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17th December 2014

And just when you thought you’d heard it all…

Monotone legal conceptJust the very mention of Deprivation of Liberty Safeguards (DoLs) can turn a social care professional into a gibbering wreck. This edifying news will have you running for the straitjacket.

If you are currently supporting vulnerable adults in a care environment, you will not have been able to avoid the legislation around DoLs. In circumstances where an individual’s liberty is deprived, even where this is done with their safety and wellbeing in mind (it usually is!) you need to apply for authorization to do so. This law has resulted in backlogs of cases lodged with local authorities across the land.

A flood of applications

The volume of cases is alarming, since the very provision of care to those who lack capacity to make their own decisions and live independently almost always can be viewed as depriving them of freedom in some or other form.

In one children’s service I manage, we are now steeling ourselves for the raft of applications we need to submit for all of the young people over 16 who live behind our secure gates, which were installed to prevent the local ‘entrepreneurs’ using our car park for a hand car wash business at the weekend. Little did we realise that our attempt to protect and safeguard these profoundly disabled youngsters from random hordes of the public trampling across their gardens was in fact a means of detaining them from free movement.

Of course its only right that we ensure our safeguarding practice is done for the best of reasons, to make sure people who cannot guard themselves from harm are afforded dignified and appropriate safe care. We have seen in recent years how the theory of a secure environment has served to incarcerate and restrain people. It is healthy to assess your level of restriction against the real risk of allowing liberty; that’s why we have risk assessment, to enable us to support freedom in a safe way.

However, a cursory browse of a recent article had me open-mouthed in disbelief.

State Detention

In the case of a person who lacks capacity and whose care provider has been authorized to deprive them of liberty in their best interests, if they should die whilst the order is still in place, the coroner may consider there to be a need for an inquest. This is due to the status of the individual as being potentially in ‘state detention’.

Even where a person dies of natural causes, after a long illness or suddenly but not unexpectedly, this could mean a coroner’s inquest can be called. There need be no suspicious circumstances or violence, as is the usual case for coroner involvement.

A fundamental review of DoLs provisions has been called by the Law Commission, which is set to produce a draft bill in 2017. Meanwhile, coroners are asked to exercise their independent judgement as to whether a death in care of a person subject to a statutory authorization is a death in state detention.

The potential impact of this, even just in terms of cost to already strapped local authorities, is alarming. It could also cause further distress to relatives as it can take up to six months for an inquest to be completed, longer in some parts of the country. And that’s before the potential for a flood of new cases that this situation might prompt.

This is important for all care providers who support those very fragile and vulnerable service users; those elderly, brain injured and profoundly disabled adults whose care needs are often to support them to the end of their life. A handy read (if rather dull) is the guidance paper issued to help coroners in their decision-making.

Read it and try not to weep. Oh, and Merry Christmas!

Ginny Tyler – QCS Learning Disability Expert Contributor


Sarah Riley

Senior Customer Care Executive

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