The CQC published
on 26 January its fifth annual report on the use of the DOLS regime, covering the period 2013-4. It also takes the opportunity to reflect upon the past years since the regime came into force, as well as reporting specifically upon practice in 2013-4.
The report paints a distinctly depressing picture in many ways, although there are rays of sunshine, in particular in the examples that are given from practice where DOLS has been used to bring about positive change in a care regime.
The headline statistics as regards the impact of the Cheshire West
decision (taken from an analysis of the HSCIC figures
) are that the number of applications reported by most (but not all) local authorities in the first two quarters of 2014/15 (55,129) already greatly exceeds the number made by all local authorities in 2013/14 (13,220). At the end of September 2014, there were 19,429 applications where a decision was still to be made, while at the end of 2013/14 there were just 359 where a decision was still to be made.
I cannot here do justice to the entire report, but identify a few key points.
As the CQC notes:
'It is both striking and concerning that we have seen the same themes recurring in our reports over the last five years.
- From 2009 until the Supreme Court judgement on deprivation of liberty in March 2014, there have been consistently low numbers of Deprivation of Liberty Safeguards applications compared to the 21,000 initially predicted by the Government. This could suggest, as we highlighted in last year’s report, that providers were not recognising when someone was being deprived of their liberty, so not seeking authorisation
- We continued to see regional variations in application rates. This could indicate a lack of understanding about the Mental Capacity Act (MCA). Over the last five years we have also found a wide variation in practice and training in health and social care organisations.
- Lack of understanding about, and awareness of, the wider MCA continues to be a barrier to good practice.
- Providers are failing to notify CQC when they apply for authorisation to deprive someone of their liberty [as required by Regulation 18 (4A) (4B) and (5) of the Care Quality Commission (Registration) Regulations 2009; these Regulations are not affected by the introduction of the new fundamental standards]. Since 2011, we have received notifications for just 37% of applications to supervisory bodies. This is unacceptable and we will be taking action where this problem persists.'
In respect of 6 areas, the rate of under-reporting would appear to exceed 80% for 2013-4, which is frankly astonishing. Given regional variations in applications for DOLS, it may well be that an partial explanation in respect of areas which appear to do better as regards under-reporting may not be entirely positive – it may be that providers are simply not applying in the first place.
The CQC draws attention to a number of developments, including the Chief Coroner’s Guidance
issued in December 2014. The CQC does not directly comment upon the accuracy of the Guidance, which suggests that inquests are only required where there is an authorisation in place, but notes that:
'Part of the challenge in responding to the Supreme Court judgement is in raising awareness with our partners of the true nature of the Deprivation of Liberty Safeguards. For example, it is not the authorisation that causes a deprivation of liberty, rather the authorisation makes sure that any deprivation of liberty is in the best interests of the individual concerned, can be challenged, and will be regularly reviewed. [Note, for instance, in this regard, the case of Nico Reed, where the coroner held that Article 2 ECHR applied to determine the scope of an inquest in respect of a young man who died whilst in supported living.]
We recommend that local authority leads for the MCA and Deprivation of Liberty Safeguards create good working relationships with their local coroners. This is likely to be of great benefit to ensure that a consistent message is given to providers and so that they can work together in dealing with the considerable extra activity as a result of the Supreme Court judgement.' (Emphasis in original)