Deprivation of Liberty Safeguards (DoLS) is a vital safeguarding process designed to prevent unlawful detention and disproportionate restrictions placed on individuals. It also protects human rights and places the individual at the centre of their care, where no one size fits all.
And yet despite the importance of DoLS, still poor practice remains rife. In one recent example, the CQC reports a case where a person with autism was subject to invasive tests and assessments without due application of the Mental Capacity Act. Meanwhile, the CQC also reports that older people are being unlawfully detained in hospitals because of poor DoLS practice.
This is certainly something I have witness myself in my own work as a healthcare professional. Indeed, I have encountered numerous situations where staff have either misunderstood or misapplied the law relating to a whole range of issues including:
- Mental Capacity Assessments
- DoLS authorisations
- Best Interest decisions
- Lasting Power of Attorney
- And more!
In many cases, these issues can be easily avoided with proper staff training on how to carry out Mental Capacity Assessments properly, including full documentation and the legal responsibilities of staff.
This issue is one examined by a Local Authority Lawyer in Adult Social Care, who reflects on the ‘big picture’ of how the Act has been implemented. The impact of poor implementation has been evidenced in the large number of cases where an organisation or place of residence has applied for a DoLS Authorisation, but the Local Authority DoLS office has not had the resources to assess cases and provide support. This has been raised as a serious issue of concern in a number of areas across the UK, where some DoLS backlogs are in excess of several years.
These delays may be understandable, to a degree, with the UK economic climate as it stands. However, it has been an ongoing issue for many years now, leaving many authorisations in breach of the law – a matter that has been raised by a number of organisations.
A broken system?
Given the many ongoing issues, it is no wonder the likes of Age UK and others have argued that the system is broken.
But of course, even if the system itself is indeed broken, this does not in any way reduce or negate our ongoing responsibilities to uphold the Mental Capacity Act and the current DoLS process. If anything, the struggling system means it is more important than ever to make sure we protect the rights of those in our care.
As many readers will be aware, it is best practice to ensure a DoLS authorisation is established if the Acid Test is met. If there is any element of doubt, or if there are particularly complex circumstances, I would strongly recommend making contact with your Local Authority and seeking counsel on Inherent Jurisdiction, or alternate applications if appropriate. This is absolutely critical, because if DoLS is missed or wrongly applied for whatever reason, it leaves you and your organisation in direct breach of the law.