Increasing numbers of vulnerable people in need of care are coming into contact with deprivation of liberty orders (DOLs), which can mean they are locked up or placed under close supervision.
Dol orders are intended as a last resort, but activists say the increase shows that people’s freedoms are too often curtailed as a cheaper option.
According to figures from the Ministry of Justice, the number of adult Dol charges brought before courts in England rose to 653 in the first quarter of 2024, a 31% increase on 2023.
Older people with dementia and younger adults with certain severe learning disabilities, as well as people with brain injuries or severe drug or alcohol problems, often have complex care needs. Nursing homes and hospitals sometimes require their care to involve deprivation of liberty, which can mean being accompanied by a caregiver at all times, being locked in their room or even being tied up.
Mikey Erhardt, campaigner at the charity Disability Rights UK, said the rise was “deeply worrying”, adding: “(It) shows that years of cuts to public services have led to hasty approaches that prioritise quick ‘fixes’ that undermine the human rights of disabled people.”
He said disabled people deserved care that enabled them to live independently. “The rising numbers are likely due to care services being stretched too thin, community support being extremely difficult to access and authorities having to use increasingly extreme means in the name of keeping us safe,” Erhardt said. “But there are solutions. Funding needs to make independent living a reality, with a strong emphasis on user-led, alternative, non-clinical and culturally appropriate options.”
Social workers believe the rise may be linked to hospital discharges, with some older patients moving to nursing homes before they have fully recovered, rather than returning to their own homes. If a hospital or care home wants to use care that involves a deprivation of liberty, this must be checked by a local authority under a process called a deprivation of liberty order (Dols). Vulnerable people or their families who want to challenge their care plans must go to the protection court.
People who work in social care and with the Observer said the increase in challenges showed that vulnerable people and their families were being supported by local authorities to combat Dols orders. However, even the 30% increase may be a gross underestimation of those who are unhappy with their care. Dols applications by hospitals and care homes have grown every year for the past decade, reaching 300,765 in England in 2022-23.
Lucy Series, an expert in mental health law at the University of Bristol, said research by the Law Commission estimated that “a third of people exposed to Dols object – they or their families don’t want them to be (in that care environment)”.
But when people do manage to challenge care arrangements in court, judges often have to choose the least bad option because the care system is so under-resourced, Series said. “When the Dols team (at a local authority) or the court is asked to decide, ‘Is this a justifiable deprivation of liberty?’, they have to choose between the options available to them. If the options are to live on the streets or to live in a care home with inadequate support, there is almost no choice.” Helen Wildbore, chief executive of the charity Care Rights UK, said Dols could be a “very useful tool to ensure that people’s rights are protected”.
“But issues with Dols are a common theme on our advice line,” she said. “All too often, people receiving care and their families are not even involved in the process and only hear about an authorization after the fact.
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“Even when people are involved, it can feel like a rubber-stamp exercise. Mental capacity assessments can be flawed by asking standard questions like ‘Where are you?’ when the person hasn’t even heard the name of the care home they’ve moved to. For such fundamental decisions about people’s freedom, this can’t go on.”
Age UK said in March that some people were being unlawfully deprived of their liberty because local authorities did not have the resources to process Dols applications. The backlog was more than 100,000 and an estimated 50,000 people have died while waiting for their applications to be processed in 2022-23.
David Broome of Age UK said the system was not working and there were “situations where people may have been subjected to overly restrictive care practices because the care home is overstretched”.
The government has promised to replace the Mental Health Act to give people more choice, autonomy, rights and support when they are detained, and says it will restrict the way people with learning disabilities or autism can be detained. Dols orders are made under separate legislation, the Mental Capacity Act.