Community Care magazine have written a great article on the DoLS, and also produced a guide to the deprivation of liberty safeguards for care homes produced by Community Care magazine, with some help from John Leighton at SCIE. Roger Hargreaves of the Mental Health Alliance, interviewed for the piece, makes the point that care home managers can't really be expected to operate without a proper definition of deprivation of liberty - hopefully the Cheshire ruling will offer some more clarity. But I wonder how many care home managers will read it?! The key task in the longer term and once the case law has settle down a bit, will have to be a revision of the DoLS code of practice.
One of the other points made in the article is that care homes don't like to acknowledge deprivation of liberty where it is occurring, because it sounds bad:
"I've had care home managers say to me 'I'm not in the business of depriving people of their liberty'," says Griffiths, formerly MCA and Dols lead at Oxfordshire Council. "If they had called them 'human rights safeguards', people would have been a lot happier to take them up."I wonder, if the DoLS are ever revisited by the Department of Health, whether they will consider rebranding them. I was never quite clear why the name 'protective care' (the 'working title' during the Bournewood Consultation) got junked - only one of the consultation responses raised concerns about it. That particular response suggested that it was better to be 'honest' about how restrictive care can be for a person's liberty. In principled terms I agree; in practical terms I do wonder if this is a fairly significant factor in why the DoLS aren't working.
The article gives a description of a case where scrutiny resulting from a DoLS authorisation had led to improvements in a care plan. I hear this kind of story all the time from BIA's and IMCA's - I really wish some empirical research would come out on outcomes from DoLS. My gut instinct, admittedly mostly based on anecdotal reports of others, is that once the DoLS are engaged a person tends to access far better quality care planning, and indeed it can act as a lever for increased resources to ensure access to the community and less restrictive care plans.
The perception of the deprivation of liberty safeguards being 'a bad thing' is hardly likely to be helped by reports of councils using them to do things like stopping a person going on a cruise with their husband. ITV reports that Cardiff Council prevented Mrs Peggy Ross and her husband from going on a cruise together, as they had done every year for thirty years, using the DoLS. The clip has a comment from Phil Fennell at Cardiff University Law School. Normally with these types of news reports you'd have to be sensible and say "well, we don't know what's going on in the background" to this. However, in this case the Court of Protection overturned the restriction three days before the couple departed on their cruise, so clearly whatever was going on in the background the court didn't find it sufficient to warrant interference with their holiday. So instead I'll restrict myself to saying instead: it'd be nice to see the judgment... I like to imagine the local authority were reminded of a point becoming increasingly important in Court of Protection best interests jurisprudence:
What good is it making someone safer if it merely makes them miserable? [Re MM (2007), [120]]Interesting paper on human rights issues raised by coercive treatment under the Mental Health Act
On a completely unrelated note, the journal Medical Law Review has just published a nice paper by Peter Bartlett on whether the safeguards for compulsory treatment under the Mental Health Act are compliant with human rights law. I mention it because the paper is free under a creative commons license, and also because many of the concerns Bartlett raises about the lack of safeguards for coercive treatment in psychiatric detention apply ten times over in community care settings. Bartlett cites an interesting statistic that more people are killed by the side effects of anti-psychotic medication than are killed by people with mental disorders. We shouldn't forget that in community care, anti-psychotic medication is routinely used as a chemical cosh for people with dementia; a practice that has been condemned by government advisors and yet the only legal framework for this is Mental Capacity Act 2005. That provides no real procedural checks and balances to ensure sedating medication is justified, whereas even in psychiatric detention SOAD approval would be required after 3 months. There are significant human rights issues raised by psychiatric detention and coercive treatment in the UK, but in comparison with mental health settings community based care settings are still in the Wild West.
The Dols attract a lot of criticism and rightly so. In theory (emphasis added) we know where they fit in relation to the MCA, after all they are part of the Act. For me cases such as Winterborne view, Re A (contraception) and Re SA are all classic 'adult safeguarding' cases and that is how I have always recognised them. But just how do you reconcile the Dols with adult safeguarding. It seems to me that they have different objectives (do they?) but there is confusion as to whether they overlap or not, and if they do, should they?
ReplyDeleteHi there,
DeleteExcellent questions! Strictly speaking, DOLS and 'safeguarding' are both working towards the same ends: protecting people's rights (No Secrets effectively defines abuse in terms of rights violations). However, the processes and cultures surrounding safeguarding and DOLS typically focus on different kinds of rights. So DOLS is concerned with what we might call procedural justice - making sure any major interferences with a person's rights (as deprivation of liberty clearly is) are non-arbitrary, and a person has accessible methods of redress to challenge such interferences. DOLS don't actually do this especially effectively unless you've got a DOLS team who understand this and actively scrutinise care and support challenges, but some do this very well.
By contrast, 'safeguarding' usually results in an intervention, often grounded in capacity and best interests, which might very well call for the kind of procedural safeguards that DOLS provide (or a court application) to ensure it isn't arbitrary (ie. is in keeping with established principles, e.g. MCA and HRA). So those desiring a safeguarding intervention may well regard DOLS as an obstacle, or working against them, because potentially it means they may end up in court arguing for what (to them) is obviously in a person's best interests.
If we take a wider view, however, I think DOLS and safeguarding can work really well together (although I have misgivings about DOLS officers working within safeguarding teams, because of the need to inject independent scrutiny into decisions which may have originated from that team). Winterbourne View is actually a pretty good example of this. Most people in WV were probably there under some dubious 'best interests' decision. In reality, they probably should have been under the MHA not DOLS, but let's imagine they were under DOLS. A BIA would have come and looked at the care plan, looked at the restrictions they were subject to, spoken to the person about how they felt about their care, spoken to families. They may very well have picked up on the issues which should have served as a warning that all was not well at WV. Furthermore, the person themselves should have had an advocate to help them and their families challenge their placements. If the DOLS worked (and we know that's a big if), then anybody who was in WV and they or their families didn't want to be there should have been able to go to the COP. One of the key lessons which came out of WV was that the concerns of people and their families was ignored. But if the DOLS was properly applied, they couldn't be.
You might say that if adult safeguarding worked properly, then the concerns of people at WV and their families would have been responded to. But the problem with adult safeguarding is it's all in the hands of professionals. If (as here) there is a lapse in professional judgment, families and service users are left pretty powerless. DOLS distributes the mechanisms for getting these issues under the spotlights through detainees, families, advocates, and independent assessors.