CQC's second monitoring report on the deprivation of liberty safeguards

The CQC have published their second monitoring report on the deprivation of liberty safeguards (DOLS), and it contains many welcome improvements on their first monitoring report (which I was extremely disappointed with).  This is hopefully a reflection not only of the DoLS becoming more embedded and (slightly) better understood, but also the CQC's own monitoring role becoming better established.   I had a sense, reading the report, that the report's authors had tried to do a lot with the materials and information they had available to them.  The report also contained awareness and reflection on the limitations in CQC's monitoring role and a pro-active strategy is being developed to enhance CQC's own understanding of DoLS, and their methods for monitoring and reporting on it.  There are definite signs of growth of their role in interesting new directions.  However, I still feel frustrated that three years into the operation of the DoLS, CQC have yet to find a coherent strategy for monitoring the framework in its entirety, as opposed to cobbling together what they have gleaned from the bits which pass their way in the course of their ordinary regulatory activities.  Their task is not easy, for reasons I'll outline below, but that shouldn't become an excuse for not taking those steps to gather more information which are within its powers.

Are CQC our greatest hope to build up momentum for DoLS reform...?

Before I go on to discuss the report itself, I wanted to reflect on what the significance of CQC's DoLS monitoring role is.  The DoLS are a framework for detention.  They are a framework that is intended to safeguard one of the most fundamental rights in a democratic state - the right to liberty - for some of the state's most vulnerable citizens.  Even if the DoLS had been drafted well (and I think it is universally agreed that they were not), and even if the meaning of deprivation of liberty was clear and non-controversial (and I don't think it is yet), the task of imposing detention safeguards on widespread and well entrenched practices across such diverse settings was always going to be extremely challenging.  The CQC are obliged to monitor the functioning of Schedule A1 and report to the Secretary of State for Health at his request.  The CQC's monitoring framework is hence the 'official' channel for information about the (mal)functioning of the DoLS to reach the Department of Health (DH), who have responsibility for the DoLS.  Although other organisations, like the Mental Health Alliance, may study the DoLS and produce excellent, detailed and critical reports on the safeguards, it is far easier for ministers to dismiss unsolicited reports by third parties with a promise to "look carefully" at them, and then stick them in a drawer somewhere.  By contrast, the DH have actively requested the CQC's own reports on the DoLS, they represent the 'official' view of how the framework is functioning; they cannot ignore it.  If we are ever to build up a head of steam on the need to reform the DoLS, in part this must come from the CQC's own reports.

What the report covers

There are several interesting findings in the report, which I'm sure will be well covered by media outlets, so I will just summarise them here:

• CQC indicate that both their regulatory inspectors in care homes, and the Mental Health Act Commissioners in hospitals have found incidents where a DoLS application should have been considered, but was not.  Interestingly, CQC suggest that Winterbourne View and Mid Staffordshire are two such examples - I have suspected, but never heard it officially suggested, that the DoLS should have been, and were not, engaged at Winterbourne View.
• In particular, CQC expressed concern about the use of restraint and anti-psychotic medication of dementia patients possibly contributing towards unauthorised deprivation of liberty; I'll come on to discuss their interpretation of the scope of Article 5  below.
• CQC also indicate that deprivation of liberty can occur in supported living and Shared Lives schemes, and conducted a review of inspection reports in those services for mentions of the MCA and DOLS.  In these, they found there was generally good training on MCA and DOLS, and good levels of involvement of service users in decisions about their care.  
• CQC state that care services are required to notify them when they make applications to the Court of Protection (93 times, apparently), but it's unclear whether these were applications for authorisation of deprivation of liberty outside of the scope of the DoLS, or for other reasons.  If CQC are able to drill down into that data to the reason for the Court of Protection applications it would certainly be interesting to know, as there is no official tally of how widespread deprivation of liberty outside of DOLS is.
• CQC comment that they cannot directly observe the circumstances of detention if somebody is detained in a childrens' service or shared lives/supported living type scheme.  However they don't make the point, which the DH might need reminding of, that without any external independent visitation of these sites of detention, the UK is in breach of its obligations under the UN treaty OPCAT.  Oddly, CQC didn't mention this problem in their recent contribution to the UK National Preventive Mechanism report on OPCAT either.  It will only take one serious abuse scandal involving detention in such settings to remind everybody of this major lapse in human rights protection.
• According to CQC the majority of care services have sent some, or all, of their staff on DoLS training, but a 'rump' of services have not.  In hospitals, they found ‘...poor or incomplete documentation of assessments of mental capacity, departures from policy resulting in fewer assessments of mental capacity, and a general lack of confidence in using the Safeguards or assessing capacity among staff and ward level leaders.’
• Services that make an application under the deprivation of liberty safeguards are required to notify the CQC.  This is important so that the CQC knows which services are using the DoLS and which are not - either of which could be a risk factor that could prompt an inspection, depending upon what other information was available to them.  By comparing the number of notifications CQC had received from providers with the number of notifications the DH had received from supervisory bodies, it became apparent that providers were only complying with their duty to notify CQC of making a DoLS application in around 30% of cases.  Clearly, this hampers the CQC's inspection role if they are unaware of where people might be detained under the DoLS, and they have developed a sensible strategy to improve this situation.  
• CQC then conducted a 'thematic review' of the notifications they had received, and produced various charts and statistics about the authorisation rate by region, by sector, reasons why applications were not granted, etc.  It's not that this review isn't interesting, and it's good to know that CQC have service level data so that they can see which services are using DoLS and which aren't, but it doesn't tell us a great deal more than the DOLS statistical reports that are already conducted by the NHS Information Centre.
• Helpfully, CQC provide some case summaries in an appendix (London Borough of Hillingdon v Neary & Anor [2011]; P & Q v Surrey County Council [2011]; Cheshire West and Chester Council v P [2011]; RK v BCC (2011); GJ v The Foundation Trust & Anor [2009]).  This is a really positive and welcome development, especially as the DH no longer seems to update its pages on the DoLS with case law developments.  It's pretty unlikely, I suspect, that care providers will go ferreting around on BAILII or Mental Health Law Online for developments in Article 5 jurisprudence, so it's good to see these important cases included in a document which they are much more likely to come into contact with.  It's a pretty good selection of cases to include, and secretly I'm glad that they didn't include the hideously awful ruling in C v Blackburn with Darwen [2011], because the fewer people that know about and apply that judgment before it can be overturned, the better in my view.  I cannot imagine that a finding that a man who had battered down the door of his care home trying to escape was not deprived of his liberty would stand up in the wake of recent ECtHR rulings like Stanev v Bulgaria [2012] and DD v Lithuania [2012].
• CQC indicate that their own staff have all received additional training on DoLS.  They have developed regional leads on the DoLS, and a national lead post on mental capacity and mental health legislation.  They have also developed a 'resource pack' for managers, to structure discussion of DoLS.  All these developments are very welcome, and indicate that CQC is beginning to gear up to fill the national vacancy of leadership on the DoLS.

The meaning of deprivation of liberty

CQC comment that:

'...there is still significant complexity in understanding what constitutes a deprivation of liberty and when to apply the Safeguards. There are also challenges for both managing authorities and supervisory bodies in keeping abreast of the latest judgements.'

The problem is, this uncertainty does not merely hamper the activities of managing authorities and supervisory bodies, it also hampers the work of the CQC themselves.  If CQC are meant to detect non-compliance with the DoLS, then their inspectors will need to have a clear idea of what 'deprivation of liberty' means in the context of incapacity and care.  This is in part so that the CQC themselves don't fail to spot unauthorised deprivation of liberty, but it is also because if they wanted to impose penalties for non-compliance they would need to have a robust case that a service had not sought authorisation where they should.  CQC's own working definition of deprivation of liberty still seems, to me, to be closely tied to restraint.  Restraint, locked doors, close supervision and control, 'the use of anti-psychotic medication in care homes for people with dementia' all make repeated appearances in the report as evidence that care providers may be detaining people without authorisations.  And yet... I am not sure that a careful reading of rulings like P & Q, Cheshire West and Chester Council v P, Re RK, and (the hideous, but still "good law") C v Blackburn with Darwen would support that analysis.  The gist of P & Q is that deprivation of liberty relates to a) objections, and b) how "institutional" a setting is, but not necessarily restraint or 'freedom to leave'.  The gist of Cheshire seems to be that unless either a person is restricted to a much greater degree than would be 'normal' for a person with their disabilities (whatever that means!), or there is another place where the person might realistically reside which they, or others, want them to relocate to, then they are unlikely to be 'deprived of their liberty'.  The problem is that, especially on this latter point, the CQC are unlikely to be in a position to know this.  Whilst issues like bedrails, locked doors, and sedating anti-psychotics may be open to view by inspectors, the circumstances in which a person arrived at a service or might leave it - which increasingly is the key factor in deprivation of liberty - will be less apparent to inspectors.  It would certainly be very welcome if CQC wished to conduct a separate thematic review of issues around capacity, consent and whether restrictions on liberty are necessary, proportionate and in a person's best interests, but it is less and less clear that this is a DoLS issue and not a general 'safeguarding' and MCA issue in adult social care.  It is understandable that CQC wish to hang onto locked doors, restraint and restrictions on freedom of movement as evidence of deprivation of liberty, and I would certainly favour such an analysis myself, but the fact is that CQC's definition of deprivation of liberty seems to be coming apart from the courts'.  The danger is that in the long term this uncertainty will undermine their efforts to enforce compliance with the DoLS; CQC, like everybody else, need more certainty as to the scope of Article 5.

Serious information gaps on safeguarding Article 5(4) rights

It is clear in this report that somebody within CQC has been thinking about how their monitoring of DoLS can be developed and improved, and I am very aware indeed that the way CQC monitor the DoLS cannot equate to the way they monitor the Mental Health Act (MHA) for various good reasons (which I have discussed here).  CQC themselves acknowledge that:

Although information on managing authorities continues to improve, by itself that is not sufficient to advise on the  overall effectiveness of the Sa feguards. We have no routine information on appeals, use of the Court of Prot ection (including where liberty is deprived in settings other than care homes and hospitals), or access to advocacy and support, for example. We do not have the range of direct feedback from people subject to the Safeguards or from their carers, that we have in our MHA monitoring. And with on-going change in PCTs and local authorities, and in their arrangements  for performance assessment, we do not have comprehensive information on supervisory bodies  or assurance that it will be available in the future. 

CQC go on to say that 'It is not CQC’s responsibility to resolve all of these issues, and we do not intend to address them alone'.  This comment does concern me slightly.  They are the sole body with responsibility for monitoring Schedule A1, and they must monitor the DoLS in their entirety, not just those bits that happen to come across their desk in the course of their other regulatory duties.  It is true that accessing information on appeals, on advocacy, on the activities of supervisory bodies will be more challenging, but this is a challenge they absolutely must take up to comply with their legal requirement to monitor Schedule A1.  The DoLS monitoring regulations leave considerably more discretion to CQC in how they go about this role than the equivalent Schedule for the MHA, but this doesn't indicate lesser responsibilities, rather it reflects greater flexibility in how they go about it.

Although this latest report is an improvement on last year's, the CQC must move away from treating the DoLS as a piecemeal collection of application, notification and training requirements, and assess them against their purpose: creating 'real and effective' protection against arbitrary and unlawful detention.  This will require them to do more than rummage around in their cupboards, as we will need information on:

• Whether assessments of best interests and capacity by supervisory bodies are of an adequate quality;
• Whether conditions on authorisations are being adhered to by managing authorities;
• Whether 'best interests' assessments are suitably independent from care planning, and free of conflicts of interest;
• The accessibility of the appeals mechanism from the perspective of detainees, their representatives, and the relevant professionals (ie. best interests assessors, DoLS teams, Independent Mental Capacity Advocates, solicitors, judges);
• The intersection of the Mental Health Act and the DoLS;
• The number and type of cases which result in an appeals against detention - including an analysis of whether some demographics are under- or over- represented;
• The outcomes of appeals. I wrote a few months ago that 'For all we - the public - know, Steven Neary might be the only person ever to have been discharged from detention by the Court of Protection.'  This is still the case, and it is worrying that whilst so much attention is being devoted to fairly peripheral issues like staff training and notifications, nobody in CQC seems to be asking the absolutely fundamental question: do DOLS reliably ensure that people who should not be detained, are released?

As the CQC themselves point out, the relevant information to answer these questions does not reveal itself in the course of their ordinary duties.  This is particularly so because of Paul Burstow's extremely unhelpful decision in 2010 to end the performance assessment of local authorities' adult social care teams - CQC cannot, therefore, directly inspect the activities of the supervisory bodies which would cast some light on these issues.  They indicate that they are reluctant to impose additional data collection requirements on supervisory bodies, and they are working on pilots to find ways of accessing information via other means (including the 'collaborative reviews' of local authorities which IDEA are working on).  This is great, but there are sources of information that even I have been able to access which CQC has not drawn from in this report, which could have cast a useful light on how the safeguards were functioning.  The DH collects data on independent mental capacity advocacy services, and as I found when the DH (finally) disclosed this data to me, there are real problems with referrals to advocacy within the DoLS.  I can't see why the CQC think it's relevant to essentially replicate the NHS IC's demographic analyses of DoLS, but not include data from this source as well.  It suggests that they have failed to understand how advocacy is an absolutely vital Article 5(4) safeguard in its own right; a safeguard which is - the evidence suggests - malfunctioning.

The same could be said of appeals data.  In response to requests by me and others, the Court of Protection have disclosed data on DoLS appeals; again, there is no reason why the CQC could not have included this data as well.  I am sure the Court of Protection would be more than happy to work with CQC to develop more detailed information about the types of cases that are appealing, and the results of those appeals.  You don't need special powers from parliament to pick up the phone and speak to the court's staff to ask for help with this, and I can't understand why after three years of the DoLS the CQC don't seem to have done this yet.  I understand that CQC are in a difficult position vis-a-vis collecting information from supervisory bodies because of the DH's position on reducing the 'burden' of regulation.  However, in my experiences of contacting supervisory bodies about DoLS, many practitioners are only too willing to share their problems, their triumphs, their suggestions about how the DoLS are operating.  The Mental Health Alliance's ability to conduct research in this field shows that you don't always need special powers to compel people to provide information, it may be sufficient just to open the door and invite them to submit their experiences, their concerns.  Furthermore, CQC can use the Freedom of Information Act 2000 to collect data from supervisory bodies on their DoLS activities, just like anybody else can.  The bar to collecting at least some information on how the DoLS are functioning at the supervisory body level is political, not legal.

And finally, much improved though this report is in comparison to last year's, we still have no information about the experiences of detainees themselves and their carers.  To my mind, this is the single biggest disappointment about the report.  These experiences aren't just frills or niceties, to scatter the report with - they are where we will learn about serious issues, as the MHA reports show so well.  For anybody without the CQC's powers to interview care service users these experiences are extremely, extremely, difficult to get at.  There are extremely demanding bureaucratic hurdles in the way of any researchers seeking to interview detainees who lack capacity about their experiences, and consequently the majority of research on the DoLS has had to focus on professionals' views and experiences instead.  The MHA visiting role specifies that CQC must interview patients detained under the MHA in private, but is there any legal reason preventing Mental Health Act Commissioners also interviewing patients who are detained under DoLS on their visits?  Is there anything preventing regulatory inspectors, who aim to capture 'what people say about this service' in every inspection report, including at least one interview with a person who is detained under DoLS, or their representatives, during inspections?  Is there anything stopping CQC storing these experiences in a way such that they could be retrieved as a corpus for next year's report?  It strikes me that if the CQC is, ultimately, to inspect DoLS with as much rigour as they inspect the MHA, they need to build up their workforce's knowledge and understanding of the framework.  And what better place to start than by, for example, asking their MHA visitors to speak with DoLS detainees, perhaps just one per visit, when they are already conducting site visits?  Than by requiring any regulatory inspectors who happen upon a service where a person is detained, to ensure that they speak to that person and check whether authorisation conditions are being complied with?

If it is not the CQC's responsibility to resolve these information issues, then whose is it?  The DH disbanded its own DoLS implementation team shortly after the Coalition government came to power.  I suspect there are not many people within the DH who understand the Mental Capacity Act 2005 (MCA) and the DoLS (otherwise I am not sure how Burstow's rather extraordinary claim last year that inappropriate administration of anti-psychotics to dementia patients was a 'deprivation of liberty' and a crime under s44 MCA got past his departmental advisers).  There should be somebody, somewhere, within public office who has a good understanding of how the framework as a whole is functioning, and the logical place for such a person is that they would be in the CQC.  Furthermore, CQC are explicitly required by s4(1)(d) Health and Social Care Act 2008  to have regard for the rights of people detained in relation to the MCA, which includes - but is not limited to - the deprivation of liberty safeguards.  There are ample reasons for them to take their DoLS monitoring and enforcement role very seriously.  And if they have not, for example, interviewed detainees and their carers using their ordinary powers of inspection, if they have not sought out data on appeals, if they have not used the data the Department of Health already collect on advocacy for the DoLS, and if they have not opened up a voluntary channel for supervisory bodies to submit their views and experiences on DoLS, that was the CQC's choice, not a lack of powers.

This report called to mind something my friend J calls 'back of the fridge cooking'.  That's when you've run out of cash, or run out of time, to pop to the shop for the cooking ingredients, so you rustle up a meal with what you have available.  As back of the fridge cooking goes, this was a reasonable effort, but they seem to have left a number of choice ingredients at the back of the fridge.