Has COVID-19 resulted in the unauthorised Deprivation of Liberty in care settings?

The data obtained by the CQC and published in the third issue of their publication titled COVID-19 Insight reports a drop in the number of notifications received from providers in respect of Deprivation of Liberty (DoLS) applications from March – May 2020 suggesting on simple reading  of the data that the answer to this question is “yes”.

Notifications from hospitals and adult social care have on average fallen by 65% and 31% respectively compared to the figures for the same period in 2019.

However, in reaching a conclusion as to whether the actions of care homes and hospitals is unauthorised, it is important to look at the recent guidance that has been issued on the subject of DoLS and the other potential contributing factors summarised below.

  • The publication of guidance by the Department of Health and Social Care regarding DoLS during the pandemic in accordance with which it was confirmed that:
    • most changes to care and treatment would not require a fresh DoLs application;
    • existing authorisations could be relied on;
    • in respect of the provision of life saving treatment in hospital a person should not be considered as deprived of liberty.
  • Care providers’ focus on finding creative, less restrictive person centred ways of managing people’s care which enhance their well-being and human rights, both in response to COVID-19 and care providers’ poor experience of DoLS orders in the past which, are generally viewed as unnecessarily complex and difficult.
  • A lack of training, exacerbated by COVID-19 and the withdrawal of face to face training resulting in a lack of understanding regarding the impact of restrictions imposed and whether or not they amount to a deprivation of liberty or not.
  • Providers increasingly looking towards the introduction of Liberty Protection Safeguards which were due to replace DoLS in October 2020 as the system for authorising the deprivation of liberty where an individual lacks capacity to consent, now postponed to April 2022.

On balance the question of whether or not a decision to deprive someone of their liberty is unauthorised has to be viewed in the round with reference to the facts of each case.

In summary, with the onset of COVID-19, much more flexibility has been introduced in to what was a complex and rigid system to manage the deprivation of liberty.

This flexibility has allowed care providers the room to think more creatively about how to balance restrictions to keep people safe while at the same time ensuring that they are applying the least restrictive principle in line with the Mental Capacity Act.

However, at the same time it has introduced a risk that people could be deprived of their liberty without the proper authorisation. This is a risk that is likely to remain (until the Liberty Protection Safeguards are implemented in April 2022) without further training to help the individuals making these decisions understand the impact of restrictions imposed and whether or not they amount to the deprivation of liberty or not. It is time well spent and reduces the risk of challenge or complaint.


Gowling_R-148_print

Rebecca Gowling, Associate, BLM
rebecca.gowling@blmlaw.com

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