Less than expected use of new laws to protect people who may need to be deprived of their liberty

Hospitals and care homes are making less than expected use of new measures designed to protect people unable to consent to their care or treatment, says a report out today.

Deprivation of Liberty Safeguards were introduced by law on 1 April 2009 to provide a legal framework for depriving someone of their liberty where they are unable to give informed consent regarding their care.

Mental Capacity Act 2005, Deprivation of Liberty Safeguards Assessments (England) First report on annual data, 2009/10 provides the first official information about use of the new arrangements in the first year following their introduction.

It includes information about the number of authorisations to legally detain a person in a hospital or care home under the new system as well as information about the characteristics of the people on whose behalf authorisation requests were made.

The report includes regional breakdown of the figures. Among its findings, it shows:

  • The total number of applications made was much lower than expected1 (7,160 in England compared with the number predicted for England and Wales1 which was around 21,000).
  • Although the number of successful applications resulting in an authorisation to deprive a person of their liberty was lower than expected (3,300 in England compared to the 5,000 predicted for England and Wales1), a much higher percentage of applications than expected were successful (46 per cent compared with the predicted 25 per cent1).
  • The majority of applications (3,645 out of 7,160) were for a person who lacked capacity because of dementia.
  • About four per cent of applications that were not authorised involved situations where the person was nevertheless judged as being in a situation that amounted to a deprivation of liberty. In these cases the hospitals and care homes could be acting illegally if the person was not swiftly cared for or treated in less restrictive circumstances.

The full report is at www.ic.nhs.uk/pubs/mentalcapacity0910

The Department of Health's expected figures are in the Impact Assessment of the Mental Capacity Act 2005 deprivation of liberty safeguards to accompany the Code of Practice and regulations, which can be downloaded from: http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsLegislation/DH_084982

ENDS

Notes to editors

  1. The NHS Information Centre is England's authoritative, independent source of health and social care information. It works with more than 300 health and social care providers nationwide to provide the facts and figures that help the NHS and social services run effectively. Its role is to collect data, analyse it and convert it into useful information which helps providers improve their services and supports academics, researchers, regulators and policymakers in their work.
  2. The NHS Information Centre also produces a wide range of statistical publications each year across a number of areas including: primary care, health and lifestyles, screening, hospital care, population and geography, social care and workforce and pay statistics.
  3. The Mental Capacity Act Deprivation of Liberty Safeguards (MCA DoLS), which came into force on 1 April 2009, provides a legal framework to prevent the unlawful deprivation of a person's liberty occurring and were introduced into the Mental Capacity Act 2005 through the use of the Mental Health Act 2007.
  4. The arrangements protect people who are vulnerable to abuse and poor care whilst residing in a hospital or care home (across statutory, independent and voluntary sectors) through the use of a standardised assessment and authorisation process. They protect those who lack capacity to consent to arrangements made for their care and/or treatment but who need to be deprived of their liberty for their own best interests to protect them from harm. They also offer the person concerned the right to challenge any decision to deprive them of liberty, a representative to act for them and protect their interests and the right to have their status reviewed and monitored on a regular basis.
  5. A standard authorisation for a person to be deprived of their liberty requires an application within the legislation. The process applies to people aged 18 and above who suffer from a mental disorder of the mind (such as dementia or a profound learning disability) and who lack capacity to give consent to the arrangements made for their care and / or treatment. The safeguards cover people in hospitals and care homes registered under the Care Standards Act 2000. An assessment is initiated by a managing authority, which is either a care home or a hospital. Managing authorities submit a request for an authorisation to a supervisory body, who are local authorities and a primary care trust (PCTs). Standard authorisation assessments where no urgent authorisation is already in place must be completed (processed) within 21 days. And where an urgent authorisations already exists must be completed within seven days or, in exceptional circumstances, within 14 days if an extension is granted by the supervisory body.
  6. The outcome of a completed assessment is that it is either granted or not granted. If it is granted, the person is subject to an authorisation and is deprived of their liberty. A single authorisation may be granted for any length of time up to a year. A person can have multiple authorisations requested which, due to changing circumstances, may result in different outcomes.
  7. An authorisation may not be granted for a number of different reasons. It could be that since the initial request for an authorisation was made the circumstances surrounding the person have changed.
  8. For further information about DOLS go to http://www.dh.gov.uk/en/SocialCare/Deliveringadultsocialcare/MentalCapacity/MentalCapacityActDeprivationofLibertySafeguards/index.htm
  9. The data is collected by Primary Care Trusts (PCT) and Local Authorities (LA's) and reported at England, Strategic Health Authority (SHA) and Government Office Region (GOR) levels to preserve persons confidentiality.
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