I’ve written about safeguarding before and will again, in 16 years in social care it will always come up as an issue because unfortunately people abuse the vulnerable and vulnerable people are more likely to find themselves in potentially harmful situations. Safeguarding is largely considered to be a reactive process when something has happened but using the understanding and system correctly it can be proactive in preventing abuse.
One aspect of Safeguarding is the Deprivation of Liberty Safeguards (DoLS) which was originally an amendment to the Mental Capacity Act of 2005. There is a great amount of detail in them but essentially the DoLS rules meant that vulnerable people were not unduly restricted or restrained or prevented from normal life choices. There are times when a person needs to be prevented from certain things. For example, a person is at risk of choking if they eat alone and that person will eat any food they can get it would be sensible to lock the kitchen cupboards and fridge unless staff are supporting to ensure the person does not die. It would be a deprivation of liberty to lock a person from their own food in any other situation. The rules also meant that any type of restriction that was needed to go through a legal process and only a judge could make that decision based on evidence. This is a lengthy process which might mean a person is at risk while the decision is being made.
This fundamentally meant that staff who support people couldn’t decide if the restriction was necessary. Who are you to decide? What if the person is physically aggressive? A decision would need to be made by stakeholders including clinicians that any physical support could be used and what type, by trained staff.
However, this legislation is currently under review and will be renamed “Liberty Protection Safeguards” which certainly sounds more proactive and positive in preventing issues rather than responding to them.
One of the issues in the old bill is the fact there is no clear definition of a deprivation of liberty. A major issue like restraint and locking cupboards sound like they are deprivations but they may not be, even though they are… which is confusing, and which is why a legal process occurs. Over the few years since the act was introduced there has been many cases go to court, many of them unnecessarily. The question is, should the decision be taken out of the hands of the courts exclusively and are there others who can make the decision to deprive a person’s freedom of choice to keep them and others safe?
One proposed change to the bill was that care home managers would be able to make certain decisions around it (like locking cupboards or bedroom doors) present that to the court and it would in theory be quickly signed off or not. I believe that there are many who would make these decisions and assess them for the right reasons, unfortunately we can’t trust someone because they are a “manager” or work in the care field, and otherwise we’d have done away with institutional abuse a long time ago.
There was a time when locking the fridge or stopping someone eating sweets all day wasn’t questioned, whether it was good for them or not. Best interest assessments were introduced to decide and advise authorities of a person’s ability to make safe choices, or understand unwise decisions (which is anyone’s right to make) Something like drinking alcohol when on medication is a common issue, who I am to tell someone not to have a beer because of their meds, I can give them good information and highly recommend they don’t but whether it’s a bad idea or not they can decide for themselves. Should the person be assessed as not having capacity to choose then the power moves to the paid people in their lives.
These types of decision have a significant and lasting impact on a person’s life and shouldn’t be taken lightly.
A legal deprivation of liberty is not for life and can last for up to 12 months, usually they are reviewed frequently by professionals who will feed back to the Court of Protection. All appeals will also go to the Court of Protection and an approved Mental Capacity professional will give an independent overview to assess any deprivations and decide on their need.
The current bill certainly needs the current review, as it was new and somewhat reactive to some high-profile cases it is still relatively young and will still have many changes to go through like any piece of legislation does. It’s definitely not an area for trial and error however, it must be approached cautiously. I’ve only mentioned a few of the changes (and vaguely due to no changes being sanctioned just yet) here and will be following closely how the changes materialise and what they mean for vulnerable people and the professionals in their lives. Not everything should go through the courts for analysis, with clear guidance and independent scrutiny these deprivations should be managed and appropriate, but many of the problems in the past were staff making decisions for people and now the change may return an element of that ability to workers. We have spent the last few years and longer giving choice and control back to the people we support and only the court being able to override that, is it a step forward or back?
Looking back over the history of legislation around care and support for vulnerable people, you will see significant changes. Even some laws within the last century appear medieval compared to our treatment of human rights now. Who decides what is right for who is an ongoing debate and the truth is some people are not capable of making choices to protect themselves, although this is a minority. I often hear comments when someone encounters a “crazy” guy and things like “why is he allowed to do that?” or “why doesn’t someone stop him” “Shouldn’t he be in a care home” But imagine if we did that for every person going through a bad phase, or with a mental health problem? No doubt more care and support is needed for many but locking people up isn’t the solution.
There will always be people who use their status and power to abuse the vulnerable, and there will always be bad decisions by staff and the laws are designed to minimise this. This is an area where the decision makers have a huge amount of power over the vulnerable and the risk is incredibly high. Laws evolve alongside people and our understanding of each other, there’s still a way to go.