The impact of COVID-19 on the use of Deprivation of Liberty Safeguards

Introduction to 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 their human rights and provide the care they need.

In our State of Care report last year, we said that people were waiting too long to have their DoLS applications processed, which risked infringing their human rights. We also highlighted that, while our inspections showed evidence of increasing awareness around DoLS, providers’ lack of understanding and confusion around the legislation remained a primary reason for poor practice.

The Liberty Protection Safeguards, which are intended to provide a simpler process that will better support the safeguards that people need, were set to replace DoLS from October 2020. However, because of the current pressures the pandemic is putting on the health and social care sector, this is now delayed.

Where we saw better DoLS practice previously, we found examples of clear leadership and training for staff in providers, better involvement of friends and family in the DoLS process, and good partnership working between providers and local authorities.

What’s the current picture?

All providers must notify CQC about the outcome of an application to deprive a person of their liberty. We have continued to monitor notifications during the COVID-19 pandemic and seen a sharp fall in the number of notifications between March and May compared with the same period in 2019.

Since the start of lockdown, we have seen notifications from adult social care services drop by almost a third (31%), and in hospitals by almost two-thirds (65%).

The decrease has varied across the regions. In adult social care, London saw the largest percentage change with a 37% drop, followed by a 35% reduction in the East of England. For hospitals, the South East saw the largest percentage reduction of 82%, followed by 71% in London.

The challenges faced by providers

In line with government guidelines for COVID-19, adult social care providers and hospitals have introduced new restrictions to enable people to be isolated and/or introduce social distancing. This may include restricting access in and out of buildings and implementing enhanced infection control.

Providers have had to introduce certain restrictions into an already complex and confusing picture, with a potential lack of understanding about DoLS that might affect confidence about whether such restrictions amount to a deprivation of liberty or not. To help providers, in April 2020 the Department of Health and Social Care introduced specific guidance on looking after people who lack mental capacity during the pandemic. This explained that during the pandemic, in most cases, changes to a person’s care or treatment would not constitute a new deprivation of liberty, and a DoLS authorisation would not be required.

However, our inspectors have seen that, with providers increasingly looking towards the introduction of the Liberty Protection Safeguards (LPS), providers’ focus on DoLS has waned and training in some areas has stagnated. Poor understanding of DoLS has remained a fundamental issue. This together with the delays and uncertainty over the progress of LPS may mean there is an increasing risk of people being deprived of their liberty without the proper authorisation.

There is an additional challenge for providers in balancing introducing restrictions to keep people safe from COVID-19, with ensuring that they are applying the least restrictive principle in line with the Mental Capacity Act.Some providers are actively mitigating the impact of COVID-19 restrictions, aware that some people with complex conditions, such as dementia, are particularly at risk of isolation. This includes, for example:

• buying screens and encouraging people who use services to video call their families
• introducing "relay walks", where services stagger access to communal areas of the home – the aim being to encourage mobility and allow people to spend more time outside of their room.

Section 5: Protecting people's rights under the Mental Health Act