Disabled people are having their human rights breached because legal safeguards introduced to protect them from being wrongly deprived of their liberty have not been properly implemented, according to a new report.
The Deprivation of Liberty Safeguards (DoLS), introduced in England and Wales in April 2009, allow care homes and hospitals to obtain legal powers to detain residents or patients who lack capacity to make their own decisions, if they believe it is necessary to protect them from harm.
The safeguards are used in cases such as people with dementia whose relatives want them to return home from hospital, or care home residents who have been locked up or sedated without their consent.
About 5,500 people had their cases assessed in the first nine months, with about half resulting in them having their “deprivation of liberty” approved.
The DoLS were introduced to remedy the so-called “Bournewood gap”, where a man with autism was detained by Bournewood Hospital against his carers’ wishes and was unable to appeal until being sectioned under the Mental Health Act. In 2004, the European Court of Human Rights found his rights had been breached.
The new report by the Mental Health Alliance says there is “widespread misunderstanding and confusion” about the new safeguards among health and social care staff, and disabled people’s human rights “are not being adequately protected”.
The report also says there are concerns that relatives of people affected are not being told about the support they are entitled to “to help them navigate this otherwise impenetrable system”.
And it calls on the government to examine the wide differences across the country in the number of DoLS applications to primary care trusts and local authorities, and why government figures show only a third of the expected number of applications across England.
The report says there have been some benefits, such as greater legal protection for some disabled people, and closer external monitoring of some people’s care arrangements.
But it calls for new government guidance that would be more accessible to staff in care homes and hospitals.
Roger Hargreaves, who wrote the report, said the alliance had concerns about the implementation “and the extent to which DoLS are being understood and used by care staff, and also about how much support and advice is being made available to the representatives of individuals affected by DoLS”.
A Department of Health spokeswoman said: “It is unacceptable that before this law came in, care homes or hospitals were able to lock someone up or sedate them without their consent and without that person having any kind of right to appeal or protest.
“Deprivation of liberty is only ever used as a last resort where it is necessary to keep a person safe and all other options have been exhausted.”
She added: “There are variations in the system and we are carefully examining the reasons behind this, and raising awareness of the act.
“As it has already done, where necessary, the department will update its guidance in relation to these important safeguards.”
15 July 2010