On Tuesday 2nd October, the NHS published 2017-18 official DoLS statistics, and they tell a sometimes concerning picture about the protection of people’s human rights here at home.  The Mental Capacity Act 2005’s Deprivation of Liberty Safeguards (DoLS) set out the current legal framework to ensure that people assessed as lacking capacity to make decisions about their care/treatment/residence have their arrangements, which may amount to a “deprivation of liberty” decided in a way which ensures their best interests. Consideration of people’s human rights should be of paramount concern; especially when we know that other laws such as the MCA should be compatible with the Human Rights Act. Indeed the MCA and subsequent DoLS were passed to fill a gap in the law which enabled some people’s liberty to be restricted without due process.

The NHS report looks at a number of aspects of DoLS activity including over the last year. This includes information about the person for whom a DoLS application was received, the number of applications completed/not completed and the outcome of these and a breakdown of the data by local authority.

 What does this data tell us?

  • Over ¼ million DoLS applications in England (227,400), and almost three quarters related to people aged 75 and over. This is up 4.7% on the previous year (although the rate of increase is slowing compared to previous years).
  • 181,785 DoLS applications were completed i.e. less than received (although this has increased by 19.6% from 2016-17) and 61.1% were authorised. This means almost 40% were not authorised, most due to a change in circumstances, although 5,740 were due to the assessment criteria not being met.
  • The reported number of cases that were not completed as at year end was 125,630. This was up from 108,545 the previous year.
  • The average length of time to complete a DoLS application increased from 120 days in 2016-17 to 138 days in 2017-18. Importantly, the number of applications completed within 90 days increased by a fifth.
  • The demographics section of the report is limited, it references age, gender and ethnic origin; but there doesn’t appear to be information about how many people with dementia, learning disabilities, etc., where subject to DoLS (note we have lodged an FOI on this.)

Where do human rights come in?

Human rights should be at the centre of all DoLS processes and reporting. Depriving people of their liberty is of course about the right to liberty (protected in Article 5 of our UK Human Rights Act). This states that liberty can only be restricted in a certain set of circumstances, for example in relation to mental health/capacity issues. When liberty can be restricted this must be authorised by a law (such as the MCA), and a set of safeguards need to be in place to ensure this is a fair and proportionate restriction. The question should always be (and too often it isn’t), “is this the least restrictive option to keep this person/or others safe?”

Under the right to liberty, safeguards should be met when undertaking a DoLS in order to make it legal, including speedy and independent review of decisions to restrict liberty. Looking at some of the NHS statistics raises questions; for example, the average length of time to complete a DoLS assessment is up annually by 18 days.

Going further than the right to liberty, DoLS assessments, if not done in a rights respecting way can also engage (and sometimes breach) other human rights. Key amongst these is a person’s right to respect for private and family life and home and correspondence (protected in Article 8 of the HRA). This covers people’s right to be involved in decisions about themselves, maintaining relationships with others and protecting well-being. With a DoLS process taking 138 days, as outlined in the statistics, could lead to a situation where the individual is isolated from family, friends for a prolonged period of time. Again this right can be restricted in some circumstances but the process for doing that must be rights respecting, i.e. it must be lawful, for a legitimate reason set out in the right itself, and importantly it should be proportionate. In DoLS decisions we’ve come across it is questionable whether all three criteria are met; but most frequently it is the proportionality issue that raises the biggest questions. The longer the process takes, the more concern there is about how well, or not, the system is respecting people’s human rights.

And of course, there is the right to non-discrimination (set out in Article 14 of the HRA). Why is the decision to deprive someone of their liberty being made? Is it objective and reasonable, or it is based on discriminatory reasons, such as a person’s learning disability, their mental health, their dementia diagnosis, etc.?

The NHS report also finds a wide variation in the number of DoLS applications across local authorities. Large discrepancies in demographically similar local authorities leads to questions over whether all necessary applications are happening to uphold people’s rights or whether in some places there are numbers of people being informally deprived of their liberty- unlawful under the HRA and the MCA.

The need for change

Clearly, there is a lot to discuss and a full analysis of these figures from a human rights basis is required to understand precisely what these statistics mean. What we do know, however, is that human rights must always be the starting point when commissioning, managing, delivering, arranging, monitoring or reviewing care and support. Added to this, there are wider questions being raised about the law itself and whether the DoLS provide the best framework to respect and protect people’s human rights. At BIHR’s we’re involved with work looking at very new government proposals to change the law, which is currently being debated in the House of Lords. You can read our blog on the proposed law here, and our parliamentary briefings on mental capacity law here.

Our work at BIHR is showing that when people with mental health and/or capacity issues, their advocates, and staff understand and use human rights, this can deliver better, more dignified approaches to issues such as restrictions on liberty. Check out our practitioner blog series here, sharing stories from staff and advocates on how they have used human rights to ensure rights respecting care and treatment for people with mental capacity and/or mental health issue. You can find out more about human rights in relation to mental capacity and mental health in our toolkits for people using services and advocates here: and here, in addition to our toolkit for staff to support the making of rights-respecting decisions.

Finally, if, like us, you believe in human rights for everyone, join with us in Celebrating 70 years of universal human rights. There is much to be done to make human rights real in people’s lives, so we must protect and use the framework for change.

http://www.celebratehumanrights.uk/