Deprivation of Liberty Safeguards

Page last updated: 21 October 2022

This is the 2020/21 edition of State of Care

The Deprivation of Liberty Safeguards (DoLS) are an important part of the Mental Capacity Act 2005 (MCA) and work within the core MCA principles.

They aim to safeguard many of the most vulnerable people using health and social care services, and ensure that a decision to deprive a person of their liberty is subject to a proper legal process, including a right of appeal.

DoLS are due to be replaced by the Liberty Protection Safeguards in 2022.

Any decision made for a person lacking the relevant mental capacity should be made in accordance with the key principles of the MCA – in line with the best interests process and less restrictive principle – and strike the right balance between a person’s wishes and feelings, and their safety.

We have previously highlighted some continuing concerns around DoLS including:

variation in knowledge and understanding of DoLS legislation, and in the quality of training
poor quality mental capacity assessments and best interest decision-making
delays and backlogs at a local authority level and providers not effectively escalating applications when needed.

Over the past year, we have continued to monitor how services have managed DoLS as the pandemic has evolved. Many of the issues we have reported on previously have continued and/or have been exacerbated in the context of the pandemic and associated pressures on the system.

We continued to monitor notifications relating to the outcome of a DoLS application. Providers are required to notify CQC without delay when the outcome of an application for a DoLS authorisation is known, including when authorisation has not been granted.

Numbers of notifications from adult social care services and hospitals reached their lowest point during the early months of the pandemic (figure 10). In adult social care, we saw a sharp fall in the numbers of notifications received between March and April 2020. In hospitals, numbers were lowest in May 2020.

It is understandable that during the pandemic, particularly at the beginning, attention shifted onto managing COVID-19. Providers faced a significant challenge in balancing adhering to government guidelines on infection prevention and control and managing the risk presented by COVID-19, with ensuring that they met any existing individual’s DoLS conditions or new DoLS needed.

However, the number of DoLS notifications from hospitals had been dropping steadily since before COVID-19.

Notifications from both sectors have risen since the lowest figures. By March 2021, numbers for adult social care services had increased by 6% compared with April 2019. The trend in hospitals has been a gradual rise (since May 2020), although the figure in March 2021 was still 30% less than in April 2019.

NHS Digital official statistics on DoLS in 2020/21 also reflect some fluctuation in activity through the year, with applications received by local authorities reaching their lowest point in April 2020 (17,480). By comparison, lowest levels for applications completed by local authorities were reached in August 2020 (17,775).

However, England-level annual totals suggest that providers and local authorities were largely able to maintain overall levels of DoLS activity compared with 2019/20. There was a small drop of 3% in the numbers of applications received by local authorities in 2020/21 compared with 2019/20. The numbers of applications completed by local authorities rose by just over 1%. NHS Digital also reports that the number of cases not completed (in other words, the backlog) also fell for the second consecutive year since reporting began in 2015/16 to an estimated 119,740.

There was some regional variation; West Midlands and the East of England saw significant increases in applications completed compared with the previous year (16% and 15% respectively).

However, the small increase (1%) in total number of applications completed during 2020/21 remains significantly below the 24% average increase seen each year over the previous four years (2015/16 to 2019/20) (figure 11). The 3% fall in the number of applications received by local authorities in 2020/21 also counters the average growth rate of 8% each year seen between 2015/16 and 2019/20. Delays in authorisations may mean that individuals are deprived of their liberty longer than necessary, or without theappropriate legal authority and safeguards in place.

Ensuring that the less restrictive principle is being applied in line with the MCA while balancing COVID-19 restrictions continued to be a challenge for providers. In some services, we saw good examples of providers thinking creatively to support social distancing and isolation in the least restrictive way possible - for example, allowing multiple individuals who had tested positive to socialise in one area of the care home. Our Expert Advisory Group also shared examples of homes using mirrors and windows to keep people in visual contact, to counter loneliness, while being kept physically separate.

However, in some cases, we were concerned that providers’ focus shifted away from DoLS towards managing COVID-19 restrictions. When conditions on DoLS that are there to support the person, such as being able to go out, are not followed, this has a significant impact on the person. For example, we have had concerns around people being isolated and withdrawn, as well as increases in distressed behaviour, poor mental wellbeing, and breakdowns in relationships with family members and loved ones. The impact can be especially profound for people who have limited capacity to understand why these restrictions were in place. Restrictions on visitors for people receiving end of life care were also devastating both for the individual and their loved ones.

Our inspectors have had concerns that social distancing and other restrictions have made it more difficult to meaningfully implement the DoLS process in a way that supported people’s human rights. In particular, they have had concerns around a lack of visits from Relevant Person’s Representatives (RPRs), families, and other professionals and the move to online assessments.

While virtual best interests assessments worked for some people, others were unable or struggled to use technology to participate. Also, if families, professionals and other representatives had not been able to visit a person for some time, it meant that staff at a service may be the only people able to give a truly up-to-date picture of a person’s life.

For example, one service had completed a mental capacity assessment and believed the person lacked capacity for a particular decision relevant to DoLS. The person was Italian and had reverted back to their first language, and no interpreter was available. While the virtual assessment was being completed the person just answered yes to all questions and the assessor was unable to pick up on the non-verbal cues that showed the person did not understand. This meant a DoLS authorisation was refused in the first instance and the service had to reapply.

While the Department for Health and Social Care has produced guidance around this area, we continue to be concerned that lack of understanding about DoLS is having an impact on providers’ confidence about whether restrictions introduced in response to the pandemic amounted to a deprivation of liberty or not.

Better training is needed to improve staff knowledge and understanding of DoLS and the MCA, and their importance in protecting people’s human rights. As we highlighted in Protect, respect, connect, our review of ‘do not attempt cardiopulmonary resuscitation’ decisions during the pandemic, a lack of understanding of the MCA can lead to issues such as people being assessed as having capacity for a relevant decision when they no longer do. It can also prevent health and care workers, particularly those in care homes, from being able to identify and raise concerns. This means that people may not be protected from unsafe care or treatment, and may be at risk of having their human rights breached.

Medicines safety in NHS trusts

In March 2021 we published our look at the safe and effective use of medicines at NHS trusts, considering NHS hospital pharmacy services during the pandemic. This report came from our routine engagement with hospitals’ chief pharmacists.

We also wanted to know about medicines safety learning, and 95% of NHS trusts took part in a separate review where we focused on the role of the medication safety officer (MSO), which all trusts are required to have.

All the trusts we spoke with had a named MSO. We heard that the main challenge for MSOs is that their responsibilities are often added to their current role.

MSOs told us they help to make the use of medicines safer – they respond to medicines safety alerts and improve reporting of medicines incidents so that lessons can be learned, and they ensure actions from learning can be shared with frontline staff. They also told us that the change from paper-based to electronic systems will lead to a greater ability to oversee medicines use and safety.

Medicines governance

We heard that most MSOs were listened to and were able to escalate medicines concerns effectively through trust governance systems. Where support for the role from trust leaders was given, this helped to develop a strong culture around medicines safety.

We also heard that, in some providers, the engagement of other professions in medicines governance committees remained a challenge, and that unclear governance structures meant that information about medicines safety did not flow effectively between committees. This meant there was limited executive oversight of certain medicines risks.

Incident reporting and learning

All MSOs described how they monitored the reporting systems for medicines incidents and near misses. We found that a multidisciplinary team approach helped with engagement of frontline staff across professions and promoted sustained, positive change. MSOs said that where they felt there was a good trust-wide medicines safety culture, this supported people to report and learn from incidents.

Guidance and support

We found that guidance and support for MSOs was available, including national and local professional support networks. We also heard many good examples of collaborative work and sharing of learning and experiences. But we heard that a lack of dedicated capacity and funding in different areas led to variation in delivery across the country. Some MSOs described a reactive service that responded to medicines incidents and alerts at the time, rather than a proactive medicines safety agenda.

Collaborating for better care

Maternity improvements are too slow