A county council in the south of England recently received a hefty fine for depriving an elderly 91-year-old lady of her liberty whilst she was living in a care home.
The 91 year-old had constantly remonstrated that she wanted to leave the home but was ignored. No application to restrict her liberty was ever put forward by the homes management or county council representatives.
After winning her appeal, the lady has swiftly moved out of the home to live with her son.
Deprivation of Liberty Safeguards (DoLS) were introduced as part of the Mental Capacity Act 2005 and aim to make sure that people in care homes are looked after in a way that does not inappropriately restrict their freedom. Issues surrounding deprivation of a person’s liberty are also addressed in Article 5 of the European Convention on Human Rights.
It would appear that both representatives from the local council and homes management have not observed the five key basic principles of assessment when considering a deprivation of liberty application. These are:
- A person must be assumed to have capacity unless it is established that they lack capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success.
- A person is not to be treated as unable to make a decision merely because they make an unwise decision.
- An act done or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
This is a very rare case. Very few appeals against deprivation of liberty are dismissed and fewer result in compensation.
It could be argued in this case that the lady in question should have been placed in a respite bed for a short period with the view to a swift discharge back into the community when preparation for discharge had been made.
This case emphasises the importance of adhering to the 5 basic principles of assessment when carrying out a deprivation of liberty assessment, and as such serves as a warning to all care providers. It is essential that care managers undergo the correct training to ensure that they understand the assessment and application process surrounding deprivation of liberty and how to apply this when required to individual Service Users in their homes. If these basic principles had been observed, then the injustice this 91-year-old lady experienced in depriving her of her liberty could have been avoided, and legal action resulting in a fine would not have been the result.
Albert Cook Albert Cook BA, MA & Fellow Charted Quality Institute
Managing Director Bettal Quality Consultancy