Tuesday, 14 April 2009


You've perhaps read the Deprivation of Liberty Safeguards, and Code of Practice.

Because I'm a tad neurotic and obsessive 'bout these things, I've read it all rather thoroughly, more than once, and been to various awareness and training days. I feel pretty clued up about it all.

We've a lady in a care home. She has dementia. Her daughter thinks she needs to be in a care home since she can't manage on her own. Heck, she can't even walk on her own. She has no notion of what problems she has, what she can't do, what help she needs. She's evidently an incapacitated adult, within the meaning of the Mental Capacity Act 2005. She's no donee or deputy or advance decision. Management is therefore manifestly straightforward. We have a duty to provide appropriate care, within the Best Interests framework of the MCA 2005.

Care home staff reckon she's best in the care home. Her daughter thinks she's best placed in the care home. Nursing staff reckon she's best placed there. I think it's the only place for her. Best Interest meeting evidences her deficits and what needs to be put in place to address her health and social welfare needs (both optimally and at an acceptable minimum) and it's clear that 24 hour care within a care home's necessary. Everyone agrees.

She keeps saying she wants to go home.

She's no way out. She's not detained under any law or process (such as Guardianship, or SCT) that allows scrutiny or review or challenge. Technically she could go to the Court of Protection for a Declaration to determine if her placement in care's lawful or unlawful but, clearly, she's not in a position to instruct solicitors and progress such a course, even if it was reasonable to do so.

Enter the Deprivation of Liberty Safeguards (DOLS) that came in to force 14 days ago. The PCT or Council considser the issues if this deprivation of liberty is appropriate they issue "authorisation." After 6 assessments and enough paperwork to fell a small rainforest.

I speak with a social worker and we consider DOLS. I'm advised that we can document sufficient details in her care plan to "restrict" rather than "deprive" her of her liberty. Which then, under the MCA 2005, is lawful. Resitriction's fine. We can game on and place her and deliver necessary care under section 5, all's good.

Now, on the one hand this means there's no assessments and meetings and paperwork and taxpayers' expense for a DOLS authorisation. On the other hand, she's in a care home, saying she want to leave and go back to her house, and has no way to effect this.

14 days in and already DOLS ain't evidencing transparent decision making or external scrutiny to protect liberty in any kind of robust fashion, what so ever. Ho hum.


cb said...

It seems to be counter to the point of the law although possibly to the letter. I expect case law to develop pretty quickly around the distinction between restriction and deprivation of liberty as that's where the whole issue is determined really.
I think the DoH have run scared in the lot of the clarifications and have emphasised the exceptionally high barrier.

TT said...

I agree with cb. As the months have progressed the message from the DoH has changed and their last news letter said that DOLS should be only used as a last resort. It would appear that we are being encouraged to use the 'best interests' under MCA more and to greater scope.

I think in a case like this it's about the frequency of her asking to go home. If its constant then we are moving into DOLS territory. If it just when reminded then its a restrictive practice. And depends how the staff are reacting and what intervention they are taking. If she is being constantly distracted then we are in DOLS... Certainly restrictive practice can be used for many things but there needs to be a balance and here is where the subjective DOLS issue lies. I agree there will be case law but it will be very case specific again and only be a further guide.

madmutt said...

From my point of view, the starting point has to be do the restrictions that are needed to protect the relevant person amount to a deprivation of liberty. I agree with TT is the client making a consistent and purposeful attempt to leave. It seems there hasn't been the rush that we expected. I cannot help but wondering if it would have been better to use some form of Guardianship rather than the complex process that is DOLS.

, said...


Does this conflict with the HRA in any way?


madmutt said...

Jones 11th ed (2008) p.71-74 sets out his views on the legality of using Guardianship to deprive someone of their liberty. His argument is compelling. There are significant political pressures being applied to this issue. We have to remember that the HL case found against the Government and they respond with a very complicated piece of law. I am sure this will be tested in the courts before long.