Social Care News and Features

Two-thirds of councils need to improve on the Deprivation of Liberty Safeguards (DoLS), an analysis of Care Quality Commission (CQC) assessments have found.

The finding from the Social Care Institute for Excellence (SCIE) came as it sounded the alarm over longstanding delays to the implementation of reforms to the Mental Capacity Act 2005 and the implications of this for the human rights and the care of disabled and older people.

SCIE referenced successive governments’ failure to implement the planned replacement for DoLS – the Liberty Protections Safeguards (LPS) – and update the MCA code of practice, which is now almost 20 years old.

It also warned that the impending overhaul of the Mental Health Act 1983 (MHA) and likely legalisation of assisted dying risked foundering because they were built on the “crumbling” foundation of the MCA.

CQC finds DoLS deficits across most councils

SCIE analysed the CQC’s findings in relation to safeguarding from reports on 54 councils as part of the regulator’s local authority assurance programme, which assesses their delivery of their core adult social care functions.

It found that the CQC concluded improvements were needed to DoLS in 67% of councils, with the most common deficit being in relation to failures to process cases in a timely fashion.

This is a longstanding issue that dates back to the landmark 2014 Cheshire West judgment from the Supreme Court, which widened the definition of what constituted a deprivation of liberty requiring authorisation, as required by Article 5 of the European Convention on Human Rights.

Case delays leaving many unlawfully deprived of liberty

As a result, the number of DoLS applications has ballooned from 13,000 in 2013-14 to 332,445 in 2023-24, when 19% of cases were concluded within the statutory 21-day timeframe and applications took an average of 144 days to complete.

This means many thousands of people are being unlawfully deprived of their liberty in care homes or hospitals at any one time, a point also highlighted by the CQC in its annual State of Care report last year.

Councils cited staff shortages and levels of demand as reasons for the backlog, according to CQC reports, found SCIE.

Failure to implement LPS

The LPS, which was legislated for through the Mental Capacity (Amendment) Act 2019, would replace both DoLS and the parallel system of authorising deprivations of liberty outside of hospitals and care homes through Court of Protection welfare orders.

The reform was intended to streamline the system and thereby help manage the huge and sustained rise in case numbers post-Cheshire West.

However, it was repeatedly delayed by previous Conservative governments, while current care minister Stephen Kinnock has admitted he is “not convinced” about the case for the reform.

SCIE warned that “reform is frozen, yet demand is rising and consequences are escalating”.

Out-of-date code of practice

Also on hold is the updating of the MCA code of practice, which was published in 2007, despite a consultation on changes having taken place in 2022.

Last year, the previous Conservative government said discussions on revising the code were ongoing, but the Labour administration has not set out a policy on the issue since coming into office in July 2024.

The code is widely accepted to be out of date, particularly due to developments in case law and related legislation since 2007, a point highlighted by SCIE in its statement on the MCA.

Mental Health Act reform 

SCIE added that the lack of reform to the MCA posed risks to the impact of changes to the MHA, which are currently going through Parliament, and the likely introduction of assisted dying.

The Mental Health Bill would prevent autistic people and people with a learning disability from being detained for treatment under section 3 of the MHA unless they have a co-occurring psychiatric disorder that warrants hospital treatment.

This is designed to reduce the longstanding issue of autistic people and people with a learning disability being inappropriately detained, often for long periods, in restrictive conditions, without significant therapeutic input.

However, SCIE warned that the reform to the MHA may simply result in autistic people and people with a learning disability being detained in mental health hospitals under DoLS instead.

Replacing MHA detention with DoLS

This argument was made by Dr Lucy Series, associate professor of social care law and policy, in a blog post last year in response to the publication of the Mental Health Bill, setting out reasons why it would not stop the detention of autistic people and people with learning disabilities.

She argued that, currently, people who are eligible for detention under the MHA and are objecting to their treatment in hospital cannot be detained under DoLS instead. However, by removing autistic people and people with learning disability from the scope of section 3 of the MHA, they would become eligible for detention under DoLS, even if they were objecting.

Series added that, under DoLS, the levers available to challenge their confinement were “significantly weaker” than under the MHA.

SCIE made a similar point in its statement, saying: “Without functioning MCA safeguards, these adults risk being transferred from one form of detention to another, without any legal protection or meaningful right of appeal.”

Implications of assisted dying legislation

Though still going through Parliament, the Terminally Ill Adults (End of Life) Bill is expected to become law, introducing a right to an assisted death for people nearing the end of life with a terminal illness who have the mental capacity to make the decision.

However, SCIE warned that “the MCA provides no adequate framework for assessing capacity in such decisions”, adding: “Without reform, the law may enable choices it is not equipped to regulate safely.”

It said there was no guidance governing assessments of capacity to make a decision to end one’s life. It also highlighted the fact that section 4(5) of the MCA stipulates that best interests decisions in relation to the provision of life-sustaining treatment must not be motivated by a desire to bring about the person’s death – though this applies when a person has been found to lack capacity to make the relevant decision.

Recommendations for reform

SCIE made the following recommendations to the government for MCA reform:

• a commitment to implement the LPS, with a roadmap for its introduction;
• publication of an updated MCA code of practice;
• investment in workforce training, supervision and post-qualification development so professionals can confidently and lawfully apply the MCA
• amending CQC assessments of local authorities to ensure that the regulator monitors the application of the MCA itself, not just DoLS.