Annual CQC report on the state of health and social care 2023/2024

There have consistently been concerns over the implementation of the Deprivation of Liberty Safeguards (DoLS) since 2014 and The Care Quality Commission’s (the CQC) annual report (the report) on the state of health and social care 2023/2024 has highlighted numerous ongoing concerns and challenges in relation to the DoLS which, without significant reform, will continue to impact upon the rights of thousands of vulnerable people due  to a lack of legal oversight.

Backlog of DoL applications:

Since the landmark case of P -v- Cheshire West and Chester Council in 2014 which defined  what would constitute a deprivation of liberty, there has been an exponential increase in the number of DoL applications. The CQC reports an 11% increase in the number of DoL applications in 2023/24 to over 330,000 in comparison to 2022/23. This has increased the already significant pressure on local authorities as the supervisory bodies responsible for authorising such applications in processing applications timeously due to under-resourcing, both in relation to funding and staffing levels. 

The report notes that many local authorities are increasing training and recruitment of best interests assessors and prioritising applications but concerns remain that some groups of people may be more adversely affected by being given a lower priority in the process. 

The CQC also highlights its concerns regarding the communication between providers and local authorities – including communication as to when a DoL application may no longer be needed and conversely, when there is an increase in restrictions which would give rise to a higher priority application.

Limited understanding of the Mental Capacity Act 2005 (MCA) and the DoLS

One of the key principles in the MCA 2005 as we know is that people should be cared for in the least restrictive way possible. Within the report are included examples of DoL applications where the CQC has found that capacity assessments and details of restrictions and why these were required were not included in the DoL application.

Also of concern to the CQC was the imposition of blanket restrictions on all residents, despite restrictions not being required for all, due to a lack of staffing and person-centred planning. It would appear that assumptions had been made that as a person lacked capacity in relation to one decision, they also lacked capacity in relation to other decisions resulting in the implementation of unnecessary restrictions, contrary to the principle of ensuring that the least restrictive options for care are used.

Application of the DoLS 

The report also highlighted the lack of consideration of the least restrictive principle for individuals with autism and learning disabilities, and the impact that practices such as seclusion and restraint can have on their wellbeing. In addition, at some acute Trusts, it has been shown that there is a lack of communication, as patients were not informed that restrictions like locked doors, only applied to one person on the ward.

In mental health inpatient settings, the CQC continued to see different interpretations of the interface between the Mental Health Act 1983 and the MCA, with the DoLS being used more frequently in wards for older adults, identifying a clear need for training across services.

People’s experience and involvement 

The CQC touched on the impact that DoL applications have on  people, their friends and families. The biggest concern remains communication, including where people have not been informed that a DoL application is being made, communicating with people whose first language is not English, or who use alternative communication methods. 

Several local authorities reported the increase in challenges to a DoL in the Court of Protection, which is positive on ensuring people’s rights are upheld, but which is in turn having significant resource implications in terms of time for professionals involved and costs for those authorities. 

Report conclusion

The report concludes that whilst some improvements have been implemented by local authorities: 

"Too many people are waiting too long for a DoLS authorisation, while variation in the level of knowledge of staff means that others may not have a DoLS authorisation in place when they need one. For many, the current DoLS system is not providing the vital safeguards they need. After a decade of chronic and widely documented issues, urgent action is required to ensure the system does not continue to fail people in the future.”

Comment

This report and its conclusions will not come as a surprise to those working in health and social care who are well aware of the many challenges the current system is facing. There remains a need to increase and maintain knowledge and understanding of the DoLS and MCA as a whole across services and training remains a key recommendation here. Only through this and increased capacity to ensure DoLS assessments can take place quicker, can people’s rights be upheld effectively. The Liberty Protection Safeguards (LPS) are still on hold, date of implementation remains unclear. The LPS may assist with a number of the challenges but in the meantime, there remains a need to focus on effective implementation of the current regime.