Almost 30,000 people needing care illegally locked up, restrained or sedated

Some 28,530 people have been wrongfully deprived of their liberty in care homes and hospitals across England, figures reveal.

According to statistics for 2015/16, published by NHS Digital, councils assessed 105,055 applications from care homes and hospitals to deprive a person of their liberty under Deprivation of Liberty Safeguards (DoLS) but rejected almost a third (27 per cent) of the applications.

Since 2009, when DoLS were introduced, care providers have had to seek approval from their local authority if they need to deprive an individual lacking capacity of their liberty, as part of their care. In 2015/16, of the 206,010 people made the subject of a DoLS application (which included the use of restraints and drugs to control behaviour) 51 per cent had dementia.

Second class treatment ‘disgraceful’

Martina Kane, senior policy officer at at the charity Alzheimer's Society said: "It is disgraceful that nearly 30,000 people were wrongfully deprived of their liberty, and in over a quarter of cases practitioners are still locking people in, sedating them, restraining them or otherwise treating them as second class citizens.

"Depriving someone of their liberty should always be a last resort and only ever done in someone's best interests.

“It is crucial that the quality of care provided to people with dementia is improved to ensure that."

Of the DolS applications rejected by local authorities in 2015/16:

- 27 per cent of applications did not meet six assessment criteria

- 43 per cent (12,290) were not granted due to the individual’s circumstances changing

- for 30 per cent (8,495), the individual died before receiving a completed assessment.

By law, care providers ask in advance for authorisation (before they deprive someone), and where it isn’t possible have an urgent authorisation. But in reality, the charity says, the majority of DoLS applications are made when the deprivation is already happening.

Record number of DoLS applications in 2015/16

According to the figures published in ‘Mental Capacity Act 2005, Deprivation of Liberty Safeguards (England), Annual Report 2015-16’, the highest ever number of applications (195,840) were made to councils in 2015/16. This contrasted sharply with 2013/14, when only 13,700 DoLS applications were made.

A spokeswoman for the Alzheimer's Society said giving people with dementia high quality care would reduce the number of DoLS applications.

Cheshire West ruling increased councils' workload

The record number of applications in 2015/16 resulting in councils processing thousands more deprivation of liberty cases in the last two years, is largely due to a Supreme Court ruling in March 2014.

The judgement in the case of P v Cheshire West and Chester Council and P&Q v Surrey County Council (aka the ‘Cheshire West’ case) lowered the threshold for what constituted a deprivation of liberty for people and as a result led to a tenfold increase in applications sent by care providers to councils between 2013-14 and 2014-15.

The ruling clarified an ‘acid test’ for what constitutes a deprivation of liberty, stating that someone who lacks the capacity to consent to the arrangements for their care, is subject to continuous supervision and control and is not free to leave their care setting, is deprived of their liberty, and therefore should be the subject of a DoLS application.

Urgent applications not signed off for months

Once an application has been received, the local authority has twenty-one days to complete all assessments and reach a decision, unless the applications includes an urgent authorisation, which must be completed in seven days.

Despite this, a backlog of applications means some urgent applications are not being signed off for months, rather than the seven days required by law. In 2015-16, the number of applications completed within seven days was 10 per cent (10,000). Some 29 per cent (30,140) were completed within 21 days.

The increase to English councils’ DoLS workload has resulted in more than 40 per cent of applications received in 2015/16 not being signed off by the end of the year. Half of the applications not signed off (51,330) had been awaiting completion for up to 188 days. This includes 21,370 urgent applications.

Over 32,000 people had more than one DoLS application

Some 32,750 individuals had more than one DoLS application in 2015/16. A total of 26,965 people had two applications, 4,445 had three and 1,345 had four or more. This equates to 16 per cent of the total number of people with an application.

The government has asked the Law Commission to come up with a replacement for the DoLS scheme, because of the impact of the Cheshire West ruling which has significantly increased the work of councils.

To read the report ‘Mental Capacity Act 2005, Deprivation of Liberty Safeguards (England), Annual Report 2015-16’ visit: http://content.digital.nhs.uk/catalogue/PUB21814/dols-eng-1516-rep.pdf