Elderly patients with dementia “are being illegally locked in their rooms” to make them easier to manage, according to The Daily Telegraph.
The claim is based on a new report looking at how well hospitals and care homes safeguard the human rights of people who cannot make decisions about their own care. It focused on the legal obligations around confining and securing individuals who may be at risk of harming themselves, such as some people with dementia, brain injuries or severe learning difficulties.
In its second annual report on the subject, the Care Quality Commission – England’s regulator of the quality of health and social care – analysed a sample of 1,212 inspection reports on care homes, NHS hospitals and independent hospitals.
The CQC said that although many homes and hospitals have developed good practice around implementing legally required safeguards, some are not meeting their obligations in this area. For example, some homes and hospitals are still confused about the safeguards and when they apply, and many staff have never received any training about them.
In practice, this could mean that people's liberty is removed – for example, they may be made to stay in their rooms – without the legal safeguards being in place.
The Commission also noted that applications to confine people rose to 8,982 in 2011, compared with 7,157 the previous year. Fifty five per cent of these applications were authorised, compared with 46% the previous year. However, this does not necessarily mean that more people are being deprived of their liberty overall, as implied in some papers. It means that when considering depriving someone of their liberty, more homes and hospitals adhere to legal guidelines than previously.
The Deprivation of Liberty Safeguards (often referred to as "the safeguards") came into effect in 2009 as part of a legal framework set out in the Mental Capacity Act 2005. Their aim is to ensure that people who are mentally incapacitated, and therefore unable to make decisions for themselves, have their human rights protected when they are deprived of their liberty.
Depriving someone of their liberty means taking away their freedom to do or live as they wish. For example, this includes:
Measures like these may be considered if someone is thought to be a danger to themselves or to others.
The legal safeguards are there to ensure that these kinds of measures are considered only when it is in the best interests of the person and there is no other less-restrictive way to make sure they get the care and treatment they need.
The safeguards can be used for adults aged 18 or over in hospitals and care homes. People who may need this protection include those with severe learning disabilities, people suffering from dementia and those with brain injuries.
For a person to be deprived of their liberty, the care home or hospital must apply for authorisation to their "supervisory body" (an NHS care trust or a local authority). The supervisory body has to undertake six different assessments, including one specifically looking at whether deprivation of liberty would be in a person’s best interests. It then makes a decision on whether or not to approve the application. In England only primary care trusts or local councils can give permission to take away someone's liberty, so they need to be clear on how the law works.
The report has several key findings, outlined below:
The report does not answer this question, but it notes that about a tenth of care homes in their sample mentioned the use of restrictions or restraints, mostly involving doors being locked or the use of bedrails. In some care homes, it says, these practices are in operation without any consideration of whether they might constitute a deprivation of liberty.
The authors of the report also say they found several instances where doors were locked to make it easier to manage residents' behaviour when short-staffed without any consideration of the legal framework for the deprivation of liberty.
In less than half of NHS hospitals, reference was also made to the use of restrictions or restraints such as bedrails and locked rooms and "rapid tranquillisation". Most of these had been used without considering legal safeguards.
Not all applications for safeguards are approved, and the CQC says there were a number of reasons why authorisation was not granted for nearly half the applications. In the vast majority (81%) of the cases that were turned down this was because the requirement that deprivation of liberty be in the best interests of the person was not satisfied. In the rest of these cases, other requirements – such as the "mental capacity requirement" – were not met.
The CQC also notes that although the number of applications for authorisation rose significantly in 2010/11, the 9,000 applications put forward were still far lower than the 18,600 that the Department of Health had predicted.
The CQC says that tackling the problem is a high priority and it plans to ask councils, healthcare trusts and other organisations to contribute to a pilot study that is being developed to improve the collection of information.
Cynthia Bower, CQC chief executive, said: "The safeguards are vital to ensure that a person's best interests are carefully considered, their needs fully understood, their wishes taken into account and their human rights properly respected."