Written by Hannah Blake, Trainee Solicitor.
As part of the release of the CQC's State of Care Report 2015-2016, we have produced a series of articles highlighting the findings and our analyses. Here, Hannah Blake comments on the issues raised in the report about DoLS.
In line with a Supreme Court ruling in 2014 'a deprivation of liberty occurs when a person is under continuous or complete supervision and control, is not free to leave, and lacks capacity to consent to these arrangements'. This has meant that hospitals and care homes must apply to local authorities if they wish to deprive someone of their liberty; the process is set out by the DoLS. Whilst it is well established that the DoLS are there to ensure that when deprivation of liberty is required, it occurs in the person's best interests, there are ongoing issues in relation to the understanding and application of the requirements. The role of CQC is to regulate and monitor their use and, unsurprisingly, they have found a direct correlation in relation to homes with a poor understanding of DoLS and a "requires improvement" or "inadequate" rating.
In the year 2015-2016 the applications to local authorities reached their highest level (of 195,840). In addition, a large proportion of these (49%) were for urgent consideration. As each application must be appropriately assessed before permission is granted, it has naturally placed considerable pressure on local authorities, dealing not only with the increase in applications but also carrying out assessments in a limited time to comply with requests for urgent applications. Given the concerns expressed by CQC, the problem may be exacerbated by providers making protective referrals to seek to avoid any criticism from the regulator that residents are being unlawfully detained. It is likely that such referrals will be viewed more critically by CQC in the next inspection cycle.
The cost of the process and sustainability of the DoLs regime has already been brought into question and this year's findings of increased strain on the process only add to this concern. In light of this, the report highlights a lack of understanding as to the use of urgent deprivation of liberty authorisations and a variation in the levels of staff training and understanding of DoLS. Whilst acknowledging there has been improvement in the care homes which were re-inspected and also those previously subject to enforcement action, these improvements represented rectification of the breaches which led to the enforcement action.
The report did highlight that often those who demonstrated good practice in relation to DoLS tended to be those rated as good or outstanding overall. The report noted that these care homes emphasised the best interests of the individual and avoided any form of 'blanket approach' to capacity assessments. Care homes which failed to meet requirements and required improvement were not seen to be applying capacity assessments effectively and had minimal or unclear procedures and processes in place with regards to DoLS. Such an approach is clearly not in the best interests of the individual concerned and brings the protection of human rights and wellbeing of people receiving care into question; exactly what the DoLS were intended to avoid. This must make operators look at whether DoLS is part of their mandatory training programme at all levels to ensure staff understand the legal requirements surrounding capacity and can articulate this clearly to inspectors. Future breaches in this area are likely to impact on the well led rating as the CQC perceive this to be systemic and reflective of how the organisation undertakes person centred care.
It is clear from the report that, on a basic level, improving the understanding of DoLS and creating robust procedures for staff to follow will substantially help care homes to not only comply with the process correctly, but ensure they are acting in a way which demonstrates good practice. Whilst the existing scheme continues to face challenges, there is hope that following the final proposals from the Law Commission in December 2016 this will help improve the regulation surrounding deprivation of liberty, but until then, we will have to wait and see.