CQC warns of "too many examples" of potential deprivations of liberty in care services

The Care Quality Commission has warned that it has come across “too many examples” of people using health and adult care services who were being cared for in ways that potentially amounted to an unlawful deprivation of their liberty, and therefore potentially a breach of their human rights.

“In most cases, this was because services imposed significant restrictions on liberty without any consideration of the Deprivation of Liberty Safeguards,” the regulator said.

In a report entitled The operation of the Deprivation of Liberty Safeguards in England 2009/10, the CQC also found a clear variation in organisations’ understanding and practice of the DOLS and in staff training. “We came across too many examples of managers and staff in hospitals and care homes who are unaware of the Safeguards or who have had received no training on them, even towards 2009/10.”

The Commission, which is under a duty to monitor application of the DOLS, said it had similarly seen “too many examples” where staff had failed to consider whether certain practices could deprive a person of their liberty.

The CQC acknowledged calls from managing authorities, supervisory bodies and key stakeholders for clearer guidance as to what constitutes a “deprivation of liberty”. The regulator said there needed to be more understanding around the circumstances that may amount to a deprivation of liberty and of the types of cases that should have gone to the Court of Protection.

“We acknowledge the difficulty in understanding exactly which circumstances amount to a deprivation of liberty and in keeping pace with legal judgments from the Court of Protection that continually refine and add to the body of knowledge around what constitutes a deprivation of liberty,” it added.

However, the watchdog insisted that lack of a definition should not be used as an excuse, adding: “While it may be helpful to have a clear definition of a deprivation of liberty, health and social care staff should be trained effectively to be aware of the types of practice that could mean people using their services are deprived of their liberty. If there is any uncertainty, they can seek advice from their supervisory body.”

The Commission revealed that managing authorities, supervisory bodies and key stakeholders had criticised the DOLS as being over-bureaucratic and for the amount of paperwork that was needed to make assessments and comply with legal requirements.

The regulator said that although it did not have substantive evidence on this issue, it may have influenced the lower than expected rate of applications to deprive a person of their liberty (7,160 were made in England compared to the 21,000 predicted for England and Wales). “If the processes to do so are expensive and time-consuming, it is possible that managing authorities and supervisory bodies are either changing their practice to ensure that they do not deprive people of their liberty, or worryingly, they may not be adhering to the Deprivation of Liberty Safeguards.”

The CQC said it had also found a lack of understanding of the wider Mental Capacity Act. The regulator said some misunderstanding and lack of awareness of the DOLS might be expected as they were relatively new and only recently implemented, but described this lack of understanding of the basic principles of the more established MCA as “unacceptable”.

The CQC suggested that some aspects of the DOLS regime, which came into force on 1 April 2009, had been working well. These were that some hospitals and care homes have been demonstrating good practice in using the Safeguards to protect people’s rights, and had made some good progress in ensuring that their staff were aware of their duty under the Safeguards.

Many PCTs and councils had also made good progress in the first year in implementing the mechanisms set out in the Safeguards, according to the Commission. In addition, they had worked effectively together, and established joint teams to fulfil their supervisory body role.

The report identified a wide variation in the rates of applications per 100,000 of population. The highest number were made in the East Midlands (35 per 100,000) and lowest in the South West (12.5 per 100,000). More than half the applications were not authorised.

The CQC made seven recommendations in its report. These were that:

• The Department of Health should consider developing “clear and concise” briefings that are regularly updated and circulated to all bodies involved in the Safeguards. “These briefings must be explicit about the implications of the case law for practice and be written in a way that is accessible and more easily applied to practice than previous briefings”
• All organisations with a role to play in the Safeguards should ensure that relevant staff are effectively trained in the Safeguards and that they understand the requirements placed upon them by the Safeguards
• All organisations with a role to play in the Safeguards should ensure that all staff fully understand the requirements of the wider Mental Capacity Act “to ensure that people using services have their rights protected and supported”
• Supervisory bodies should give careful consideration to how they are fulfilling their role as a supervisory body in key areas such as their capacity to conduct assessments and to ensure consistency in the outcomes of applications to deprive a person of their liberty
• Supervisory bodies should ensure that those managing authorities from which they commission care are fully aware of their responsibilities under the Safeguards and consider whether they have been proactive enough in promoting and supporting understanding within managing authorities of the Safeguards
• Managing authorities should ensure that all staff are fully aware that they should be using the least restrictive methods to care for people using services. “People should only be deprived of their liberty if it is in their best interests and if it is essential to ensure that they do not come to harm”
• Managers working in mental health units should ensure that all staff in these units are aware that imposing restrictions of movement on all patients may be a deprivation of liberty for informal patients. “This will ensure that the way they care for informal patients does not amount to a deprivation of liberty without legal authority.”

The regulator pointed out that its first year of monitoring was done under separate regulatory regimes, and suggested that with the new framework under the Health and Social Care Act 2008 now in place, it was in a position to develop a more consistent approach across health and adult social care.

Philip Hoult