The Care Quality Commission last week published its second report on the deprivation of liberty safeguards. The safeguards are a legal framework that was introduced in response to the Bournewood case, in which a man with autism was "informally" admitted to Bournewood hospital because of his agitated behaviour.
The man, HL, had very limited communication skills and had not objected to his admission, so was not detained under the Mental Health Act 1983. He was heavily sedated, physically restrained, subject to constant monitoring, and staff refused to allow him to go home with his carers.
However, because he was not sectioned there was no obvious mechanism for his carers to use to try to get HL discharged.
In the domestic courts it was found that HL had not been "detained", and that even if he had been the hospital had acted lawfully. However, the European court of human rights said it was a "fairytale" that HL was free to leave. They ruled that because HL had not been detained in accordance with any legal framework, and there was no appropriate mechanism to challenge this detention in court, HL had been unlawfully deprived of his liberty.
In response to this ruling the government rushed through the deprivation of liberty safeguards as an amendment to the Mental Capacity Act 2005. This created safeguards for people like HL who were deprived of their liberty in hospitals and care homes.
For a detention to be authorised, supervisory bodies had to assess whether it was in the person's best interests. The safeguards also made available advocacy services and a mechanism to challenge detention in the court of protection.
Unfortunately the amendment was drafted and passed through parliament in rather a hurry, with very little time to correct problems that were raised during the consultation. The deprivation of liberty safeguards are notorious among lawyers and health and social care professionals for being overcomplicated, and poorly understood.
One of the biggest problems is that the meaning of "deprivation of liberty" is unclear, and so everybody – from care providers, local authorities and hospitals, right through to lawyers – is unsure of when the safeguards should be applied.
Another issue is that the supervisory bodies who are meant to authorise the detention are often the very same NHS trusts or local authorities who arranged the care in the first place. This can lead to conflicts of interest and a lack of independence from those who are meant to assess whether detention is in a person's best interests.
A good example of this is the case of Steven Neary, a young man with autism, who was detained by Hillingdon council in a care home against his and his family's wishes. The court of protection ruled that the council had failed to conduct adequate assessments of Neary's best interests, and should have referred the ongoing dispute to court.
The safeguards have not been applied as widely as it was initially believed they would be, and there are considerable regional variations in their use. In the Care Quality Commission's latest report they expressed concern that hospitals and care homes were not using the safeguards when they should be.
One of the biggest challenges faced by the commission in monitoring the safeguards is that they no longer assess local authorities' adult social care services, which means there is very little information about whether they are applying them properly.
Another serious area for concern is the very high cost of appeals to the court of protection, which may act as a disincentive to applying the safeguards where they are needed.
The Mental Health Alliance produced a highly critical report in 2010 which suggested there were serious problems with the deprivation of liberty safeguards; and last year declared that they were "not fit for purpose". Despite widespread and growing concern within the sector about the complexity, expense and paucity of protection offered by the safeguards, there are few signs from the Department of Health that they will review them.
Until they do, the protection of one of the most fundamental rights in a democratic society, for some of its most vulnerable citizens, will continue to be a piecemeal and haphazard affair. Guardian Professional.
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