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Low take-up sparks fears over liberty safeguards

Mental health organisations are calling for an urgent investigation into why safeguards introduced in England and Wales to prevent people who lack capacity being detained unnecessarily in care homes and hospitals are being significantly under-used.

In April 2009, Deprivation of Liberty Safetyguards (DoLS) were introduced under the Mental Capacity Act 2005, which mean care providers and hospitals must make an application to a council or primary care trust if they want to deprive someone of their liberty.

Under the law, they can make an application to a council or PCT, which have a responsibility to carry out an assessment of the case, if they feel it is necessary, in their best interests or to protect them from harm. But more than a year after they came into force, figures show that around 7,300 applications have been made – just over a third of the 21,000 the government predicted.

A review published by the alliance, which is made up of 75 mental health organisations, says there is widespread lack of understanding of the MCA and care providers do not know when they need to apply for a DoLS authorisation.

Review author Roger Hargreaves said: “There are huge variations between areas of a similar size and demographic make-up, which is the main cause for concern. While it is still early days for these safeguards, we have concerns about their implementation and the extent to which DoLS are being understood and used by care staff, and also about how much support and advice is being made available to the representatives of individuals affected by DoLS.”

The review also says that many of the “best interests” assessors employed by councils, most of whom are social workers, have no previous experience of this type of role and have only had a day’s training in the detail of the law. And Independent Mental Capacity Advocates (IMCA), who can provide advice and guidance for relatives representing the patient, who may themselves be elderly or disabled and struggle to make sense of this complicated field, are being underused.

The review recommends:

• The government needs to look at why so few applications have been made compared to levels expected and why there are such disparities between supervisory bodies and geographical areas.

• The government should issue revised guidance on the meaning of deprivation of liberty which is comprehensible to care providers, and especially to care home staff.

• Refresher training for assessors should focus on improving their knowledge of the legal requirements and should emphasise the importance of full compliance with them.

• Where a friend or family member is selected as representative, the appointment of a section 39D IMCA should be automatic unless the representative positively declines it.

To read Deprivation of Liberty Safeguards: an initial review of implementation go to http://www.mentalhealthalliance.org.uk/resources/DoLS_report_July2010.pdf