The Care Quality Commission checks whether hospitals, care homes and care services are meeting government standards. Visit our website at www.cqc.org.uk.
Deprivation of Liberty Safeguards 2011/12
Read the findings from our third annual report on the use of the Deprivation of Liberty Safeguards (the safeguards) in care homes and hospitals throughout 2011/12.
The safeguards aim to protect people’s human rights in circumstances where they cannot consent to their care or treatment.
We have been monitoring the use of the safeguards in hospitals and care homes as part of our broader inspection programme since 2009.
The safeguards are part of the Mental Capacity Act (MCA). They aim to protect people’s human rights in circumstances where they cannot consent to their care or treatment.
The safeguards ensure that people are only deprived of their rights if it is in their best interests and if there is no other form of treatment that could give them the care they need. The safeguards also make sure that those providing care are held responsible for their actions.
Care homes and hospitals must first apply to their supervisory body (PCT or local authority) if they plan to deprive someone of their liberty by doing any of the following.
- Keeping them locked in or restricted to bed rails.
- Physically restraining them.
- Placing them under high levels of supervision.
- Forcibly giving them medication.
- Preventing them from seeing relatives and friends.
The supervisory body undertakes six assessments, including an assessment of whether deprivation of liberty would be in the person’s best interests, and then makes a decision on whether to approve the application.
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 as part of our existing inspection programme, 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.
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 are deprived of their liberty.
In addition to protecting the person’s rights, the safeguards can provide reassurance to staff that they are acting appropriately within the framework of the MCA, in a way that is proportionate to the risk of harm to the person.
The following two examples illustrate this point.
Mrs A has severe dementia and lives in a care home. She makes persistent and purposeful attempts to leave the home.
Staff are concerned for her safety if she was to leave, but also concerned not to restrict her rights and freedom any more than the minimum necessary for her safety.
The care home (managing authority) decides to ask the local social services authority (supervisory body) to consider whether Mrs A should be ‘detained’ in the care home under the safeguards.
The local authority carries out a series of independent assessments (looking at the person’s best interests and medical needs and including the person’s family) and notes that Mrs A’s medication is not being administered correctly – which could be exacerbating her anxiety.
The assessor recommends that the GP should review the medication and look into an alternative medication plan. The local authority agrees to authorise deprivation of Mrs A’s liberty for a short period to allow time for these aspects of the care plan to be changed.
Mr B has learning disabilities, with behavioural difficulties including aggression when frustrated or anxious. He was admitted as an emergency to a local residential care home, after a violent incident at home connected both to his problems and to his mother's mental health issues and substance misuse.
The local residential home was unable to manage his behaviour, so he was placed in a specialist home 50 miles from his home. At this time he lacked capacity to consent to arrangements made by the home for his care.
He was missing his mum, who had been refused permission to visit, and made several attempts to leave the specialist home at bedtime before being brought back by staff in his pyjamas.
The home gave itself an urgent authorisation under the safeguards to deprive Mr B of his liberty and requested a standard authorisation through the local social services authority. This request triggered a specialist assessment of Mr B's best interests.
The best interests assessor found the level of restriction to be disproportionate to the risk and seriousness of harm to Mr B. She decided that this deprivation of liberty could not be authorised as it stood.
She informed the commissioners of the service that a serious dispute between Mr B's mother and the unit should be mediated and, if unresolved, referred rapidly to the Court of Protection.
A formal best interests meeting was convened urgently. As part of this, contact between Mr B and his mother was reinstated, including facilitating visits from his mother to the care home. These visits were and are successful.
A care plan was agreed that worked towards moving Mr B into a supported living setting close to his mother's home and care staff are working to give him increased daily living skills.
Mr B is no longer deprived of his liberty, but looking forward to a more independent lifestyle.
Use of the safeguards is increasing.
Our analysis of data from the NHS Information Centre shows there were 11,393 applications to use the safeguards in 2011/12, a 27 per cent increase on the 8,982 application made in 2010/11 and 59 per cent higher than the 7,157 applications made in 2009/10.
More than half (56 per cent) of all applications received resulted in authorisations being granted. This is similar to the 55 per cent granted in 2010/11, but higher than the 46 per cent granted in 2009/10.
There has consistently been significant regional variation among care homes and hospitals in the way the safeguards are used. Application rates by region have varied over the first three years of their operation. In 2011/12, regional application rates ranged between 17 and 51 per 100,000 population. The average rate for England as a whole was 28 per 100,000.
We are highlighting the following issues:
- The umbrella legislation of the Mental Capacity Act (MCA) is not well understood or implemented in practice.
- The implications of the safeguards in practice are not easy to understand.
- The use of restraint is not always recognised or recorded as such and, because of this, it is not easy to monitor.
- There is wide variation in how local authorities carry out their functions as supervisory bodies.
- It is not clear whether people’s views and experiences of the safeguards are being heard in care homes and hospitals.
The safeguards cannot be understood without reference to the guidance on good practice that is to be found throughout the MCA. The highest priority, therefore, for health and social care services operating in the safeguards system is to improve understanding and practice of the MCA.
This is also true for us both in our role as regulator and in monitoring the use of the safeguards. We recognise that ongoing improvements in our monitoring of the safeguards, and the wider MCA, are vital tools to protect and promote the human rights of vulnerable people in health and social care.
We expect the following:
- Providers and commissioners of services for vulnerable adults must improve their understanding of the MCA and the safeguards.
- Care providers must implement policies that minimise the use of restraint.
- Providers and commissioners of services must establish robust review processes and other mechanisms for understanding the experience of people subject to the safeguards.
In line with our proposed strategic direction over the next three years, we intend to strengthen how we meet our responsibilities on mental health and mental capacity.
Key to this will be making more use of our unique sources of information alongside better analysis of national data sets and strengthening how we works with our strategic partners. Consultation with the public and stakeholders has indicated strong support for this.
- Improve our inspectors’ understanding of the MCA and the safeguards.
- Develop our work with local authorities in their role as supervisory bodies.
- Further develop ways to gather the experiences of people lacking capacity and their friends, families and carers.
- Continue to promote evidence of what works well.
Download the report
You can download the report in the full or alternative format versions below.
View the key findings in our infographic
You can also download our infographic below.