The Care Quality Commission (CQC) has warned that many residents in care home settings may be unlawfully deprived of their liberty. There has been a significant drop in applications to authorise someone's deprivation, particularly during the first few weeks of the COVID-19 pandemic. Between March and May 2020, DoLS applications fell by 65% for hospitals and 31% for care homes, compared with the same period in 2019.

Government guidance issued in April stated that most of the changes made to care and treatment during the pandemic would not require a new DoLS application. This was because existing authorisations could be relied upon, and additional restrictions implemented had been mitigated by enabling those who were in a period of isolation to access communal areas of the home and have contact with family and friends through virtual technology. We know that in the case of life-saving treatment in hospital, case law had made clear that a person should not be considered deprived of their liberty.

But many providers have not fully understood the existing DoLS framework or have been confused about when an application needs to be made to deprive someone of their liberty. Providers have also delayed taking action in anticipation of the Liberty Protection Safeguards (LPS) which was expected in October and has now been pushed back until April 2022 due to the pandemic.

There is a belief that this may have also increased the risk of people being deprived of their liberty without authorisation. The CQC said that poor understanding of DoLS has remained a fundamental issue, and this raises real concern for people in care home settings who are living without having statutory safeguards in place. Being without a deprivation of liberty safeguards authorisation means the person is without a Relevant Persons Representative (RPR); whose role is to support the person to exercise their rights under the Mental Capacity Act.

Here at Advocacy Focus, we feel that much more needs to be done to support providers, to help them to have a clear understanding of the current DoLS framework and their roles and responsibilities within it. As we move into a new period post lockdown, we will be exploring what more can be done in this space to ensure that people's rights are upheld, and they are actively living the life they want to live.

Read the full article: Community Care, 20 July, ‘CQC warns of risk of unauthorised deprivation of liberty as DoLS reports drop on back of Covid’.

Update 11.9.20

Under the revised guidance, best interests and mental health assessors should work with hospitals and care homes to determine whether a face-to-face visit is appropriate, and follow local visiting and infection control policies. Separate government guidance, published in July, permits care homes to allow visits on a limited basis, based on advice from their local authority’s director of public health.

The revised DoLS guidance also said that independent mental capacity advocates and relevant person’s representatives, who support and represent people subject to the DoLS process, should also carry out face-to-face visits if needed.

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