New CQC Report Highlights "Lack of Understanding" of Liberty Safeguards and Mental Capacity Act

LONDON, April 5, 2013 /PRNewswire/ --

A new report by the Care Quality Commission (CQC) has highlighted the worrying variation in how local authorities apply Deprivation of Liberty Safeguards under the Mental Capacity Act, and how much of the legislation in place to protect individuals' rights is simply not being understood.

The CQC recently published its third annual report on the use of the 'DoLS' safeguards in UK care homes and hospitals, relating to the period 2011/12, and called for care providers and commissioners of services for vulnerable adults to 'improve their understanding of the Mental Capacity Act and the safeguards'.

Mark McGhee, a specialist human rights lawyer and one of the country's leading experts in Court of Protection matters, said the findings were cause for concern, but regrettably mirrored his own professional experience.

"The Deprivation of Liberty Safeguards ensure that an individual and their family's human rights are protected in circumstances where a member of the family lacks capacity to make a decision or decisions about where they live, their care and/or their treatment," he said. "But in order to work properly they must be applied correctly."

As well as showing an increase in the number of applications to use the safeguards - rising 27 per cent to an annual total of 11,393, with more than half of those (56 per cent) being granted - the report highlighted a number of worrying issues, such as a lack of understanding of the Mental Capacity Act and DoLS safeguards, and the wide variation in how individual authorities observe and implement the safeguards.

"The report says that the umbrella legislation of the Mental Capacity Act (MCA) is not well understood or implemented in practice," said Mr McGhee, a partner with Fentons Personal Injury Solicitors LLP. "An understanding of the MCA is fundamental to ensuring the level and suitability of care for mentally incapacitated individuals that has to be provided by a local authority. It is unthinkable that critical decisions involving vulnerable adults may be being made by professionals who - three years on from the implementation of that legislation - may not understand it."

Another key finding of the report is that the use of restraint is not always recognised or recorded as such, and so becomes difficult to monitor. "It is a grave and serious concern that a vulnerable adult may be restrained whilst under the control of a local authority, without any record of that and as such, with no appropriate or adequate protection," said Mark. "It is of paramount importance that any physical restraint is only ever applied proportionately."

The report also found that over the last three years there has been a consistent and 'significant' regional variation among care homes and hospitals in the way the safeguards are used. It determined that it was unclear as to whether people's views and experiences of the safeguards were being heard in care homes and hospitals, and also that the implications of the DoLS safeguards in practice were not easy to understand.

"Only recently I represented a woman who was kept against her will in a home for people with advanced dementia," said Mr McGhee. "In that case the safeguards were simply not followed, and as such she was in her own words effectively 'held prisoner' by the local authority. If the people in charge had listened to her, to her family or any of her advocates - as the MCA requires - then her ordeal almost certainly would have been avoided."

The report concludes that the highest priority for health and social care services operating in the safeguards system is 'to improve understanding and practice of the MCA'.

"Whilst I agree with the report's findings that this is a priority, it begs the question as to why it has taken more than three years to identify a lack of understanding within some local authorities," said Mr McGhee. "It would seem from this report that some vulnerable individuals may be subject to human rights violations by professionals who really, three years on, should know better. If so, such a lack of understanding is shocking, morally repugnant and a matter of very serious legal concern which requires an immediate response."

Mark McGhee will be discussing the CQC's report on BBC Radio 5 Live Investigates on Sunday, 7 April from 11am.

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