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22nd October 2015

Reporting Restrictions

I've recently read a local news item about a care home being required by the Care Quality Commission (CQC) to make improvements to protect the safety and welfare of its residents. Much of the focus of the CQC concerns was around the Deprivation of Liberty Safeguards (DOLS) and safeguarding. I looked at the report for some further details and to see what lessons might be learned if you’re facing a CQC inspection. All CQC reports into care homes are of course open to the public to read.

Part of the inspection noted a number of restrictions placed on residents’ movements both in the home and outside. The view was that these people were being deprived of their liberty without an authorisation being in place. Now that was the inspector’s view, only an application to the local authority for an authorisation can determine this. So the message is, if you believe that one or more of your residents is being deprived of their liberty, and they lack the capacity to decide where’s best for them to live, then make an application, or at least seek further advice from the local authority.

I’m sure I’ve said this before in previous blogs, there’s no definition in the Mental Capacity Act or the Deprivation of Liberty Safeguards provisions as to what constitutes a deprivation of liberty! The DOLS goalposts seemed to be moved with the infamous Chester and Cheshire West judgement in 2014. This gave us the test of a deprivation – firstly, is the person free to leave, and secondly are they under continuous supervision or control? However we are still short of a detailed definition of what these words mean. So what can we do to be prepared?

Preparing for Inspection

  • First, get some training and understanding amongst all staff as to what the Deprivation of Liberty Safeguards scheme is all about. Look at the Social Care Institute for Excellence website for ideas at: The inspection report I read said that only the home managers, and none of the staff had any training in this subject. Supervision and team meetings can reinforce this understanding. Interestingly the Law Commission consultation at the moment is highlighting the need for education amongst the workforce in care homes about the Mental Capacity Act.
  • Look at some of the pointers around deciding whether someone is being deprived of their liberty. So if an inspector suggests someone is being deprived of their liberty, at least you can show you have considered this in a logical way. You can make reference to the CQC’s own guidance issued after the Cheshire West and Chester judgement which you can find at: These are difficult judgements, but of course the care provider isn’t making the final decision on this. That’s up to the supervisory body. As ever, recording is a key part of good practice. Have you considered whether this person might be being deprived of their liberty – yes, and here is the written evidence!
  • Next remember DOLS applies to people who have not got capacity. The test is, does the person have the mental capacity to decide where is best for them to live? If someone does have the capacity to decide where they should live, then you cannot use the Deprivation of Liberty Safeguards. The person is free to choose where they should live. If you have concerns about the person’s well-being then you should raise those concerns with other agencies (which will lead me on to the next part of this article about how care homes address safeguarding concerns). So assess the person’s capacity. That assessment should be recorded.
  • Next, care planning is key. Are there care plans in place that show restrictions such as not being able to go to your bedroom in the day? Does it have to be part of the care plan? Can you change some of the restrictions safely that means the person is no longer being deprived of their liberty? Finally any deprivation of someone’s liberty has to be in the person’s best interest. Can you demonstrate for that person, living in a particular care home is in their best interest?
  • Part of trying to demonstrate what is in someone’s best interests is to work with the person’s family. Section 4 of the Mental Capacity Act tells us that if we want to try and determine what is someone’s best interest we should consult with those who are concerned with the care of the person, or anyone that the person wants us to talk to. Working with families where you believe the person might be being deprived of their liberty is evidence of good care planning.
  • You might not have all the principles and processes of DOLS at your fingertips, but at least have them on the shelf. Have you got the up-to-date DOLS policy that comes with the QCS management system?

Links with Safeguarding

The other area of concern in this particular CQC report was around the safeguarding of vulnerable adults. The policy told staff to inform managers of concerns, but not what to do if the manager was not there. Safeguarding adults has to be built into your way of working. Again that comes with training, and having a policy that all staff can refer to.  The home had failed to report safeguarding incidents to the local authority. These incidents came to light during the inspection. Think about how an inspection is based, usually on interviewing staff, and residents, and inspecting records. Overworked staff often complain of the rigours of ensuring records are up-to-date and how this encroaches on time spent with service users. However without those records that you can easily lay your hands on, you have no evidence of appropriate and effective working.

Getting it Recorded

All of these areas concerning vulnerable people involve difficult judgements. Two different people might come to different conclusions. Not all cases are identical. You might make a decision that someone else disagrees with, but the worst thing would be if you have turned a blind eye to the concern. With all safeguarding concerns you need to be able to answer these questions:

  • Is there a concern about the person’s well-being and safety?
  • What is our assessment of the concern?
  • Have we recorded this?
  • Is this a safeguarding matter which we need to refer to another agency for further investigation? If not, why not?

As I write this article the CQC have also just published a national State of Health and Social Care report which shows examples of care providers failing to recognise and record incidents as safeguarding issues. I’ll say more about that report in a future blog.

David Beckingham – QCS Expert Mental Health Contributor


One thought on “Reporting Restrictions”

  1. Shirley Buckley says:

    What happens to my son while these decisions are being made. He has been illegally deprived of his liberty since 2007. Everyone of his human rights has been violated.

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