The CQC’s latest report, Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2012-13, latest report provides a fascinating insight into the operation of the Safeguards. Aside from the important statistical information, the CQC undertook surveys with some local authority supervisory bodies and IMCA services which provide a useful view from the coalface. Our summary cannot do the report justice but amongst the CQC’s key findings were:
- There was a 4% increase in the number of applications compared to the previous year (11,393 to 11,887);
- Number of authorisations increased (6339 to 6546);
- Unexplained regional differences in their rate of use;
- Some people cannot properly exercise their legal rights and cannot challenge their detention;
- Level of awareness and understanding on the part of managing authorities is still low but knowledge of the system amongst local authorities generally appears to be good;
- Around two-thirds of those managing authorities requesting authorisations are failing to notify the CQC of their DoLS applications and their outcomes;
- 88 unlawful deprivations of liberty were identified (compared to 93 the year before).
The fact that the majority of DoLS activity is not being brought to the attention of the CQC, contrary to regulation 18 of the Health and Social Care Act 2008, is very worrying indeed. Unnoticed liberty deprivations of the most vulnerable constitutes a serious failure. It leaves the most vulnerable without the protective scrutiny of the national monitoring body and risks placing the UK in breach of its international obligations, given that the CQC is part of the UK’s National Preventive Mechanism under the UN Optional Protocol to the Convention against Torture.
Another concerning feature is the finding that 13.4% of the 7-day urgent authorisations were extended by up to another 7 days. This is a high proportion, given that such extensions are only permitted for “exceptional reasons” which do not include staffing shortages: see DoLS Code of Practice para 6.24. As the CQC remarks:
“For the individuals involved each extension means that they were detained for more than seven days without the full protection of the assessment and authorisation processes of the Deprivation of Liberty Safeguards. This is a significant proportion of the total number of applications over the year and could potentially cause confusion or distress for the individuals involved, as well as any families or close friends.”
Throughout the report are examples of good practice, some of which we thought it might be useful to collate:
- The relevant person and their representatives (beyond initial contact)
- Full, pro-active involvement by the assessors of relatives in the assessment of the person’s application, and in deciding what is in the person’s best interests.
- Family carers consultation event to get feedback on their experience of the Deprivation of Liberty Safeguards, and discover what further information/ support they needed or would have found of benefit.
- Accessible, easy read information being made available to the person and their representative to explain the Deprivation of Liberty Safeguards system.
- Additional funding arranged for one-to-one support for someone to enable contact with friends and outings into the community, rather than physical restraint, after deprivation of liberty was identified but not authorised.
- Successful use of conditions on authorisations, after discussion with relatives, such as making sure the person is taken out regularly.
- IMCA re-contacted the representative half way through the authorisation period and a month before the end of the authorisation. This was to remind them that, if they needed support, they could ask for a re-referral to be made by the local authority.
- Regular meetings between local authorities (commissioners and professionals) and IMCAs to explore any practice issues.
- Local authority assisted a self-funder to challenge her authorisation.
- The DoLS Process
- For supervisory bodies to carry out a review, particularly for longer periods of authorisation, if they think it might be necessary and to be assured that it is easy for the detained resident (or their representative) to request a review whenever they want one.
- A quality assurance team developed standards to assess whether the MCA principles are embedded in care planning.
- A regional Deprivation of Liberty Safeguards leads’ network where information on numbers and types of referrals are discussed, together with discussion of difficult or novel situations.
- Best interest assessor forums, encouraging BIAs to attend by managing workloads.
- Having agreements with neighbouring local authorities to use BIAs from elsewhere, for example, if the person was in a local authority managed home, such arrangement would be essential as a BIA employed by the local authority is forbidden to carry out assessments if that local authority is also the service provider.
- Having agreements with neighbouring local authorities so they can call on BIAs from elsewhere if there is an unexpected surge of requests accompanied by urgent authorisations.
- Quarterly reports to MCA/Deprivation of Liberty Safeguards committees or multi- agency local networks, to oversee and analyse activity, numbers and deadlines.
- Independent reviews of Deprivation of Liberty Safeguards activity.
- DoLS Signatories
- Applying lessons learned from the Steven Neary case – making sure the authoriser is not a commissioner responsible for the service where the person is living.
- Making sure the authoriser is not also responsible for agreeing funding for the person.
- Support for managing authorities
- MCA helplines and clear web-based information.
- Regular e-bulletins.
- Provider forums where the MCA and the Deprivation of Liberty Safeguards are regularly discussed.
- Focused training on care homes and hospitals where monitoring data shows low activity.
- Commissioning contracts which include knowledge requirements around the MCA and the Deprivation of Liberty Safeguards.
- Audits to check hospital staff knowledge of the MCA, including the Deprivation of Liberty Safeguards, with follow up workplace-based information provided.
- ‘Train the trainer’ programmes for hospital and care home staff so MCA and Deprivation of Liberty Safeguards training can be run in- house.
- Placing the Deprivation of Liberty Safeguards clearly in terms of a personalisation and human rights context when training, to enable them to be viewed more positively.
So useful are these practice points, in fact, that we have taken the liberty of attaching them as a separate page to this newsletter so that they can be pinned to the wall of the appropriate offices.