DOLS are they working?
Radio 4’s “The Report” on 24 November, discussed the findings of a Mental Health Act Alliance Report into the operation of the deprivation of liberty safeguards (DOLS) under the Mental Capacity Act 2005. Roger Hargreaves, the author of the report, found that the safeguards were not fit for purpose and failed to provide the appropriate protection for people deprived of their liberty when they lack capacity.
The programme examined the case of Stephen Neary who had battled for twelve months to have his son, Stephen, returned to his care. Mark Neary found himself in a system described as hugely complex and having major endemic flaws.
The huge variation in use of DOLS around the country raised serious questions as to whether the provisions were correctly understood let alone applied properly. The paperwork is considerable and the provisions so complicated that local authorities are struggling. A spokesman for Hillingdon Borough Council which was involved in the Stephen Neary case confirmed that his staff were highly committed and doing their best but significant training would be required. This confirms what the Mental Health Act Alliance found in that there was a poor understanding as to when it was necessary to invoke the DOLS along with resistance to using DOLS because of widespread anxiety and defensiveness about care standards and practice. There was also a high level of legal and procedural error because the scheme is so complex plus a very low use of the review systems due to lack of information for family and carers.
There is a shortage of legal expertise in this new and complex area of law. Stephen Neary lived in London yet had to get a solicitor from Cornwall to challenge the deprivation of liberty. At odonnells, we have also noted this lack of expertise as we are asked to assist patients from a very wide geographical area. The DOLS system is in stark contrast to the speedy, cheap and patient-friendly Mental Health Tribunal system for those with a mental disorder detained in hospital
The programme concluded with a warning from the Official Solicitor on the landmark Court of Appeal ruling in the Cheshire West case in which odonnells represented the patient. Someone with severe disabilities is not deprived of their liberty if their freedom is curtailed in a way which is necessary for people “like that”. By this standard, there is likely to be a significant drop in the numbers who can challenge restrictions on their lives. It is worth remembering why the DOLS provisions were created in the first place. The case of HL v Bournewood concerned a mentally incapacitated person who was being prevented from returning to his carers. The European Court said this was unlawful because there was no legal framework for such situations. The Cheshire West case raises concerns that we have come full circle and that a patronising and paternalistic view of the mentally incapacitated remains deeply embedded in this country.
If you missed the Report you can go to the BBC Radio 4 website to listen to it again.