In October 2024, the Care Quality Commission (CQC) published its latest report on ‘The state of health care and adult social care in England 2023/24’. The report draws together findings from a range of sources including patient surveys, statutory reports, inspections and feedback from stakeholders, as well as bespoke research and evidence gathered by experts within the field.
From which, it is perhaps not surprising to learn that the CQC again reports significant concerns regarding the Deprivation of Liberty Safeguards (DoLS) – something which has long been flagged as a cause for concern (p. 11). This has been echoed in the DoLS statistics published in September 2024, as well as Age UK’s ‘Hidden Crisis’ report published in April 2024.
Mental Capacity and DoLS
In this most recent CQC report, a large segment is dedicated to discussing Mental Capacity and the DoLS process (pp. 125–134), with several further references made to issues in this area made across the report. Key concerns include:
- Increased vulnerability of those impacted by mental health and learning disabilities within the context of ward environments. Examples include those staying in mixed-sex accommodation alongside those who may present with disinhibited behaviour and who may not recognise consent to relationships; or those who may lack mental capacity to make decisions surrounding relationships (p. 70).
- Note: this concern does not recognise the risks that this could equally occur on same-sex wards.
- There remains a ‘chronic backlog’ for DoLS assessments in all but one local authority. These delays are often in significant excess of legislative timeframes for completion, leaving vulnerable persons without the protections they are entitled to, as well as impacting their families, supporting staff and local authorities (p. 11 and pp. 125–134).
- The report also notes the variation in the ways in which local authorities are managing the backlogs (pp. 126–129).
- Note: the report does not expand on this point, raising questions around what these variations are, and the related impact on safeguarding, due process, consistency and best practice.
- There remains a limited understanding of the Mental Capacity Act (2005) and DoLS process more broadly, with a recognition that ‘it is vitally important that services ensure staff have adequate knowledge of DoLs to protect people’s human rights – both now and in the future’ (p. 131).
- The report notes that ‘many managers and staff still lack confidence in applying them in their work’ (p. 129).
- There is also a lack of recognition for what can qualify as a restriction or restraint (p. 129).
Further concerning findings
- ‘Worryingly, we also heard of a misconception among some providers that a DoLS application equated to an authorisation being in place’ (p. 129).
- Inconsistency of reviewing Mental Capacity Assessments and Best Interest decisions (p. 129).
- Some providers applying blanket restrictions, being wrongfully guided by a ‘protection imperative’ (p. 130).
- Presumption of lack of capacity if assessed in one domain of decision making (p. 130).
- Differences in the application of core legislation between care and hospital settings. Also some misunderstanding in the applications needed for various settings. This, alongside the impact of DoLS delays, often results in authorisations not being in place despite the safeguarding requirement (pp. 130–131).
Need for reform
The system has been in need of reform for at least 10 years, and yet in all that time, no substantial changes have been enacted. While some steps have been made towards reform, with the proposed Liberty Protection Safeguards (LPS), the implementation of these changes remains a mystery, with numerous delays and postponements under the previous Conservative government, and no update from the new Labour government since it has been elected. These leaves a void of uncertainty, as challenges continue to mount within the system.
Through this report, we have yet another piece of qualitative and quantitative evidence of the challenges and concerns in practice surrounding the Mental Capacity Act and DoLs, for which it is hoped that there will be a response and plan of resolution to help address.
Support with Mental Capacity
For training on the Mental Capacity Act, including the option of an interactive workshop in how to assess and document cases, please visit our Mental Capacity training page. You can also contact us directly to find out more.