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), ]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.