MPs tell Department of Health to review Deprivation of Liberty Safeguards

The Department of Health should conduct an urgent review of the implementation of the Deprivation of Liberty Safeguards (DOLS), an influential committee of MPs has demanded.

Publishing a report on the working of the Mental Capacity Act 2007, the Health Select Committee found:

  • Application of the DOLS was "variable and on many occasions those responsble for ensuring patients are protected by them have failed to do";
  • There was considerable confusion around the scope of the safeguards and how and when to apply them in practice;
  • The evidence the committee heard regarding the application of DOLS revealed "a profoundly depressing and complacent approach to the matter". There was extreme variation in their use and the committee was concerned that some of the most vulnerable people in society may be exposed to abuse because the legislation had failed to implement controls to properly protect them.

The committee said the results of the DH review should be presented to Parliament, together with an action plan for improvement, within 12 months.

Other key findings in the report:

  • It was striking that the implementation of the 'appropriate treatment test' established by the 2007 Act coincided with a substantial increase in the detained patient population. However, there was insufficient evidence to identify a causal relationship between the test and detention.
  • The DH does not appear to have a clear understanding of the factors driving increased detention, particularly in relation to failures in community treatment and the readmission of patients.
  • The committee heard evidence of severe pressure on beds, with some wards running at over 100% capacity.
  • It was now acknowledged that there appeared to be an inverse relationship between the number of available beds and rates of detention. "The most worrying consequence of this was the suggestion that voluntary admissions to psychiatric wards are now so difficult to access that patients are being section to secure treatment in hospital." The committee said it was very concerned that clinicians would resort to a practice which represented a major infringement of a patient's civil liberties. It called on the Department to investigate the prevalence of the practice.
  • There were reports that patients who managed to access treatment voluntarily were subject to 'de facto detention', whereby they are detained under section if they sought to leave hospital. "It appears that this practice is not extensive within the mental health system; nonetheless, the committee regards it as completely unacceptable".
  • Professional regulators should review their advice to clinicians regarding the use of sectioning powers.
  • The behaviour of commissioners is not consistent with the principle of 'parity of esteem' in the commissioning and delivering of services for mental health patients. "For 'parity of esteem' to be meaningful the Department of Health must encourage the development of commissioning and payment systems which reflect this objective and do not make mental health services vulnerable to cuts by local commissioners."
  • There is substantial variation in access to Independent Mental Health Advocates. Research also suggested that the more a patient needs an independent advocate the less likely they are to find one that can meet their requirements.
  • Patients should be allocated an IMHA unless they decide to opt out. Health and wellbeing boards should ensure that high quality advocacy services are being delivered. "Whilst the committee regards IMHAs as a valuable supplement to support patients, clinicians should lead in helping patients to understand and make best use of their rights."
  • Detentions under s. 136 of the Mental Health Act 1983 had grown considerably. The number of patients taken directly to hospital by the police had increased steadily but a signficant minority were still detained in police custory. Police custody should be used as a place of safety only in exceptional circumstances. Health ministers should work with their counterparts in the Home Office to refine the application of s. 136.
  • Claims by the DH that community treatment orders would help to reduce the detained population had not been borne out. There was substantial variation in the use of CTOs across the country. Ministers should review the current operation of the orders in the light of the Oxford Community Treatment Order Evaluation Trial, which concluded that CTOs performed no better than previous measures and the patient benefits did not justify curtailing a patient's liberty.

The committee also concluded the 2007 Act had not inherently disadvantaged minority ethnic groups. However, it was "notable that the number of black and black British patients subject to CTOs was even more disproportionate than the number detained in psychiatric hospitals".

The MPs called on local authorities to ensure they commission culturally sensitive and effective advocacy services. "Helping minority ethnic patients, especially black patients, understand and make best use of their rights would be an important step in addressing the disproportionate number of black patients subject to the provisions of the Mental Health Act."

Stephen Dorrell MP, chair of the Health Select Committee, said: “Mental health legislation is designed to protect extremely vulnerable patients but our review has found that many vital safeguards are not working effectively. 

"The provisions for DOLS are not working well. We found that it is commonplace for DOLS to be ignored leaving many people at heightened risk of abuse.”

Commenting on the evidence that patients who needed hospital treatment were being sectioned unnecessarily in order to access a bed, Dorrell said: “This represents a serious violation of patients’ basic rights and it is never acceptable for patients to be subjected to compulsory detention unless it is clinically necessary.

“A clinician who is complicit in this approach has compromised their professional obligations; both the professional regulators and the Government should urgently investigate the prevalence of this practice within the mental health system.”