Charity calls for urgent reform to resolve “ongoing human rights crisis” around Deprivation of Liberty Safeguards

The Deprivation of Liberty Safeguards (DoLS) process is not working for an “alarming” number of older people, Age UK has warned.

In a new report, the charity has called for urgent action to resolve what it describes as an “ongoing human rights crisis” around DoLS, to ensure that the rights of older people who lack mental capacity are not ignored.

DoLS provides a set of checks to ensure that a deprivation of liberty is in a person’s best interests, is necessary to prevent harm to them, and is a proportionate response to the likelihood and seriousness of that harm.

The charity said that DoLS is a “crucial” safeguard for older people and others who lack, or are perceived to lack, mental capacity.

However, the report warned: “Despite the paramount importance that we attach to upholding personal liberty in our country and the existence of these protections, DoLS is not working well in practice and for an alarming number of older people is not working at all.

“Chronic under-funding by central Government has led to serious problems in its local administration, leading to an ever-growing backlog that is now so vast it can probably never be eradicated.”

The report noted that almost 50,000 older people have died without the proper legal safeguards being in place. Since 2015/16, the estimated number of incomplete DoLS applications has remained at more than 100,000.

In 2022/23, it took an average of 156 days for a standard authorisation - vastly longer than the statutory timeframe of 21 days.

Age UK said that the problems with DoLS are part of a “wider story of policy neglect and underfunding” impacting social care.

The report noted that difficulty in recruiting staff for DoLS teams in local authorities makes it challenging for local authorities to “effectively manage” the number of DoLS applications they receive, particularly as these continue to rise (there were 11% more DoLS applications in 2022/23 than the previous year).

In response to criticisms of DoLS, the Government planned to replace them with a new framework known as the Liberty Protection Safeguards (LPS), as set out in the Mental Capacity (Amendment) Act 2019.

However, On 5 April 2023, the Government announced its decision to delay the implementation of the Liberty Protection Safeguards ‘beyond the life of this Parliament’.

The Government has announced no further support specifically for DoLS or any further funding to tackle the backlog. On this, Age UK stated: “We urge the Government to take immediate action to tackle the backlog. In the longer term, we support the reform of deprivation of liberty arrangements via the introduction of the Liberty Protection Safeguards (LPS), as long as they deliver human rights protections for older people and others who fall within its scope”.

The report recommended the Government to “clearly communicate plans” for DoLS reform via the introduction of the LPS or other measures, so that local authorities can plan effectively.

Caroline Abrahams CBE, Age UK Charity Director, said: “Personal liberty is part of our birthright and central to our understanding of what it means to live in a democracy, so it is profoundly shocking that so many older people with diminished capacity are living and dying without the proper legal protections for limiting their freedoms being in place.

“As a result, we risk the nightmare scenario that somewhere, there’s an older person locked in their room in a care home, supposedly in their own best interests when, in practice, an objective assessment by a trained social worker would have found this not to be justified at all. We have also heard of cases in which a care home is reluctant to constrain the movements of an older person with dementia who is clearly at risk because they wander, without an order saying that this is legally okay.   

“It is shameful that more than ten years after a House of Lords report said the system for protecting older people with diminished capacity was not fit for purpose, no decisive Government action has been taken to reform it. A waiting list that now stands at over 100,000 cases means that today, the system is in complete disarray. Almost fifty thousand older people have already died without the legal protections in place to authorise the deprivation of their liberty and, unless something changes, those numbers are certain to keep going up."

She added: “The failure of successive governments to grasp the nettle of ensuring there’s a functioning system for safeguarding older people’s liberty if they lose their mental capacity is symptomatic of their broader failure to reform and refinance social care. At Age UK we support reform of the current system, via the replacement scheme the Government proposed a few years ago but then subsequently shelved - provided it delivers effective human rights protections for older people. In the meantime, we believe it is essential that the Government properly funds the system that is in place, until reform can happen. It should also give local authorities the resources to begin to tackle the backlog.

“Older people’s personal freedoms are too important for the system designed to safeguard them to be left to rot, with the prospect of reform constantly being kicked into the long grass.”

A Department of Health and Social Care spokesperson said: “Protecting the most vulnerable is a priority and our current Deprivation of Liberty Safeguards system ensures people who lack the mental capacity to consent can receive the care or treatment they need.

“Backed by an historic funding uplift, we are prioritising efforts to deliver the reforms set out in the Next Steps to Put People at the Heart of Care plan, which include significant investment in the adult social care workforce, technology and support for unpaid carers. All of these encompass support for older people and others who may suffer issues with their mental capacity.”

Lottie Winson