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Deprivation of Liberty Safeguards 2012/13
Read the findings from our fourth annual report on the use of the Deprivation of Liberty Safeguards in care homes and hospitals throughout 2012/13.
What are the safeguards?
The safeguards aim to protect people's human rights in circumstances where they can't consent to their care or treatment.
They are part of the Mental Capacity Act (MCA) and ensure that people who lack mental capacity are only deprived of their liberty if:
- it's in their best interests.
- there is no other way to keep them safe to give them the care or treatment they need.
Care homes and hospitals must first apply to their local authority if they plan to deprive someone of their liberty.
Some factors that have been considered a deprivation of liberty include:
- use of restraint - including sedating someone to admit them to an institution where they do not want to go.
- staff taking complete and effective control over the care and movement of a person for a significant period of time.
- staff refusing to discharge someone from care when relatives and friends have asked.
- restrictions that lead to a person losing relationships with relatives or friends.
- continuous supervision and control of a person that mean they cannot do the things they want to do.
Our role monitoring the safeguards
Since 2009, we have had a duty to monitor the use of the safeguards in all care homes and hospitals in England, and we also provide advice and information on using them.
We check on the use of the safeguards by visiting the places where they are used.
Care services must tell us about the outcome of their application to deprive someone of their liberty.
How the safeguards work in practice
The safeguards must be considered in care homes and hospitals when the restrictions on a person’s freedom, imposed in their best interests, may mean that they're deprived of their liberty.
In addition to protecting the person’s rights, the safeguards can provide reassurance to staff that they're acting appropriately within the framework of the MCA, in a way that is proportionate to the risk of harm to the person.
The case study below shows how the safeguards can work well for people.
Case study: Mr D
Mr D is living in a residential home which has a minibus to collect clients coming to their day centre.
Mr D always wanted to go on the bus and would fight to get on.
The home gave itself an urgent authorisation under the safeguards to stop him doing this, as they believed it was in his best interests.
The best interests assessor, in exploring his situation, discovered that Mr D had been a bus conductor in the past. Because of his dementia, he thought he was again. She suggested that to avoid the need to upset him, even to the point of having to restrain him, Mr D should travel on the bus with an escort to collect the other people.
This focus on Mr D enabled the home to understand his personal history and accommodate this into his care plan. He's no longer prevented from going on the bus, and he isn't restrained in any way: an authorisation isn't needed.
The staff of the home learned to decide best interests holistically, in accordance with the MCA, and to avoid restraint wherever possible.
Use of the safeguards is increasing.
There were more applications than last year but the rate of increase slowed
There were 11,887 applications to use the safeguards in 2012/13 - a four per cent increase on the 11,393 made in 2011/12.
There were more authorisations than last year but the rate of increase slowed
There were 6,546 authorisations compared with 6,339 in 2011/12.
The number of applications for those aged 75 and older has increased sharply since the safeguards were introduced. The reasons for this might include the aging of the population and the high numbers of people living with dementia.
Rates for those aged 18 to 64 have levelled out.
The number of applications varies by region
The number of applications continues to vary by region as it has done since the introduction of the safeguards. Regional differences in the age of local populations may explain some of the variation and we will try to find out why.
Next year, we'll look in more detail at those local authorities which don't seem to authorise many, or in contrast approve very many, applications to use the safeguards.
People's experiences of the safeguards are mixed
We found some evidence of good practice.
However, people are still not always being listened to or involved in important decisions about their lives, or the lives of a relative or friend as they should be.
In many care homes and hospitals, little has changed since our last report
- people subject to the safeguards, their families and close friends may not always be involved as they should be and some people cannot properly use their legal rights and cannot challenge their detention.
- the awareness and understanding of safeguarding seems to be low - 85 per cent of the local authorities we surveyed said that hospitals and care homes had a poor understanding of their role and function and that this was a barrier to good practice.
Care homes and hospitals aren't telling us about the applications they have made
Around two-thirds of care homes and hospitals don't tell us about the applications they've made or the results.
Legally they must, and not doing so removes an important part of the protection for people, their families, friends, and the staff and organisations caring for them. We know less about how and where the safeguards are being used.
Generally, local authorities have a good knowledge of the safeguarding system
Most local authorities run their systems effectively. This year we looked at the work of local authorities in the safeguarding system. We surveyed local authorities and interviewed a sample of those who replied.
The information from our checks, along with data from the NHS Information Centre, shows that some people in care homes and hospitals may continue to be deprived of their liberty without the full protection of the MCA.
Hospitals and care homes must communicate, consult and share information with the person directly affected by the safeguards, their representatives and other close relatives and friends.
Hospitals and care homes must make sure that they tell us about the results of applications to use the safeguards. Organisations can fill in our notification form to give us this information.
Care homes, hospitals and local authorities must work together locally to improve awareness and understanding of the safeguards and the MCA more widely.
We recommend that NHS England includes the effective use of the safeguards in the standard contract for providers.
We encourage Independent Mental Capacity Advocacy (IMCA) services to check how many reviews are requested and make sure they support people to challenge decisions in the Court of Protection.
We also encourage local authorities to make sure they analyse their systems (in particular about meeting statutory deadlines and communicating with people directly affected).
What we'll do next
We'll try harder to find out about the experiences of people who are, or have been, deprived of their liberty, and of their families and friends. We'll do this in two main ways.
Firstly, we'll do more work with local authorities and IMCA services to find out as much as we can about people’s experiences.
Second, we'll build on our work with local authorities and IMCAs to look in particular at the situations of people who've been detained or restrained a number of times over a year or more.
We'll ask hospitals, care homes or local authorities who are authorising detentions:
- are all possible efforts made to reduce restraint?
- are the person’s best interests being identified and championed?
- are people in the right settings?
- are people who challenge a decision in the Court of Protection given enough information and guidance about their rights?
- work with local authorities to improve understanding and application of the MCA.
- embed the MCA in all the aspects of our work where it is relevant, in particular to our key lines of enquiry in our regulation and inspection work.
- improve the knowledge of our inspectors and encourage them to support all the services we regulate.
- update the information available both to inspectors and visitors of our website.
- promote understanding of the safeguards in care homes and hospitals - as part of this, we will develop a survey of awareness and understanding of the safeguards and of the MCA more widely.
Find out more about what we will do next in the full report.
- Last updated:
- 17 June 2014