Huge spike in use of controversial new 'deprivation of liberty' orders despite critics arguing they are not fit for purpose


Jerome Taylor
Wednesday 18 July 2012 17:53

More than 11,000 people were deprived of their liberty last year using controversial new legislation that critics have argued is “not fit for purpose”.

New figures released by the Department of Health reveal how local authorities and hospitals are increasingly relying on so-called Deprivation of Liberty Safeguard (DoLS) orders to detain people for their own safety.

A total of 11,393 applications were made last year - a 27 percent increase on the previous year and a 59 percent rise since the powers were first introduced in 2009.

But there is an enormous discrepancy across the country with some local authorities applying for hundreds of orders and others barely bothering to use the safeguards. The geographical disparity will raise concerns that thousands of people are being detained in hospitals and care homes without any legal checks at all.

DoLs were brought in as a provision within the recent Mental Capacity Act and are used by local authorities, care homes and hospitals to restrict the freedom of people who lack the ability to make key decisions about their lives. They are separate from powers that allow people to be sectioned under the Mental Health Act and are usually brought in when care workers believe someone could be at risk of harm. Elderly people with dementia and people with severe learning difficulties or behavioural problems are often detained using such powers. The idea is that a DoLS provide legal checks to make sure someone is only detained if it is “in their best interests” and for no longer than is necessary.

But DoLs are notorious among lawyers, care and health professionals for being overcomplicated and deeply misunderstood. Both the Care Quality Commission and the Mental Health Alliance have criticised the legislation with the latter describing the entire DoLS system as “not fit for purpose”.

Until recently few outside of the care community had even heard of deprivation orders. But last year The Independent led a media campaign to seek access to a Court of Protection case which concerned a severely autistic man who was removed from his father's care. In April 2011 a court ruled that Steven Neary, a 21-year-old from Uxbridge, had been unlawfully detained by Hillingdon council.

The widespread media coverage surrounding the case is one of the factors behind the significant increase in DoLs as local authorities do more to make sure people only have their freedom restricted with adequate checks. But while some local authorities use the legislation to detain people, others seem to hardly ever use it.

A breakdown of the figures show that whilst a local authority like Leicester made more than 400 applications last year, Reading only made one for the whole year whilst Hull made just three.

Lucy Series, a PhD student at Exeter University who studies DoLS, says the latest figures show a worrying discrepancy in how the orders are used.

“To give you a sense of the scale of these differences, if Leicestershire's application rate were extrapolated out to the whole of England, we'd be seeing 37,200 applications per year,” she said. “If Reading's was, we would see 341 applications per year. These differences suggest there is a postcode lottery in the protection of right to liberty for disabled adults.”

Of the 11,000 applications made last year, just over half (56 percent) were granted leaving question marks over what happened to the care arrangements for the 44 percent that were waved through. The vast majority of applications (58 percent) were made for elderly people over the age of 74 – most of whom will suffer from some sort of dementia related illness. Given Britain's ageing population it is likely more and more DoLS will need to be granted in the coming years.

However another criticism of the DoLS legislation is that the orders can only be challenged in the Court of Protection, a costly exercise that prices most families out of taking such a route. Some professionals have begun urging the Government to adopt the tribunal system used to challenge and monitor those who are sectioned under the Mental Health Act which is widely believed to be cheaper and more efficient. Earlier this year The Independent revealed how appeals against deprivation of liberty orders in the Court of Protection had tripled in the wake of the Neary scandal, prompting concerns that the already struggling court system could be overwhelmed.

Asked whether they had confidence in the DoLS system, a Ministry of Justice spokesman said: “The Government is confident the law gives care providers, supervisory authorities, vulnerable people and their families the power and protection they need. A decision to apply for a deprivation of liberty safeguard ultimately rests with care providers based on individual circumstances."

A spokesman for Reading Borough Council gave no reason for why they had only authorised one DoLS last year but added: "We advise and support care homes to support vulnerable people, and only use DoLs as a last resort measure. We’d like to emphasise that the safeguarding of vulnerable people is of the highest priority for Reading Borough Council and our partners.”

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