CQC has been placing an ever increasing focus on the Deprivation of Liberty Safeguards (DoLS) as part of its inspection process ever since the Supreme Court judgement of Cheshire West turned providers’ perceptions of DoLS upside down. It is now over a year since the controversial Cheshire West judgement was made but what progress has been made in the sector?
Prior to the judgement, there was no consensus over how great the restrictions on a service user had to be before DoLS were triggered. The safeguards were not thought to apply if the restrictions on a person’s liberty were considered standard for someone with their level of disability, or if the person or their family did not raise objections. But the judgement rendered these factors irrelevant and has made the threshold more inclusive to protect a wider range of individuals who may be considered as being deprived of their liberty as described below.
Since 19 March 2014, the date that the Supreme Court unanimously ruled that an individual, ‘P’, a profoundly disabled man, was deprived of his liberty by virtue of the complete and effective control exercised over his life by those looking after him, the boundaries have shifted considerably. The ‘new’ test to consider whether a person (without the mental capacity to consent to the arrangements) is being deprived of their liberty, referred to as the ‘acid test’, asks:
- Is the person subject to continuous supervision and control?
- Is the person free to leave?
Neither of the two questions were clearly defined by the Supreme Court. However, it was made clear that when applying question 1 all of the factors are necessary and relevant features to consider include controlling who the person has contact with and the activities they could participate in. No further guidance was given on what amounted to ‘continuous supervision’ but it could be argued that all incapacitated service users in a care home are being continuously supervised.
Relevant factors for question 2 include not being able to leave the placement without supervision and not being free to leave in order to reside somewhere else. It is very likely that both of these factors would apply to incapacitated service users in a care home just by virtue of living in it.
In all cases it has been made clear that the following factors are not relevant to the application of the test:
- The persons compliance or lack of objection;
- The relative normality of the placement (whatever the comparison made); and
- The reason or purpose behind a particular placement.
The statement by Lady Hale, “a gilded cage is still a cage”, further confirms that the fact that a person is comfortable is irrelevant in deciding whether they are deprived of their liberty.
The ambiguity surrounding the acid test has caused a vast amount of confusion for providers who care for people who may require DoLS to be in place. The focus on DoLS has also highlighted weaknesses in the understanding of capacity under the Mental Capacity Act 2005 across the sector as a result.
One of the benefits of DoLS from a service user perspective is their right to challenge any decision to curb their liberty, thus giving them access to a legal mechanism to challenge the restrictions being placed upon them. Therefore it is important that appropriate DoLS are in place to enable service users (or their representatives) to utilise this legal right when needed. If a service user is being deprived of their liberty without a DoLS in place, their rights of challenge are restricted.
However, one year on from the judgement and there remains a distinct lack of understanding. Many providers are still waiting to receive guidance from their respective local authorities on when to make a DoLS application and which type of application to make.
Statistics released over the past year have demonstrated the difficulties that local authorities have faced in processing the dramatic increase in DoLS applications. A lack of funding and resources has resulted in a heavy back log of applications, which many local authorities are still trying to tackle. In October 2014 it was reported that half of DoLS cases were breaching legal timescales for completion following the Cheshire West judgement which had triggered a nine-fold rise in monthly referrals. From viewing the figures, it demonstrates that the average monthly referrals have risen from 713 in 2013-14 to 6,643 in 2014-15. The knock-on effect of this increase is that local authorities remain vulnerable to legal challenges as a result of the timescale breaches.
At Ridouts we have seen increased scrutiny from CQC on providers’ ability to recognise the need for, and make, DoLS applications appropriately. Figures show that only one third of DoLS applications are being notified to CQC as required by Regulation 18 of the Care Quality Commission (Registration) Regulations 2009. Providers must be confident that they can demonstrate applications have been made where necessary and be ready to defend any decisions not to submit applications for individuals. Providers have been criticised by CQC for not submitting DoLS applications where a potential need was identified by the provider but, having spoken to their local authority, they were advised not to submit an application. It seems the inspectors’ stance on this is that providers should go with the highest authority, in this case the Supreme Court, therefore providers should make applications where they think service users meet the criteria and leave it to the local authority to decide how to proceed. At Ridouts, we advise a similar stance. If a provider thinks the criteria may apply to an individual service user then an application should be made. It is then in the hands of the local authority to make an appropriate determination.
Providers should ensure that capacity assessments are reviewed regularly to make sure that they are clear about how many service users lack capacity and to what extent. This can only be achieved properly with appropriate staff training to enable those responsible to understand how to apply the principles of the Mental Capacity Act and to recognise when there may be a potential deprivation of liberty in accordance with the Cheshire West judgement.
Finally, providers should be aware that the Law Commission is due to publish its consultation on DoLS on 8 July this year. The consultation arose following a number of concerns raised around DoLS last year. The consultation considers how deprivation of liberty should be authorised and supervised in hospitals, care homes and community settings, where it is possible that a person’s Article 5 rights (as granted under the European Convention on Human Rights) would otherwise be infringed. This includes considering the legislation underpinning DoLS in its entirety. The result of the consultation is likely to cause further changes to the landscape of DoLS and the final report is expected to be published in 2017.