By: Jeremy Dixon, University of Bath
Dr Jeremy Dixon considers how the Deprivation of Liberty Safeguards might be experienced by dementia sufferers receiving end of life care
A key dilemma in health and social care has always been finding the correct balance between care and control. Older adults suffering from dementia may be subject to a range of controls whilst in hospitals or residential care. These controls might come in the form of electronic locks on doors, being given psychiatric medication or in individuals not being allowed to go out alone. In the past few years, the government has taken steps to address the legal rights of those subject to such controls. In this blog I consider two issues. First, I will look at how this problem around control has been dealt with in law. Second, I will consider whether these controls are likely to improve the kind of care that people with dementia receive towards the end of their life.
It is a well-established in law that individuals should not be arbitrarily deprived of their liberty. Following a challenge in the European Court of rights in 2004  the Government realised that it had to take steps to make sure that people who the lacked mental capacity to make decisions about their admission to a hospital or care home were not being inadvertently detained there. To make sure that an individual’s ‘right to liberty and security’ under The Human rights Act was met the government introduced a procedure known as The Deprivation of Liberty Safeguards (often referred to as DOLS). This procedure was added to The Mental Capacity Act 2005, coming into effect in 2009.
In practice, The Deprivation of Liberty Safeguards have always been a cumbersome procedure. Hospitals and care homes are expected to identify where they believed that they might be depriving someone of their liberty. In cases where they feel that care cannot be provided in a less restrictive way they are required to ask for an ‘authorisation’ by a ‘supervisory body’ in their area (the local authority or the local health board). The supervisory body then arranges for the person in question to be assessed in order to establish whether a deprivation of liberty is lawful. The assessment itself requires at least two assessors, one of whom must be a qualified best interests assessor and the other must be a doctor. The assessors consider whether a range of conditions are met focussing on the person’s age, mental health, mental capacity, best interests, eligibility (whether they should be detained under The Mental Health Act 1983 instead) and any previously written refusals of treatment. After making their assessment, the assessors report back to the supervisory body who decide whether or not to grant an authorisation. This process currently consists of assessors completing 13 forms (reduced from an eye watering 32 forms at the beginning of 2015) .
Despite the complexity of the above procedure, there has until recently been a lack of clarity about how a deprivation of liberty should be defined. The Supreme Court sought to resolve this in 2014 in response to two challenges to the UK courts . The Court stated that considerations such as the purpose, ‘relative normality’ of placements or whether or not a person was objecting to their living arrangements should not be taken into consideration by authorities deciding whether a deprivation of liberty was taking place. Instead, the Court of Protection introduced an ‘acid test’ which set a new threshold for deprivation of liberty. The ruling stated that a deprivation of liberty was taking place in cases where the conditions stated above were met and
- the person was under continuous and
- was under continuous control and
- was not free to leave.
The use of the DOLS has risen year on year since their introduction. The most recent annual figures state that, 212 individuals per 100,000 of the population aged 85 years of age or over are subject to a Deprivation of Liberty Safeguard (Health and Social Care Information Centre, 2014) . The figures published in 2014 do not cover the period since the Supreme Court judgement which effectively lowered the legal threshold as to what constitutes a deprivation of liberty. This means that we can expect to see a sharp rise in applications over the next year, with local authorities predicting a ten-fold increase .
However, I now want to consider whether the controls are likely to improve the type of care that people with dementia receive towards the end of their lives. A number of criticisms have been made against DOLS since they were introduced. I focus here on some of the criticisms that may have an impact on care provision. The first point I want to raise relates to the clarity of the legislation. In order for a piece of legislation to benefit members of the public they must be able to understand it. However, a number of legal experts have pointed to the fact that the DOLS procedure is not easily understood. For example in a ruling in 2011 Judge Peter Jackson stated that,
“It is a truly unhappy state of affairs that the law governing the fundamental rights and welfare of incapacitated people should be so complex. As this case shows, its intricacies challenge the understanding of professionals working in the field and are completely inaccessible to those for whose benefit the legislation has been devised” (cited in Jones, 2012, p. v) .
Similarly, the House of Lords Select Committee on the Mental Capacity Act (in its post-legislative scrutiny in 2014) commented that DOLS legislation had become so complex that the Government should scrap it and start again . To some extent the Government has recognised the need for reform in this area and has commissioned a review by the Law Commission amongst other things . However, it remains unclear whether individuals suffering from dementia are aware of the legislation and whether they understand it.
Second, I would question whether the DOLS procedure can be applied in a person-centred or sensitive manner by assessors. It strikes me that as a result of the Supreme Court ruling many more people coming to the end of their life are likely to require a DOLS assessment. For example, it is fairly common for a person with advanced stage dementia who is receiving care to require continuous control and supervision and for them to be restricted in terms of leaving the building. Whilst a DOLS assessment might make their detention legal it is less clear whether it will improve the quality of the care that they receive. Furthermore, it is likely that many families would not see the person as being deprived of their liberty, so a DOLS assessment in these circumstances may be experienced as a bureaucratic or insensitive exercise when taking care towards the end of an individual’s life.
DOLS procedures have been introduced by Government to ensure that individuals lacking mental capacity are not unlawfully detained. The procedures put in place are both costly and bureaucratic. However, we continue to know very little about how they are experienced by individuals with dementia and their families. I hope that our proposed research on dying with reduced capacity will enable us to examine how aspects of mental capacity law such as DOLS are experienced by this group.
Dr Jeremy Dixon – Lecturer in Social Work
University of Bath
 This case is known as HL versus UK. See http://www.mentalhealthlaw.co.uk/HL_v_UK_45508/99_(2004)_ECHR_471 for further details.
 The Law Society provides a useful summary at http://www.lawsociety.org.uk/support-services/advice/articles/deprivation-of-liberty/
 Health & Social Care Information Centre (2014). Mental Capacity Act 2005, Deprivation of Liberty Safeguards, England. Annual Report, 2013-14. Leeds: Health & Social Care Information Centre.
 Jones, R. 2012. The Mental Capacity Act Manual. Fifth Edition. London: Sweet and Maxwell.
 HM Government (2014). Valuing every voice, respecting every right: Making the case for the Mental Capacity Act. The Government’s Response to the House of Lords’ Select Committee Report on the Mental Capacity Act 2005. London: The Stationery Office. See https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/318730/cm8884-valuing-every-voice.pdf