April 12, 2013
A new report by the Care Quality Commission (CQC) has highlighted the worrying variation in how local authorities apply Deprivation of Liberty Safeguards under the Mental Capacity Act, and how much of the legislation in place to protect individual's rights is simply not being understood.
The CQC recently published its third annual report on the use of the 'DoLS' safeguards in UK care homes and hospitals, relating to the period 2011/12, and called for care providers and commissioners of services for vulnerable adults to 'improve their understanding of the Mental Capacity Act and the safeguards.'
, a specialist human rights lawyer and one of the country's leading experts in Court of Protection matters, said the findings were cause for concern, but regrettably mirrored his own professional experience.
"The Deprivation of Liberty Safeguards ensure that an individual and their family's human rights are protected in circumstances where a member of the family lacks capacity to make a decision or decisions about where they live, their care and/or their treatment," he said. "But in order to work properly they must be applied correctly."
As well as showing an increase in the number of applications to use the safeguards - rising 27 per cent to an annual total of 11,393, with more than half of those (56 per cent) being granted - the report highlighted a number of worrying issues, such as a lack of understanding of the Mental Capacity Act and DoLS safeguards, and the wide variation in how individual authorities observe and implement the safeguards.
"The report says that the umbrella legislation of the Mental Capacity Act (MCA) is not well understood or implemented in practice," said Mr McGhee, a partner with Fentons
Personal Injury Solicitors LLP
. "An understanding of the MCA is fundamental to ensuring the level and suitability of care for mentally incapacitated individuals that has to be provided by a local authority. It is unthinkable that critical decisions involving vulnerable adults may be being made by professionals who - three years on from the implementation of that legislation - may not understand it."
Another key finding of the report is that the use of restraint is not always recognised or recorded as such, and so becomes difficult to monitor. "It is a grave and serious concern that a vulnerable adult may be restrained whilst under the control of a local authority, without any record of that and as such, with no appropriate or adequate protection," said Mark. "It is of paramount importance that any physical restraint is only ever applied proportionately."