practiced.

Problems with DoLS

One of the main problems I see with DoLS is that people are told ‘They are complicated’ and that seems to act as a disincentive for managing authorities (the care homes or the hospitals who may be depriving people of their liberty) to actually think about them too much.  Or staff who work in these areas think they are ‘someone elses’ business. I’ve come across that before – hospitals who have one DoLS/MCA lead who is seen as the only person who needs to know about them. I would say that’s possibly not the most helpful way to think about it. As long as people think they are complicated, they will ignore them in the face of busy work environments.

I try to tell people, when and if they are interested, that everyone doesn’t need to know the intricacies of whether a particular practice is a deprivation or a restriction before making a referral – it is the job of the Best Interests Assessor to make that call as a part of the Best Interests Assessment and it is something that will depend, very much, on the individual circumstances of an individual person. What is important though, is that staff can identify some key issues that may come up that could trigger a referral at the very least. If staff are to be provided with such a list by their employers (which I’ve seen) then at least those employers should ensure that they update this checklist frequently in line with case law and they emphasise that it is not exhaustive. As frontline practitioners, we talk about hating check box lists. This is exactly an area where a check box list is supremely unhelpful unless it is changed frequently and concerns strong provisos – allowing some professional judgement.

The name is a bar too, of course. Deprivation of Liberty Safeguards – people seem to concentrate on the deprivation part and ignore the safeguards bit so they are seen negatively. Actually, it’s a way of protecting the person whose liberty is being deprived and without the safeguards they would not have the same level of protection. When I see the Mail/Express headlines like this we can see the danger of misinterpretation of the language. I don’t believe for a  moment we have ‘more people subject to chemical cosh’ or ‘older people being tied up’ or ‘people denied from seeing their relatives’ than we did 10/20 years ago. We just have more understanding of when it’s happening and some of those people have had specific assessments to determine whether it’s in their best interests – where before it would just be a decision made without those safeguards.  The language is troubling to tabloid news journalists who don’t look beyond the ‘deprivation’ word. Mind, it’s not just tabloid journalists – it’s care home managers who see it as a ‘bad thing’ if they make an application. Personally, I’d be delighted to see more referrals drip through as it means that there’s a possibility that some people will have access to the protections.

Some people want a list of things that are a ‘deprivation’ and what isn’t. The lack of such a list leads to an ‘it’s complicated’ charge. The reason there isn’t a list is what may be a deprivation of liberty to me, might not be to you. I’m generally quite a solitary person and am quite happy spending a day pottering around at home, doing not very much. My partner needs to go to the supermarket every day to get fresh fruit and vegetables. He will not buy fruit or veg a day in advance and doesn’t believe in weekly shopping (this is sometimes an issue between us!). Not allowing him out of the home (if we both lived in a care home) would have a far greater impact on his liberty than it would on mine because of our usual habitual behaviours. Whereas keeping me away from a television for more than a day would have a big impact on me but wouldn’t bother him in the slightest. Silly examples but it’s the reason we can’t make blanket decisions or say ‘locked doors = DoLS application”.

The interface between DoLS and the Mental Health Act (1983) is a particular bone of contention – in my experience. Having worked in older adults’ mental health services, I saw many situations on older adults inpatient wards where, if someone wasn’t battering down the door and actively attempting to leave at any opportunity, they were deemed to ‘comply’ with the detention without the need of any of those awkward legal-type powers. Unfortunately I haven’t seen a great deal of progress in this and some psychiatrists seem to dislike using the Mental Health Act (1983) to detain people who lack the capacity to consent to treatment/admission. DoLS does allow, potentially, another avenue although case law has been quite fluid in terms of where we stand. What I’ve seen FAR more of is a lack of use of either Mental Health Act or the Mental Capacity Act and somehow thinking that ‘informal admission’ is the ‘right’ answer if someone isn’t battering the door. Sometimes opposition to a detention can take other forms – increased levels of distress, lack of engagement with staff/family but I fear there is little flexibility in interpreting the ‘objecting’ patient when people are not actively saying ‘I want to go home’ every second – and even sometimes when they are ‘Oh, they are just like that’ or ‘that’s the dementia talking’.  The thing is, this needs to be challenged and sometimes hierarchies within hospital systems don’t allow it. This is why I think the BIA role is crucial and that hospitals, in particular, should engage with genuine understanding of DoLS and what their actual purpose is rather than assuming they know.

I have a slight problem with the assumption that the Mental Capacity Act is ‘less restrictive’ than the Mental Health Act. To the person who lacks capacity to consent to treatment or a hospital admission – they are being kept in a place they don’t want to be and treated against their will regardless what legal framework (or none) they are subject to. The Mental Health Act offers more and better appeals processes (and more automatic checks – and of course, although this shouldn’t be an issue, the right to s117 aftercare) than the Mental Capacity Act so saying that DoLS offers a least restrictive alternative, is, I think, (whether judges agree with me or not) a false premise. One thing is for sure, there needs to be SOME legal framework and having none, certainly isn’t the least restrictive alternative.

What would work better?

I think there needs to be a streamlining of the DoLS process – perhaps more along the lines of the Mental Health Act which is better developed – certainly in terms of rights to advocacy for all and a similar type tribunal system. There needs to be much better understanding of the processes and what RIGHTS mean to people who lack capacity to make decisions. Local authorities need to provide better information and access to advocates all the way through the process – they are supposed to but it sometimes gets lost down the line.

CQC need to actually inspect and enforce when organisations are not telling them and they need to understand the processes better to judge organisations against what they should be doing.

Changing the name would help too, something about protecting rights not depriving of liberty – perhaps that’s a bit flippant but language is important.

Everyone within organisations needs a better understanding of them from care workers/health care assistants to consultant psychiatrists who seem to regard them as an optional extra if they can’t be bothered to use the Mental Health Act because ‘they don’t do that’ when people lack the capacity object in the only way that they can recognise.

These aren’t new now and they aren’t optional but too many organisations seem to write them off as ‘too complicated’. Too many supervisory bodies seem to ‘pre-screen’ referrals. There are too many discrepancies nationally to think that they are anywhere close to being embedded in our health and social care systems (despite CQC’s positivity on this).

We need access to clear information including current case law in a central space – perhaps the Department of Health can offer up some space – in easy to read language which explains rather than complicates.

I’m sure there’s far more than needs to be done. I don’t have all the answers – not by any means, but I do know we all, who have any interest in this sector, need to do a whole lot better and understand what the current law is. These safeguards aren’t an optional extra and just nice for people to understand a bit better. They are the current law and the current law is failing for as long as no one is actually checking or caring whether they are used properly or not.

2 thoughts on “On Capacity and Deprivation of Liberty

  1. Have been keeping a mental note to get back to you on this for ages and now have a chance.

    I’m a residential care manager (older people) and prior to this, spent a few years with intermediate care and the EDT / adult safeguarding team. My training and general day to day work didn’t really cover MCA and DOLS at length but I did have some insight and understanding. Even still, I was quite looking forward to the course booked for staff last week and keen to see how it’s working on a practical basis.

    In fairness, trainers might be limited in the examples and case studies they cover or might have to make the best of what materials and resources they have to play with – I don’t know – but the course and everything about it was essentially, useless.

    Worst still were some of the views, opinions and ideas which the trainer personally brought to the room. I was disappointed, amazed, horrified and deflated like a balloon in the space of an hour. Then I was fascinated as she spewed out a river of nonsense such as –

    “Once upon a time, protecting and doing what’s right for people was so much easier and straight forward. We ALL want the best for patients / residents and to me – that’s black and white. We KNOW what’s best. Now, it’s just pointless paperwork and we have to get a multitude of people involved like social services, CQC…” (On “Unnecessary Bureaucracy”)

    “Nowadays this is frowned on but for care homes, you’re actually covered by law to administer covertly if the GP or Pharmacist signs the MAR sheet that includes some reference or instruction that it can be given / mixed in food” (On “Covert Administration of Meds”)

    “He lost his appeal because the judges didn’t believe he had mental capacity and therefore said they couldn’t allow him the right to die as he wanted. Just because of the physical disability being so severe they assumed he didn’t have the mental ability to make a decision about his best interests… Now isn’t that terrible?” (On the Tony Nicklinson case)

    So the systems, policies and safeguards in place are actually pointless and we should be able to dope up residents without having to jump through hoops and whatnot. *Hints and tips on how we might get away with this included.

    Oh yeah – and those nasty Supreme Court justices were just ignorant about Tony Nicklinson’s condition and wrongly assumed he didn’t have mental capacity so wouldn’t allow him the right to die.

    I shit you not. This went on for three hours. 3 HOURS.

  2. The only time I really come into contact with DoLs is when we have patients with NG tubes at risk of pulling them out. It seems many doctors are unaware of DoLs when they suggest bridles and mittens. In another area, the “it’s just the Dementia speaking” subject rang many bells for me. I always report anything a dementia patient says if they bring up concerns that trigger the possibility of a safe guarding issue. We really don’t know where capacity ends and dementia starts so for me, if in doubt, report to someone senior where they are obliged to make enquiries.

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