Mental Health Alliance issues

Important safeguards designed to protect vulnerable people from being deprived of their liberty inappropriately are not being properly implemented, according to a new report released today by the Mental Health Alliance. Deprivation of Liberty Safeguards (DoLS) were introduced to ensure people who lack mental capacity are not deprived of their liberty unnecessarily by those responsible for their care, but widespread misunderstanding and confusion about the legislation has led to the safeguards being dramatically underused, prompting concerns for the human rights of people confined in hospitals and care homes.

DoLS were introduced in April 2009 as part of the Mental Capacity Act 2005 and require care homes or hospitals to apply for authorisation to deprive someone of their liberty if they believe it is in the patients’ best interests. However, applications for authorisation have trickled in at only a third of the governments predicted rate, with huge disparities in use between different local authorities and primary care trusts, indicating that the measures can not be properly functioning.

The Mental Health Alliance report Deprivation of Liberty Safeguards: an initial review of implementation examined a wide range of evidence and found a significant shortfall in levels of understanding around the measures and standards of their application. A large part of this is rooted in the absence of a legal definition of what constitutes ‘deprivation of liberty’ which can be referred to by staff, assessors or representatives. The Alliance is calling for an urgent investigation into why so few applications have been made, and the cause of the wide geographical variations. It is also advocating the release of updated guidance on DoLS which is more accessible to staff in care homes and hospitals, and recommends refresher training for assessors, who need to recognise that this is a legal not bureaucratic process.

Another point of concern highlighted by the review is the low uptake of Independent Mental Capacity Advocates (IMCAs) who can provide advice and guidance for relatives representing the patient, who may themselves be elderly or disabled and struggle to make sense of this complicated field. The Alliance understands that IMCAs are being appointed in only a few per cent of cases, and there is a fear that representatives are not being made aware of the support they are entitled to in order to help them navigate  this otherwise impenetrable system.

Recommendations made by the Mental Health Aliiance in the report include:

• The Government needs to look at why so few applications have been made compared to levels expected and why there are such disparities between supervisory bodies and geographical areas.
• The Government should issue revised guidance on the meaning of deprivation of liberty which is comprehensible to care providers, and especially to care home staff.
• Refresher training for assessors should focus on improving their knowledge of the legal requirements and should emphasise the importance of full compliance with them.
• Where a friend or family member is selected as representative, the appointment of a section 39D IMCA should be automatic unless the representative positively declines it.

Roger Hargreaves, the Mental Health Alliance’s lead on DoLS and author of the review, said:

DoLS are an important measure and their introduction has lead to positive benefits for many patients and residents who are now having their care reviewed. While it is still early days for these safeguards, we have concerns about their implementation and the extent to which DoLS are being understood and used by care staff, and also about how much support and advice is being made available to the representatives of individuals affected by DoLS.

The legislation and the procedures need to be made more user friendly, which would go a long way in improving their uptake and effectiveness, and ensure the protection of those they were introduced to protect. We would urge the Government to take up these recommendations and for all bodies concerned to work together to enable DoLS to fulfil their purpose of protecting the rights of some of the most vulnerable people in our society.

• Deprivation of Liberty Safeguards: an initial review of implementation is available on the Mental Health Alliance’s website.

• The Mental Health Alliance is a coalition of 75 organisations working together to secure a better mental health legislation. It is the broadest coalition in the mental health world. We believe that the Government must ensure that its proposals for reform of mental health legislation are both fair and workable.