Deprivation of Liberty Safeguards

The Deprivation of Liberty Safeguards (DoLS) legislation is in place to protect people in care homes and hospitals who may need to be deprived of their liberty. The safeguards help to ensure that the correct process is used to protect people’s human rights if they lack the mental capacity to consent to the arrangements for the care they need, are under continuous supervision and control, and are not free to leave.

As a part of the Mental Capacity Act 2005 (MCA), the safeguards help to ensure that some of the most vulnerable people using services are protected, while ensuring that a decision to deprive someone of their liberty can only be made through a legal process. Decisions made for a person lacking the relevant capacity by using the MCA should always use the best interests decision-making processes, consider the less restrictive option, and carefully balance respect for the person’s wishes and feelings with the need to keep them safe.

In last year’s State of Care report, we highlighted our concerns about the level of services’ awareness and understanding of the DoLS legislation, and that this was a primary reason for poor practice.

Research we carried out before the start of the pandemic showed that there had been some improvements since last year. Where improvements had been made, the following were key:

• Safeguarding action was taken where our inspectors raised concerns. Alongside this State of Care report, we are updating on three pieces of work that show there was limited progress in improving access for people.
• Inpatient rehabilitation services: From 2017 to 2019, there had been only a small increase in the number of people receiving inpatient rehabilitation
• Management showed accountability, took ownership of poor practice, and carried out a reassessment of care planning to determine how relevant and appropriate decision making had been.
• In response to previous training concerns, management scheduled in new training or refreshers specifically related to DoLS and the MCA.
• Management were able to show that they had implemented lasting improvements – examples included new systems to track applications, and introducing new or streamlined forms and protocols to ensure compliance.

However, despite years of the legislation being in place, there is still huge variation in understanding and practice, and in the quality of training. We found several possible explanations behind this variation, including the amount of support given to a service from the local authority, and specific geographic arrangements of care providers. We also found that working age services for people with a learning disability in adult social care and hospital settings often had a better understanding of DoLS compared with services for older adults, and staff in these services also had a better understanding of broader mental capacity issues.

For example, staff in hospital-based mental health services for older adults did not always know when DoLS can be applied – assuming it should only be used, for example, if a person was actively trying to leave the service. In fact the main criteria for determining if a deprivation of liberty is occurring is whether the person (assessed as lacking capacity to consent to the arrangements for their care) is under continuous supervision and control; and not free to leave, regardless of whether they are actually trying to do so – the ‘acid test’. The question to be asked is: what would staff do if the person did try to leave?

In other instances, despite DoLS being in place for many years, many providers still did not understand what a good quality mental capacity assessment and best interest decision looks like.

Where we saw examples of good practice in care homes, staff showed a good understanding of the legislation in practice. This included always seeking people’s consent before carrying out their caring duties; supporting people to make decisions to the best of their ability (for example, through non-verbal communication); and when people lacked mental capacity for a certain decision, providing care in line with their best interests.

We found that the type of service sometimes reflected the amount of positive risk taking that staff were prepared to make. In working age learning disability services, it was noted that staff were often more willing to take more positive risks than those in services for older adults. In addition, those staff had access to wider communication methods, tools and systems to help enable and support people to make their own decisions.

We found that training remains an area of concern, with huge variety in its quality. Training did not always consistently provide staff or services with the understanding, level of awareness or practical knowledge to effectively embed learning into practice. There had also been very little innovation in training, with expectations that the training will be outdated with the introduction of the replacement system for DoLS, the Liberty Protection Safeguards.

Where there was good quality training, it was often characterised by a focus on ‘real-life’ and practice-based examples, rather than generic learning modules. Simplifying legal terms, and discussing DoLS in an accessible and relevant way, helped staff to better understand and apply what they had learned for the people they cared for. Collaboration with local authorities and other bodies (such as forums) had also facilitated good training and improved awareness of DoLS in services, but it was apparent that this is not widespread practice.

The relationship between providers and local authorities is critical in the DoLS process. Inspectors told us that providers’ engagement with local authorities was mostly focused on DoLS application status. Set against a context of continued delays and backlogs in under-pressure local authority DoLS teams, there were concerns that providers were not effectively escalating applications when needed. Some people using services were being treated like they had an authorised DoLS where there had only been an application.

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