Introduction

Protecting people who lack capacity from harm can sometimes be done in a way that deprives them of their liberty. Until recently there were no procedures in place to protect individuals subject to such constraints on their autonomy. Professionals did not have to justify why they were depriving someone of their liberty and there was no means of appeal if this happened.

This changed in 2009 with the introduction of Deprivation of Liberty Safeguards (DOLS): formal procedures to protect people who ‘for their own safety and in their own best interests’ need care and treatment that may deprive them of their liberty, but who lack the capacity to consent to this.

Under the Safeguards, whenever staff in a care home or hospital believes someone in their care is likely to be deprived of their liberty, they must apply to the local authority for an authorisation to detain them (thus becoming the managing authority). The supervisory body is responsible for carrying out assessments to determine whether deprivation of liberty is occurring, and if so, whether it is in the individual’s best
interests, or whether care can be provided in a less restrictive manner.

Objectives

This study examined the implementation of DOLS in England and their impact on care practice.

Methods

The study took place in four local authority areas in England. Scoping interviews with DOLS leads in these authorities were followed by data collection from nine ‘live’ DOLS cases, involving multiple interviews with the managing authority applicant, the relevant person’s representatives (and/or Paid Representative), the DOLS assessors (BIAs and MHAs), the supervisory body signatory and (where appropriate) the relevant person’s advocate and social worker. The IMCA provider in each of the study sites was also interviewed.

Supplementary data was also gathered from an additional set of care home managers, BIAs, MHAs and SB signatories about individual, anonymised DOLS cases. In total 52 people were interviewed in the case study phase, and 27 in the supplementary stage of the study.

An online factorial survey of BIAs was also conducted to explore the factors that influenced their decision making in DOLS cases.

Findings

  • Managing authorities (in this study usually care homes, although they may also be a hospital ward) often had to be ‘nudged’ by others (e.g. professionals involved with the person) to make a DOLS
    application
  • In this study, a key indicator that someone was being deprived of their liberty was the person attempting to leave where they are, or repeatedly saying that they wanted to leave
  • Best Interest Assessors (BIAs) said the information they needed for their assessment was not always
    readily available from care home staff
  • Some assessors felt that the limited time allowed to complete their assessments (in particular, the
    Mental Capacity Assessment) was detrimental to good practice
  • An online factorial survey using vignettes (fictionalised case studies) identified the key factors in BIAs’ decisions to authorise a DOLS. Most significant were situations where members of staff were preventing someone who evidently wanted to leave a setting from doing so and the resident’s response and family unhappiness with care. Other indicators of staff control, including the use of medication to reduce agitation, restriction of movement and family unhappiness with care were also significant. These factors were consistent with the Code of Practice and case law
  • At the heart of the BIAs’ decisionmaking when authorising a DOLS application was a desire to keep the person safe
  • One impact of DOLS was a detailed scrutiny of care practices. While some care home managers expressed anxiety about this, others felt this level of scrutiny was reassuring in endorsing their practices
  • A majority of BIAs felt that the DOLS had made a positive impact on the human rights of the people protected by the safeguards, although some were concerned that the appeals process was overly bureaucratic.

Resources


Journal paper

Carpenter J, Langan J, Patsios D, Jepson M (2013) Deprivation of Liberty Safeguards: what determines the judgements of Best Interests Assessors? A factorial survey, Journal of Social Work, 1–18.

The Deprivation of Liberty Safeguards: their impact on care practice
( https://www.sscr.nihr.ac.uk/wp-content/uploads/SSCR-research-findings_RF004.pdf )
Pubs page