What now for deprivations of liberty?
What will the effect of the postponement of the Liberty Protections Safeguards be on local authorities? Local Government Lawyer asked 50 adult social care lawyers for their views on the potential consequences.
SPOTLIGHT |
The Mental Capacity Act is not well understood or implemented in practice, the Care Quality Commission has warned in a report on the operation of the Deprivation of Liberty Safeguards (DoLS).
The report, Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards, revealed that the number of applications to use the safeguards rose 27% in 2011/12 to 11,393 (up from 8,982 in 2010/11).
More than half (56%) of all applications received resulted in authorisations being granted – a similar proportion to 2010/11.
The Commission said it had also found a regional variance in the number of applications for the safeguards. The East Midlands had the highest rate of applications, at 51 per 100,000, and London had the lowest rate at just 17 per 100,000. The average rate for England as a whole was 28 per 100,000.
Some 8,213 applications were made to local authorities (by care homes), while 3,186 applications were made by hospitals to Primary Care Trusts. However, the CQC reported that there was wide variation in how local authorities carried out their functions as supervisory bodies.
The watchdog said:
The CQC called on providers and commissioners of services for vulnerable adults to improve their understanding of the MCA and the DoLs.
“Training in the MCA and the safeguards is still patchy and not always reflected in improvements in practice,” it said. “The use of care plans, recording of incidents and gathering of feedback from staff, people who use services and their relatives all need to improve.”
The report suggested that stronger links between managing authorities and local Independent Mental Capacity Advocate services might be one way of improving staff knowledge.
The Commission added that providers must implement policies that minimised the use of restraint.
It said: “Restraint should always be a ‘last option’….CQC expects to find a greater understanding of the best interests and least restriction principles in the MCA and of the practice implications of the MCA’s provisions on restraint. Staff need to be aware of when lawful restraint might be moving into a deprivation of liberty that requires specific authorisation.”
The watchdog also urged providers and commissioners to establish robust review processes and other mechanisms for understanding the experience of people subject to the DoLS.
“CQC’s inspectors saw examples of friends and relatives being excluded from best interests decision-making, contrary to the requirements of the law,” the report said. “Providers and commissioners must go to greater lengths to consult with relatives and friends as part of the process when using the safeguards.”
David Behan, chief executive of the CQC, said: “If someone has dementia or has a severe learning disability they can still contribute to decisions about their care. If this is done properly then people will receive appropriate care; if it is not done then people can be deprived of their liberty.
“Understanding the Mental Capacity Act and the way it is applied is critical to good quality, safe care. Those providing services, must ensure that their staff understand the Act and what it means for the care and treatment of people.”
A copy of the report can be viewed here.