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 |
SPOTLIGHT |
Rebecca Gowling analyses whether Care Quality Commission data suggests a rise in unauthorised deprivations of liberty.
Has COVID-19 resulted in the unauthorised Deprivation of Liberty in care settings?
The data obtained by the Care Quality Commission and published in the third issue of their publication titled COVID-19 Insight reports a drop in the number of notifications received from providers in respect of Deprivation of Liberty (DoLS) applications from March – May 2020 suggesting on simple reading of the data that the answer to this question is “yes”.
Notifications from hospitals and adult social care have on average fallen by 65% and 31% respectively compared to the figures for the same period in 2019.
However, in reaching a conclusion as to whether the actions of care homes and hospitals is unauthorised, it is important to look at the recent guidance that has been issued on the subject of DoLS and the other potential contributing factors summarised below.
- most changes to care and treatment would not require a fresh DoLs application;
- existing authorisations could be relied on;
- in respect of the provision of life saving treatment in hospital a person should not be considered as deprived of liberty.
On balance the question of whether or not a decision to deprive someone of their liberty is unauthorised has to be viewed in the round with reference to the facts of each case.
In summary, with the onset of COVID-19, much more flexibility has been introduced in to what was a complex and rigid system to manage the deprivation of liberty.
This flexibility has allowed care providers the room to think more creatively about how to balance restrictions to keep people safe while at the same time ensuring that they are applying the least restrictive principle in line with the Mental Capacity Act.
However, at the same time it has introduced a risk that people could be deprived of their liberty without the proper authorisation. This is a risk that is likely to remain (until the Liberty Protection Safeguards are implemented in April 2022) without further training to help the individuals making these decisions understand the impact of restrictions imposed and whether or not they amount to the deprivation of liberty or not. It is time well spent and reduces the risk of challenge or complaint.
Rebecca Gowling is an Associate at BLM. She can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared in the firm's Care Matters blog.