Liberty Safeguards Research Articles

Safeguarding adults: practical tips for training

Sarah Goodall discusses why care homes need to ensure that Deprivation of Liberty Safeguards training is organisational wide and how the use of creative training materials can achieve better outcomes

Practice question.

Jane Buswell is an independent nurse consultant and a best interest assessor for Deprivation of Liberty Safeguards. She is chair of the British Geriatrics Society older people's specialist nurse and senior practitioner group.

Deprivation of Liberty Safeguards: Living DOLS

The Deprivation of Liberty Safeguards (DOLS) for patients in hospitals and care homes have now had their first full two-year review. The Care Quality Commission (CQC) (2012) found variations in staff training, and the Mental Health Alliance (2010) said care home staff in particular needed more. DOLS inhabit a grey area between the mental health and mental capacity legislation, and the Alliance wonders why there aren't more referrals to independent advocates. As there is no legal definition of DOL, lawyers aren't necessarily better placed than HCAs to decide. Another wrinkle is that the supervisory body authorising DOLS is often the same authority that arranged placement.

The use of supportive observations within an inpatient mental health unit for older people and dilemma of using the Mental Health Act (2007) or the Mental Capacity Act (2005) in England and Wales

In England and Wales the interface between the Mental Capacity Act 2005 (MCA) and Mental Health Act 2007 (MHA) is frequently encountered in mental health practice. In services involving older adults many service users will have cognitive impairment and dementias in some instances with behavioural and psychological symptoms of dementia and assessments regarding their mental capacity to make decisions are frequently required. Service users with these illnesses are admitted to psychiatric wards and occasionally nursed under 'close observations' in order to maintain their safety and that of others. The concepts of 'complete and effective control' which may be exercised by ward staff in these circumstances, and the resulting 'loss of autonomy under supervision and control' must be understood in consideration of whether a 'deprivation of liberty' should ensue, particularly when they do not have mental capacity to make decisions about the observations. The observation policy must clearly delineate the different forms of nursing observations possible e.g. close, constant, intermediate, general etc. to avoid confusion among staff members implementing the observation plan. Various dilemmas and management of such dilemmas concerning the use of MCA 2005, MHA 2007 and observation policies has been discussed in this paper. Nursing staff working in both psychiatric and acute hospitals need training in concepts of MCA 2005, MHA 2007 and Deprivation of Liberty Safeguards.

The deprivation of liberty safeguards (DoLS) and adult safeguarding

PurposeThis paper seeks to consider the Deprivation of Liberty Safeguards (DoLS) and, in particular, the extent to which the functions of supervisory bodies can, or should be, performed as part of wider “safeguarding” responsibilities.Design/methodology/approachThe paper reports the views of practitioners, given in response to comments made by the Care Quality Commission.FindingsSome practitioners believe that DoLS and safeguarding functions should be consolidated, and some, that they should remain discrete; most, however, accept that the two functions should work closely together, and also that an understanding of the Mental Capacity Act is important for each; there is a suspicion that DoLS‐activity is greatest where the two functions are kept discrete (and, it is assumed, DoLS practitioners therefore have more to prove); there is also concern about financing, particularly within discrete DoLS services, and, furthermore, some suspicion about the whole business of “safeguarding”; the Neary case continues to cast a long shadow.Originality/valueThis is believed to be the first time practitioners' views have been sought or at least published on this question.

The death of deprivation of liberty safeguards (DOLS)?

PurposeThis paper aims to review the recent Court of Protection case law on deprivation of liberty and consider whether it will help to achieve the right balance between minimising state interference with individuals and families, and protection of the most vulnerable, or risk undermining the core purpose of the system.Design/methodology/approachThe paper reviews the underlying rationale of the Deprivation of Liberty Safeguards (DOLS), the implications of the recent key Court of Appeal judgment in P v. Cheshire West and Chester.FindingsThere are significant potential adverse effects from the judgment in Cheshire, and the way in which it has been interpreted to date, including a risk of undermining the very purpose of DOLS, and a risk of discriminatory effect.Originality/valueThe paper provides a detailed analysis of Cheshire from the perspective of a Court of Protection practitioner, and advice on a practical approach to dealing with the concerns it raises.

Deprivation of liberty safeguards: A human rights issue

John Tingle looks at a new report on deprivation of liberty safeguards from the Care Quality Commission.

Authorisation and safeguards for the deprivation of liberty

Further to deprivation of liberty safeguards (news April 4), hospitals do not need to apply to primary care trusts for authorisation if they want to restrain or restrict people who lack mental capacity.

Deprivation of Liberty Safeguards (DOLS) – a survey exploring the views of psychiatrists

PurposePsychiatrists are among the front‐line professionals involved in the implementation of Deprivation of Liberty Safeguards (DOLS). This paper aims to explore how the safeguards are perceived and practised amongst psychiatrists.Design/methodology/approachThe authors carried out a postal survey among 519 psychiatrists on their views and experiences on DOLS.FindingsA total of 171 psychiatrists (36 per cent) responded to the survey. Nearly three‐quarters of the participants had received DOLS training and 81 per cent of individuals who had training believed that DOLS would protect the rights of vulnerable people. Almost half of both groups agreed that DOLS make a valuable contribution to the provision of necessary care in the least restrictive way possible. The most common concern raised was possible increase in bureaucratic process. Interface between the existing legislations continues to be a grey area for many practitioners with difficulties in interpreting the relevant Code of Practice. In total, 50 per cent of the participants felt DOLS should extend to community placement provisions.Originality/valueThe views and concerns expressed by psychiatrists in this paper are relevant to all professionals working with adults who lack capacity to consent to their care or treatment in any setting. As the process continues to widen, it is important to recognise the issues, encourage use of DOLS process to protect human rights, and to address key gaps in training.

Assuring Freedom to the Free: Jefferson’s Declaration and the Conflict over Slavery

Assuring Freedom to the FreeJefferson’s Declaration and the Conflict over Slavery Jeremy J. Tewell (bio) As Republicans contemplated the future of freedom in a slaveholding country, they sometimes echoed Thomas Jefferson’s fears. In his Notes on the State of Virginia, Jefferson expressed particular concern that the people’s liberty could not be sustained if they removed “its only secure basis.” In his view, this basis was “a conviction in the minds of the people that these liberties are the gift of God.” And he candidly admitted that he trembled for the fate of his country when he recalled that God is just. Because blacks and whites were equally members of the human race, the vagaries of circumstance could someday ensnare whites in the black man’s bondage. “Considering numbers, nature and natural means only,” Jefferson explained, “a revolution of the wheel of fortune, [and] an exchange of situation is among possible events.” In fact, he believed such an event could easily occur through “supernatural interference.”1 Over seventy years later, Charles Sumner informed his southern colleagues in the Senate that “it was the inspiration of Liberty Universal that conducted us through the Red Sea of the Revolution.” This principle also gave the Declaration of Independence “its mighty tone, resounding through the ages.” Shortly thereafter, Sumner stood before a New York audience and endorsed Jefferson’s argument that the liberty of whites depended on the liberty of blacks: “As a man, he stands before you an unquestionable member of the Human Family, and entitled to all the rights of man. You can claim nothing [End Page 75] for yourself, as a man, which you must not accord to him. Life, liberty and the pursuit of happiness—which you proudly declare to be your own, inalienable, God-given rights, and to the support of which your fathers pledged their lives, fortunes and sacred honor, are his by the same immortal title that they are yours.”2 According to Sumner, universal liberty meant all men were justly entitled to their natural rights by virtue of their common humanity. Without that assumption, individual liberty would never be fully secure. If slavery was the beneficent and paternalistic institution that southerners claimed, could it not be applied with equal morality to whites as well as blacks? Republicans repeatedly expressed concern that proslavery arguments were not inherently racial—that they were subject to the mutable prejudices and economic motives of those who made them. Anyone, irrespective of race, could fall victim to the argument that they were “inferior,” that they would be better off enslaved, that their enslavement served the interests of society, or that their subjugation was justified by history and religion. Some Republicans, most notably Abraham Lincoln, held that the only effective safeguard of individual liberty was universal liberty, as expressed in the Declaration of Independence. As long as Americans believed “all men” were endowed with inalienable rights to life, liberty, and the pursuit of happiness, everyone’s liberty would be self-evident, regardless of circumstance. Each person’s liberty would be respected simply by virtue of his or her status as a human being. Conversely, the justifications invoked to exclude a segment of society from the rights of man destroyed the self-evidence of those rights. Having rejected the Declaration’s principle that all men are naturally free, Americans eliminated simple humanity as an unquestionable defense against the oppression. Therefore, by failing to repudiate slavery—and thereby rejecting the universality of human liberty—they made themselves vulnerable to proslavery rationales, especially when they happened to occupy a position of political, social, or economic weakness. This was a major theme in Lincoln’s campaign against Stephen A. Douglas and the introduction of popular sovereignty as the method for determining slavery’s status in the territories. Lincoln’s greatest challenge was to convince northern audiences that simple indifference to slavery was itself inimical to the liberty of whites. The question, as he saw it, was whether liberty would be universal (at least in theory) or whether the justifications for black slavery would [End Page 76] survive to threaten the liberty of all—a danger he pointed to repeatedly, as when he criticized Douglas...

Mired in confusion: making sense of the Deprivation of Liberty Safeguards

There is uncertainty about how to identify deprivation of liberty and the interface of the Mental Health Act and Mental Capacity Act Safeguards. OBJECTIVE To increase current understanding by exploring how an expert legal panel interpret existing case law relating to deprivation of liberty in the clinical setting. Design Clinical vignettes of real patients were used to explore lawyers' thinking about important factors that: (1) distinguish lawful restriction from deprivation of liberty and (2) govern the choice between safeguard regimes when there is deprivation of liberty. The relative importance of such factors was discussed in a consensus meeting using a modified nominal group approach. Participants and setting Six eminent barristers and solicitors with expertise in mental health law attended a consensus meeting after making individual judgements about vignettes describing the situations of 28 incapacitated patients who had been admitted informally to a range of psychiatric inpatient units in South East London. Lawyers attributed key importance to a patient's 'freedom to leave' and suggested that patients' subjective experiences should be considered when identifying deprivation of liberty. CONCLUSIONS Clarification of deprivation of liberty and its safeguards will develop with future case law. Based on current available case law, the lawyers' expert views represented a divergence from Code of Practice guidance. We suggest that clinicians give consideration to this.

The Deprivation of Liberty Safeguards: observations and limitations

The recently introduced Deprivation of Liberty Safeguards (DoLS), which came into force in April 2009, was created to protect the liberty of people lacking capacity admitted to care homes and hospitals in England and Wales. This paper discusses observations and some limitations of the DoLS for protecting the liberty of residents within institutional settings. The regulation, safeguards and recent relevant case law are examined critically. The author suggests that their effectiveness may be limited by the under-recognition of cases, ambiguity and limited safeguards within the statute. The paper concludes that the DoLS legislation has been a positive step towards protecting the liberty of those lacking capacity but that limitations present could undermine the purpose of the legislation.

Figures for deprivation of liberty safeguards show wide variation

Figures for deprivation of liberty safeguards show wide variation

Judgements about deprivation of liberty made by various professionals: comparison study

Aims and methodA group of lawyers, psychiatrists, best interest assessors and independent mental capacity advocates were asked to make binary judgements about whether real-life situations in 12 vignettes amounted to deprivation of liberty. Kappa coefficients were calculated to describe the level of agreement within each professional group and for the total group of professionals.ResultsThere was total agreement between all professionals about deprivation of liberty in only 1 of the 12 cases. The overall level of agreement for judgements made by all professionals was ‘slight’ (κ=0.16, P < 0.01).Clinical implicationsThere are practical difficulties involved in making reliable deprivation of liberty judgements within the Deprivation of Liberty Safeguards (DoLS) legislation. A clear interpretation of deprivation of liberty is necessary to facilitate professionals' decision-making in this area.

The Pragmatic Aspects of Assessing Mental Capacity

The Pragmatic Aspects of Assessing Mental Capacity Ajit Shah (bio) Keywords capacity, competence, mental health law, and assessment My feature article highlighted some of the concerns leading to anomalies between the Mental Capacity Act 2005 (MCA) and subsequent introduction of Deprivation of Liberty Safeguards (DOLS) into the MCA in England and Wales. Thornton provides an elegant and detailed philosophical account of various aspects of the assessment of decision-making capacity. One cannot argue against his line of reasoning. The problem clinicians have is to implement legislation that dictates the definition of decision-making capacity. In day-to-day clinical work, it is not possible to use philosophical arguments in the determination of decision-making capacity because legislation requires it to be conducted in a very specific manner. Thus, there is yet another tension (to add to Thornton’s several tensions) between perfectly reasonable philosophical constructs and the actual legislation that clinicians are required to implement. Almost all of what is described by Banner is accurate. There is little in her commentary that is incompatible with my original paper. Banner argues that much of what is in the DOLS legislation is covered by other existing laws. However, she misses an important point. The issue of depriving someone of their liberty needs to be compliant with the European Charter on Human Rights, and this was the judgement of the European Court in the Bournewood case. Thus, legislation covering deprivation of liberty had to be compliant with the European Charter on Human Rights, and DOLS were the government’s response to this. The government could have taken a different approach and ensured that existing legislation, which, according to Banner, already covered areas that DOLS covers, were made compliant with the European Charter on Human Rights. However, this approach was not adopted and we are left with DOLS. Lucas (2011, 118) states that, “if the Code of Practice were to require that we only assess capacity in cases in which the individual concerned has already been shown to lack capacity then we would be confronted by a double-bind: we cannot assess someone until we have shown that they lack capacity, and we cannot show that they lack capacity until we have assessed them.” He goes on to say that “Such a double-bind would be a serious shortcoming in the guidance, and it is implausible to suppose that it might have been overlooked by the authors of the code” (Lucas 2011, 118). He misses the point that the first statutory principle of the MCA states that decision-making capacity is presumed and should only be assessed if there [End Page 133] is reason to believe that to may be impaired. The MCA goes on to describe potential situations when decision-making capacity should be assessed and Lucas has described those conditions. Thus, it is not a double-bind. By routinely assessing decision-making capacity for admission into a hospital or a care home, there is a clear breach of the first statutory principle of the MCA. Moreover, this subjects an individual to an unnecessary assessment. Moreover, Lucas makes no reference to the individual’s right to liberty under article 5 (1) of the European Charter on Human Rights. This would clearly be breached by unnecessary intrusion in assessing capacity by ignoring the first statutory principle of the MCA. Lucas (2011, 122) further reports that “A retreat from the rather demanding occasionalism of the MCA and associated guidance, in the direction of administratively more convenient procedures that effectively regard capacity as an enduring status, would be an instance of what Lorraine Code terms the objectification of patients (Code 1995, 83–4).” Capacity is not viewed as an enduring status in DOLS. Legislation pertaining to DOLS makes it very clear that the best interest assessor should decide on the duration for which deprivation of liberty should be authorized and no more than 1 year. One factor that will contribute to the decision on the duration for the authorization of deprivation of liberty is the likelihood of change in capacity over time (there are several other factors that would also be considered). For example, a patient with delirium may require DOLS when ill, but such a...

Decision-Making Capacity and the Deprivation of Liberty Safeguards

Decision-Making Capacity and the Deprivation of Liberty Safeguards

The ‘Bournewood Gap’ and the Deprivation of Liberty Safeguards in the Mental Capacity Act 2005

The ‘Bournewood Gap’ and the Deprivation of Liberty Safeguards in the Mental Capacity Act 2005

The Paradox of the Assessment of Capacity Under the Mental Capacity Act 2005

Abstract: The Mental Capacity Act 2005 was fully implemented in England and Wales in 2007. The Deprivation of Liberty Safeguards were introduced into the MCA and fully implemented in England and Wales in April 2009. A range of anomalies and paradoxes in the use of DOLS are described in detail in this paper.

Early implementation of the Mental Capacity Act 2005 in health and social care

This paper discusses the early implementation of the Mental Capacity Act 2005 in health and social care in England. The author examines the research evidence to date, particularly monitoring data from the Department of Health, in order to review the progress made in implementation. The extent to which the Act is achieving its overall aim of facilitating decision-making by people lacking capacity is discussed, focusing on people with dementia. The author concludes that the initial implementation of the Act (and the related Deprivation of Liberty Safeguards) has had only limited effectiveness in facilitating decision-making by people lacking capacity, promoting their best interests and protecting their liberty. Future implementation needs to ensure that the rights of people lacking capacity, particularly people with dementia, are taken more seriously in health and social care and are better protected.

DEPRIVATION OF LIBERTY AND THE MENTAL CAPACITY ACT 2005

E, a young man born in 1990, suffered from tuberous sclerosis, a rare and complex genetic condition, which had caused him to have a severe learning disability and physical difficulties. He has been cared for by F for over ten years, initially under a foster care arrangement under s 20 of the Children Act 1989 and then by way of an adult placement. During this time, it was accepted that E had generally been well cared for by F, was happy in her home, and that he had been treated as a member of her family. However, there had been some disagreement between E's school and F about the management of E's behaviour, which could be very challenging, and in the spring of 2009, a ‘safeguarding adults’ referral had been sent from the school to the local authority, Manchester City Council.1 The local authority moved E into respite care whilst the safeguarding referral was being investigated, with E residing initially at an emergency respite unit and subsequently at a residential unit. A number of strategy meetings were held, at which F was neither present nor invited. Moreover, these meetings did not consider whether the Deprivation of Liberty Safeguards (DOLS) under the Mental Capacity Act 2005 (MCA) were applicable in respect of E's care. F was told that E would not be returning to her home and the local authority subsequently recommended that E remain at his residential unit. An application to the Court of Protection was issued on behalf of G, E's sister, asking the court to determine issues relating to the management of E's care. These included a determination of: E's capacity; the lawfulness of E's placement in the residential unit; the extent of his contact with G and F; whether E had been unlawfully detained in breach of Article 5 of the European Convention of Human Rights (ECHR), the DOLS and/or Article 6 ECHR; and whether his Article 8 ECHR rights had been infringed.