Deprivation of Liberty Safeguards (DoLS) – a chance to fix a broken system?

Gary Beckwith photographed for Age UK, 51 Bristow Road, Wallington, Surrey, CR0 4QQBlog written by Alison Trew, Public Affairs Officer, Age UK.

The Mental Capacity (amendment) Bill will reach committee stage in the House of Lords next week. This Bill, which focuses on the Deprivation of Liberty Safeguards (DoLS), will have an impact on one of the most profound of our human rights, the right to liberty.

It might seem like a complicated system to understand, but at the heart of the bill is getting the right care and treatment for vulnerable people.

It is of particular significance to older people, as DoLS are most often used in relation to people receiving care. There is now a backlog of over 100,000 people waiting for their DoLS assessments to take place, many who may be unlawfully having their freedom restricted and receiving inappropriate care.

The Joint Committee on Human Rights, amongst others, has stated that the current DoLS system is broken and that urgent action is needed. This Bill is an opportunity to fix it.

It is important that it is fully scrutinised, and that the right level of resourcing is attached to its implementation.

Age UK has identified four areas of the Bill that require a high level of scrutiny and relating to these four areas, we believe the following themes should be debated in the House of Lords next week:

What are the roles, responsibilities, and expectations placed on care home managers?

Under this amendment, care home managers will now be required to undertake DoLS assessments. Whilst some managers will possess a significant amount of knowledge of procedures, the fact that they will now be required to carry out an assessment of whether someone’s liberty is being lawfully deprived and is in the person’s best interests requires a much deeper level of training.

In relation to self-funders in care homes, we believe there is a need for an independent external assessor before the deprivation of liberty can be enacted.

For self-funders in care homes, an independent external assessor must be used where an assessor has a financial interest in the decision to deprive someone of liberty. A pre-authorised review by an Approved Mental Capacity Practitioner (AMCP) will ensure this happens. Without such a requirement there is a significant conflict of interest for the care home manager.

Where cases are complex or disputed it is possible for an independent reviewer to refer the issue directly to a court.

To ensure that the rights of the cared for person are at the heart of the bill, it is necessary to provide an automatic referral pathway to an ACMP in cases of dispute, objection or disagreement that cannot be easily resolved.

Establishing a definition of “Deprivation of Liberty”.

A definition of ‘deprivation of liberty’ must be included in the Bill. A definition is essential to provide practitioners, families and the cared for person with the best opportunity to understand whether care arrangements amount to a deprivation of liberty.

Whilst the bill has many positive features, the current crisis in the social care system will restrict how successfully these four areas in the bill are implemented. For DoLS to work for the most vulnerable in our society, a fully funded and integrated health and social care system is essential. Without support and funding for our local authorities and the right training and resources for care home managers and practitioners, many older people in our society will continue to have their rights restricted and not receive the appropriate care.

With 100,000 people waiting for their DoLS assessments to take place, urgent action is needed to put the best interests of patients first and end the crisis in social care.

We are calling on Parliamentarians to take this opportunity to make the system fit for purpose.

Read Age UK’s briefing.

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