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An increasing number of vulnerable people receiving care are challenging detention orders (DOL) which can mean they are locked up or kept under restrictive supervision.
Dol orders are intended as a last resort, but campaigners say the increase shows that too often people’s freedoms are being curtailed as a cheaper option.
Dol challenges for adults made to the court of protection in England jumped to 653 in the first quarter of 2024, an increase of 31% in 2023, according to figures from the Ministry of Justice.
Older people with dementia and younger adults with certain severe learning difficulties, as well as those with brain injuries or severe drug or alcohol problems, often have complex care needs. Nursing homes and hospitals sometimes want their care to involve deprivation of liberty, which could mean being accompanied by a care worker at all times, being locked in their rooms or even strapped down.
Mikey Erhardt, a campaigner at the charity Disability Rights UK, said the increase was “extremely worrying”, adding: “(It) shows that years of cuts to public services have led to fast-track approaches that prioritize “quick fixes that erode the human rights of the disabled”.
He said that disabled people deserve care that allows them to live independently. “The growing figures are probably due to care services being stretched too thin, support in the community being extremely difficult to access and the authorities having to reach ever more extreme means under the pretext of keeping us safe Erhardt said. “But there are solutions. Funding must make independent living a reality, with a strong emphasis on user-driven, alternative, non-clinical and culturally appropriate options.”
Social workers believe the increase may be linked to hospital discharges, with some elderly patients moving into nursing homes before fully recovering, rather than returning to their own homes. When a hospital or care home wants to use care that involves deprivation of liberty, this is intended to be supervised by a local authority under a process called safeguards of deprivation of liberty (Dols). Vulnerable people or their families who want to challenge their care plans need to go to the court of protection.
The people who work in social assistance who spoke to the Observer said that the increase in challenges showed that vulnerable people and their relatives were supported by local authorities to fight the order of Dols. However, even the increase of 30% may be a great undercounting of those who are unhappy with their care. Dols applications from hospitals and care homes have grown every year for the past decade and will reach 300,765 in England in 2022-23.
Lucy Series, an expert in the law of mental capacity at the University of Bristol, said that the research of the Law Commission estimated that “a third of people subjected to Dols are objects – they or their families do not want be (in that setting)”.
But when people succeed in challenging care arrangements in court, judges often have to choose the least-worst option because the care system has so few resources, Series said. “When the Dols team (in a local authority) or court is asked to decide: “Is a deprivation of liberty justified?”, they have to choose between the available options. If the options live on the streets or live in a care home with inadequate support, there is almost no choice.” Helen Wildbore, director of the charity Care Rights UK, said that Dols could be a “very useful tool to help ensure people’s rights are protected “.
“But problems with Dols are a very common theme in our line of advice,” he said. “Too often, the people receiving care and their families are not even involved in the process and only hear the authorization after the event.
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“Even when people are involved, it can feel like a rubber stamp exercise. Mental capacity assessments can be flawed by asking stock questions like “Where are you?” when the person hasn’t been there yet. said the name of the nursing home she was transferred to. For such fundamental decisions about people’s freedom, this cannot continue.”
Age UK reported in March that some people were being deprived of their liberty illegally because local authorities did not have the resources to process Dols applications. The backlog was more than 100,000, and around 50,000 people had died while waiting for their application to be processed in 2022-23.
David Broome of Age UK said the system is not working and there are “situations where people could be subjected to overly restrictive care practices because the care home is so stretched”.
The government has promised to replace the Mental Health Act, to give people more choice, autonomy, rights and support if they are detained, and says it will limit how people with learning disabilities or autism can be detained . Dols orders are made under separate legislation, the Mental Capacity Act.
