This is the 2022/23 edition of State of Care
Key points
- Ongoing problems with the current system have left many people who are in vulnerable circumstances without legal protection for extended periods.
- In 2022/23, the number of applications to deprive a person of their liberty increased to over 300,000, with only 19% of standard applications completed within the statutory 21-day timeframe.
- Delays in implementing the Liberty Protection Safeguards mean these challenges are likely to continue.
The Deprivation of Liberty Safeguards (DoLS) are an important part of the Mental Capacity Act 2005. Care homes and hospitals should apply them where a person aged 18 or over does not have the mental capacity to consent to their care arrangements, and they need to be deprived of their liberty. In practical terms, this involves continuous supervision and control and means the person is not allowed to leave the place where they are being cared for. DoLS are important human rights safeguards; they aim to ensure that such deprivation of liberty only happens when it is necessary, proportionate and in the person’s best interests.
In our previous State of Care reports, we have highlighted ongoing concerns about how the system operates. The number of applications to deprive a person of their liberty has grown significantly over the last decade. This is mostly the result of a landmark judgement handed down by the Supreme Court in 2014, which clarified and broadened the definition of what constitutes a deprivation of liberty. In the year following the judgement, there were 10 times as many applications. Data from NHS England shows that the number of applications received by local authorities has generally continued to increase since this time.
While the safeguards offered are essential to protect people’s human rights, we remain concerned that the current system is unable to cope with the demand for assessments. Ongoing problems with the process, including delays in processing applications and the varied knowledge of staff about the safeguards, have left many people who are in vulnerable circumstances without legal protection for extended periods. These concerns were echoed by our Expert Advisory Group, with one member describing DoLS as a “broken system”.
Liberty Protection Safeguards
In response to these issues, the Liberty Protection Safeguards (LPS) were developed as part of the Mental Capacity (Amendment) Act 2019. These will replace the Deprivation of Liberty Safeguards by establishing a simpler and more efficient system, aiming to place the person subject to the safeguards at the heart of the decision-making process. The new safeguards will also address various limitations of the previous system:
- The new scheme extends to cover 16 and 17-year-olds.
- They apply to all settings, including those outside of the scope of DoLS, such as supported accommodation and in people’s homes.
- Whereas DoLS apply to a specific location and cannot be transferred, a Liberty Protection Safeguard authorisation could include multiple settings.
- Local authorities will no longer be the only organisations other than a court authorising deprivation of liberty arrangements. NHS trusts and integrated care boards will also be responsible for authorisations, depending on where the person is being treated or cared for.
Liberty Protection Safeguards were originally due to be implemented in October 2020, but were postponed because of the COVID-19 pandemic. In April 2023, the government announced that the implementation would be delayed ‘beyond the life of this Parliament’.
We are concerned about what this means for people being potentially deprived of their liberty unlawfully, for their family and friends, and for providers and local authorities. Disabled people and older people are more likely to require the safeguards offered by DoLS and will therefore be disproportionately affected by the decision to delay LPS.
DoLS applications and waiting times
Providers must formally notify CQC without delay when they know the outcome of an application for a deprivation of liberty, whether it was made to the Court of Protection or under DoLS. This includes both when an authorisation has not been granted or the application has been withdrawn. In 2022/23, we received over 131,000 DoLS notifications (figure 13). This was an 18% increase on the previous year and the number has increased year-on-year since April 2020 in both adult social care and hospital settings.
Figure 13: Deprivation of Liberty Safeguards notifications, April 2020 to March 2023
Source: CQC notifications
Note: this excludes notifications for DoLS applications made to the Court of Protection and notifications from primary medical services.
NHS England collects data from local authorities on the number of DoLS applications they received and completed in the last year, which shows over 300,000 applications were made in 2022/23. This is an 11% increase on the previous year. Although the number of completed applications also increased, the number of incomplete applications rose by 2%, with over 126,000 cases incomplete as at 31 March 2023.
There are 2 types of DoLS authorisations: urgent and standard. Urgent DoLS authorisations can last up to 7 days and are initially granted by the hospital or care home where the person is being cared for, known as the ‘managing authority’. If needed, urgent authorisations can be extended for a further 7 days. This type of authorisation can be used if a person urgently needs to be deprived of their liberty before they have had a full assessment.
In all other circumstances, the managing authority should request a standard authorisation. The relevant local authority then has 21 days to carry out assessments to ensure that the deprivation of liberty is appropriate. Standard authorisations should be reviewed regularly and can last up to 12 months.
Data from NHS England shows that the proportion of requests for urgent DoLS authorisations remained at 56% in 2022/23. Only 19% of standard applications were completed within the 21-day timeframe, which is a slight decrease from last year (20%). Concerningly, the average application took 156 days – over 7 times the statutory timeframe. Over 39,000 people had been waiting for longer than a year for their DoLS application to be completed as at 31 March 2023.
Faced with increasing volumes of applications, local authorities are having to triage assessments. A member of our Expert Advisory Group from a local authority explained having to make “decisions you should never have to when it comes to prioritising one person above another”. A recent survey by the Association of Directors of Adult Social Services (ADASS) found 50% of directors of adult social care services in local authorities lack confidence in meeting their statutory duties relating to DoLS. When asked about all statutory duties, DoLS was identified as the third highest concern.
The Local Government and Social Care Ombudsman acknowledged that many councils are struggling with the number of applications they receive. But they noted some challenges that arise from using prioritisation tools. In March, the Ombudsman upheld a complaint against a local authority for failing to assess DoLS requests in accordance with the statutory timescales set out in the Mental Capacity Act:
Based on the statistics that I have seen, the council is failing to issue DoLS authorisations within the statutory timescales and in many cases the delay is so significant that the person has moved to another care or nursing home or has died without the council’s DoLS authorisation.
We cannot remedy the injustice that may have occurred to those who have died without a DoLS authorisation being assessed, who have had unlawful restrictions to their liberty.
However, there may be many people who, because of the Council’s delays in assessing DoLS requests, have had restrictions placed on them that were not the least restrictive options, had they been properly and promptly assessed.
To tackle these resourcing issues, some local authorities are carrying out remote assessments in cases where there are no concerns. Frequently used during the pandemic, we found that a remote assessment may not always provide enough detail to assess the care environment. A member of our Expert Advisory Group questioned the suitability of this type of assessment, especially for people who have conditions such as advanced dementia, which may affect communication.
Meanwhile, people who are waiting to be assessed may be restricted without the appropriate authorisation in place. This could mean that people are being deprived of their liberty for longer than they should have been, or where less restrictive options could have been identified if they had been assessed. When assessments are delayed, staff face the challenge of keeping people safe while protecting their rights. This is particularly difficult if an urgent DoLS authorisation expires before the person has been assessed for a standard authorisation. Providers are not always clear on how to navigate the difficult legal situation of caring for people who are waiting for an assessment. This situation also affects people’s ability to challenge the deprivation of liberty, as public funding for legal support depends on an authorisation being in place.
The legal framework around deprivation of liberty is particularly complex in certain hospital settings, such as urgent and emergency care. Delays in the wider health and care system mean people are spending longer in an emergency department. A member of our Expert Advisory Group told us they are particularly concerned about the number of people in emergency departments who are waiting for a bed on a ward. These people may lack the mental capacity to consent to their care arrangements but be prevented from leaving because of potential risks to their physical health. If people spend significant periods in an emergency department, staff treating them may be unsure about whether the person is being deprived of their liberty and whether the safeguards apply. This puts people at risk of being unlawfully deprived of their liberty.
Understanding and applying DoLS
Through our monitoring activities, we continue to see that some providers have a limited understanding of the DoLS framework. As a result, we have seen that staff do not always implement the conditions attached to a DoLS authorisation. For example, these conditions could be facilitating access to a place of worship or arranging visits to a relative’s home. Providers have an obligation to comply with any conditions attached to a DoLS authorisation. If this does not happen, the deprivation of liberty may no longer be in the person’s best interests and could be infringing their human rights.
We also continue to see poor recording of mental capacity assessments.
On inspections, poor knowledge and application of the Mental Capacity Act has affected ratings for providers, and in some cases, has led to enforcement action. For example, last September we issued 2 fixed penalty notices to an NHS trust for failures around consent. Our investigation found failures with the trust’s documentation around capacity assessments when treating a man with complex health needs who is also deaf. We found that the trust had decided he lacked capacity without carrying out a sufficient assessment of his mental capacity. Organisations should not assume people lack capacity simply because their communication needs are different. Instead, they should fully explore all options to ensure equality.
In mental health settings, we continue to see a variable understanding of the interface between the Mental Capacity Act, which DoLS are part of, and the Mental Health Act. Where both frameworks could be used, it is not always clear how staff decided that using the DoLS framework would be most appropriate for a particular patient.
These issues are compounded by the lack of certainty around the future of DoLS, leaving providers feeling confused and frustrated. We have observed some providers not delivering adequate training on DoLS, resulting in a lack of understanding among staff.
Members of our Expert Advisory Group told us that some local authorities have held off implementing support to process DoLS applications, instead waiting for the new Liberty Protection Safeguard framework. One local authority reported an increase in applications following the announcement that the new safeguards would be delayed. This was attributed to staff deferring referrals in anticipation:
I think a lot of referrals may not have been made in light of the impending LPS implementation, with providers feeling that ‘LPS will deal with it’; however, now this is not the case, we seem to be having more and more referrals daily.
Impact on people and their carers
We are concerned that poor understanding of the Mental Capacity Act and issues with the management of DoLS are contributing to the overuse of restrictive practices. We have seen restrictions put in place without considering whether less restrictive options are available in line with the Act. This includes installing sensor mats or bed sides and not always viewing these measures as restrictions. We heard from our Expert Advisory Group that some providers in the adult social care sector continue to use stricter measures introduced during the pandemic without recognising them as potential human rights infringements. Although COVID-19 restrictions have been lifted, we found that services do not always proactively encourage care home residents to re-join activities in their local community.
DoLS authorisations and mental capacity assessments should be reviewed regularly to make sure that measures remain necessary and proportionate. However, this does not always happen in a timely way, meaning providers miss opportunities to reduce restrictions and adapt to people’s changing needs. It also means that people’s human rights are put at risk. One Expert Advisory Group member told us that managing authorities often do not have a plan to reduce restrictions. Another reported “an assumption that people subject to DoLS lack capacity in all areas” and therefore are not capable of making smaller decisions for themselves.
When visiting mental health inpatient services for older people, we have seen a considerable number of patients subject to DoLS authorisations that had expired. People subject to DoLS authorisations are not always clear about the detail of their situation. This lack of communication also affects families and carers. Families often do not understand the DoLS system and are not given information about their roles and rights.
Feedback from our Expert Advisory Group indicated how this prevents families from being able to “meaningfully participate in the process”, leaving them “unable to properly represent their relatives”. Further to this, where families are not given advance notice that Best Interests Assessors (BIAs) would be coming to their house or calling them, the lack of information and warning has a significant negative impact.
Becky’s experience highlights the benefits of having a DoLS authorisation in place and the importance of clear communication with carers and relatives:
Becky’s story
Throughout her life, my Nan was an independent woman. When she was 72, she started accepting help, mainly with cooking and cleaning. As the year progressed, her condition deteriorated and she didn’t seem like herself anymore. My sister and I became her carers. We arranged for her to be checked by her GP but we were told she was fine.
Things continued to get worse. She would call in the middle of the night, thinking it was daytime. We had to go round to ensure she ate. One night, the police found her walking in the streets at 3am and she was very disorientated. It was so sad to see her like that.
We spoke to her GP again and a week later, social services visited. That week felt like a long time and the lack of communication made us doubt if anyone would come. She was then assessed by the mental health team. They said my Nan was unfit to stay at home and she was admitted to hospital.
She was given a diagnosis of dementia. My sister and I felt like we had let our Nan down as we could no longer look after her in her own home. However, staff at the hospital advised us on potential care homes and involved us every step of the way. The hospital told us about DoLS. They explained it was about looking after Nan in a way that protects her best interests and we were given a leaflet explaining what the safeguards mean. In my Nan’s case, the DoLS were in place to prevent her from going out unaccompanied and if needed, to restrain her for personal care. A member of staff mentioned that we could challenge DoLS and the leaflet provided details on how to do this. They also tried to explain the reasons for applying for a DoLS authorisation to my Nan. The hospital ran focus groups for families in similar situations, which were very helpful. It was nice to know that we were not alone, and that support was available.
Although I felt less involved with my Nan’s care, I was happy for her to be on a DoLS and felt it made her safer. I was concerned about what might happen when the safeguards expired or when she was waiting for the care home DoLS authorisation, but we did not have to wait long.
Our experience of DoLS has been generally positive but that may have been different without my Nan’s hospital admission. Speaking to some families at the care home whose relatives are also on a DoLS, they have much less information and support about the system. I would advise people in similar situations to get as much information as possible, to do their own research and to keep in regular contact with hospitals are care homes.
My Nan has been in the care home since November 2022, and we realise this was the right decision for her. We no longer worry about her leaving the house in the middle of the night, we can go and see her as much as we like, and we live our lives knowing that she is safe. I am grateful that she has a DoLS authorisation in place and feel like she is protected by the safeguards and the staff at her care home.
What a person told us about their personal experience
Although people have the right to challenge their DoLS authorisation, only a minority have independent support from advocates. In some circumstances, family members or friends may represent people. However, we have seen a particular lack of advocacy in older people’s services, where people do not have anyone to represent their views. We have also heard that this lack of investment means there are not enough advocates for everyone who needs one, despite the ‘legal and moral gravity’ of the role.
Working with DoLS
Delays to the implementation of Liberty Protection Safeguards mean that the existing challenges with the DoLS system will likely continue unless short-to-medium term changes are introduced. We are concerned about the impact of these delays for people being deprived of their liberty, for their family and friends, for providers, local authorities and other stakeholders.
As highlighted in the government’s LPS draft equalities impact assessment, disabled people and older people are more likely than others to require the safeguards offered by the current DoLS system. Delays to LPS implementation are therefore likely to have a disproportionate impact on some groups of people with protected characteristics under the Equality Act 2010, and steps should be taken to mitigate this.
The number of DoLS applications made by health and social care providers continues to increase and local authorities are unable to meet the current demand for assessments. We have also heard about the limited availability of trained Best Interests Assessors, which can contribute to the delays in completing DoLS assessments.
The postponement of the LPS reforms means that deprivation of liberty outside of a care home or hospital will continue to require a court authorisation, as those settings are not included within the scope of DoLS. A member of the Expert Advisory Group has told us that they are concerned about the processing times required by the Court of Protection to authorise deprivation of liberty in community settings.
Considering the inconsistent application of DoLS, and most importantly, the negative impact on the experiences of people at the heart of the system, we welcome the announcement of an updated Mental Capacity Act Code of Practice. Improved understanding of the Act is an important step that will also help to implement the Liberty Protection Safeguards in the future.
Looking ahead, as we continue working with the DoLS framework, we are considering how we can improve our new monitoring role as we roll out our new assessment framework. In the future, our new local authority assessment functions may support us in gaining a new perspective on the impact of DoLS application backlogs on local authorities and individuals.
