Many readers will be familiar with the Deprivation of Liberty Safeguards (DoLS) – an important, if poorly implemented piece of legislation. While DoLS primarily relates to the Mental Capacity Act (2005), one of the oddities of the law is that DoLS was actually first introduced as part of a Mental Health Act (2007), and as such, the CQC’s monitoring report for DoLS is published within the Monitoring of the Mental Health Act 2024-25 report, rather than the MCA.
Reporting on DoLS
The report for 2024–25 highlights the amended Mental Health Act (2025) which will be a landmark of change in the coming months. For more information on this area, useful summaries of the updates can be found at Mental Capacity Law and Policy, Community Care, Rethink and many other places.
From the Mental Capacity perspective there was one key central theme running through the report: that of unlawful detention, and concerns around the protection of rights. We have highlighted several important passages below:
Services that respect human rights are fundamental to good outcomes for people. However, we are concerned that too many people, especially those on wards for older people and those who do not have the capacity to understand their rights, are being unlawfully detained.
Everyone working in health and care has a role to play in reducing the use of restrictive practices. However, the average number of reported restrictive interventions each month increased between 2023/24 and 2024/25.
Monitoring of the Mental Health Act (2024-25), p. 9.
Concerns of unlawful detaining of persons on wards is highlighted on page 43, ‘especially those on wards for older people and those who do not have the capacity to understand their rights.
Monitoring of the Mental Health Act (2024-25), p. 43.
De facto detention
Our MHA reviewers expressed their concerns that too many people, especially those on wards for older people, were deprived of their liberty without clear legal authorisation.
They explained that this can happen when a person is kept in hospital while not being formally detained under the Mental Health Act or having a Deprivation of Liberty Safeguards authorisation in place to provide an alternative authority to keep them detained. As discussed in our State of Care report, applications to authorise the deprivation of a person’s liberty have increased significantly over the last decade, often resulting in lengthy delays.
MHA reviewers said that this practice has become so common it is “almost normalised”. Where patients are deprived of their liberty without a legal authorisation in place, they have no legal framework to use to appeal the deprivation of their liberty or de-facto detention. They also have no right to support from an Independent Mental Health Advocate to help them understand their rights, or to support them in raising concerns about their situation.
Monitoring of the Mental Health Act (2024-25), p. 46.
This of course is a highly concerning matter, which has been seen echoed in multiple reports across the years, most recently in the Mental Capacity Forum and CQC State of Care Report. The origins of this system-wide issue often being linked back to a lack of funding, resources, knowledge and confidence in practice.