New research spotlights DoLS in the care sector

Age UK have published a recent report, A hidden crisis: Older people and deprivation of liberty in care homes, which found that the system for protecting the fundamental right to liberty of older people with diminished capacity is in “urgent” need of reform.

The report found that the backlog of Deprivation of Liberty Safeguards (DoLS) applications waiting for authorisation exceeds 100,000 – “so big it will probably never be eradicated”. The charity found that almost 50,000 older people have died without proper legal safeguards in place.

DoLs is a process which ensures depriving an individual, who lacks or who is perceived to lack capacity, of their liberty is in the person’s best interests, is necessary to prevent harm to them, and is a proportionate response to the likelihood and seriousness of that harm. It is a process which is to be followed by the authority responsible for the individual’s care.

The lack of DoLS for an individual of whom requires such authorisation is an infringement upon their liberty, a fundamental aspect of our human rights. DoLs is a “crucial” safeguard for older people and others who lack capacity. In many instances, an individual such as those lacking capacity and constrained to a care home, will be deprived of their liberty in goodwill and ultimately to protect their wellbeing and safety. However, this may not necessarily be the case for every individual, which carries a risk of inappropriately constraining an individual’s freedom.

The DoLS framework was first introduced in 2009 and has received significant scrutiny from healthcare professionals implementing DoLS and the House of Lords Select Committee in its 2014 report. The process is regarded as overly complex and bureaucratic, adding to the backlog of applications. As such, the government has committed to replace DoLS with a new framework known as the Liberty Protection Safeguards (LPS), which were intended to improve human rights outcomes for those deprived of their liberty, with the introduction of a simplified authorisation process applying to all settings, not just care homes and hospitals. The process would be more streamlined than DoLS and embedded into existing care planning.

However, the government announced in April 2023 the implementation of LPS would be delayed “beyond the life” of the current Parliament. Since then, the government has not announced any further support for DoLS or funding to tackle the backlog.

Age UK make 13 recommendations to government, including calling for a fully funded LPS system, reform and investment in social care and ensuring that care homes have sufficient numbers of staff to avoid any unnecessary restrictive practices due to understaffing.

It is unfortunate that LPS continues to be kicked into the long grass, with no certainty of when it will come into force. It does mean that those required to implement DoLS in health and social care settings must ensure they have the required resources, staffing and understanding of the principles of the Mental Capacity Act and sufficient training to guarantee good practice.

Do contact us if your DoLS teams require support with managing your processes and or training – we have an expert and friendly team that can support you and your teams.

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