Challenges to deprivation of liberty orders in England soar by a third

Growing numbers of vulnerable people receiving care are challenging deprivation of liberty (Dol) orders that can mean they are locked up or kept under restrictive supervision.

Dol orders are meant as a last resort but campaigners say the increase shows that too often people’s freedoms are restricted as a cheaper option.

Dol challenges for adults made to the court of protection in England jumped to 653 in the first quarter of 2024, a 31% rise on 2023, according to Ministry of Justice figures.

Older people with dementia and younger adults with certain severe learning difficulties, as well as those with brain injuries or severe drug or alcohol problems, often have complex care needs. Care homes and hospitals sometimes want their care to involve deprivation of liberty, which could mean being accompanied by a care worker at all times, being locked in their rooms or even put in straps.

Mikey Erhardt, a campaigner at the charity Disability Rights UK, said the rise was “extremely worrying”, adding: “[It] shows that the years of cuts to public services have led to rushed-through approaches that prioritise quick ‘solutions’ that erode the human rights of disabled people.”

He said disabled people deserved care that enabled them to live independently. “The rising figures are likely due to care services being stretched too thin, support in the community being extremely hard to access and authorities having to reach for ever more extreme means under the guise of keeping us safe,” Erhardt said. “But there are solutions. Funding must make independent living a reality, with a strong emphasis on user-led, alternative, nonclinical and culturally appropriate options.”

Social workers believe the rise may be linked to hospital discharges, with some older patients moved into nursing homes before they have fully recovered, rather than back to their own homes. When a hospital or care home wants to use care that involves deprivation of liberty, this is meant to be overseen by a local authority under a process called deprivation of liberty safeguards (Dols) . Vulnerable people or their families who wish to challenge their care plans need to go to the court of protection.

People working in social care who spoke to the Observer said the rise in challenges showed that vulnerable people and their relatives were being supported by local authorities to fight Dols orders. Yet even the 30% rise may be a big undercounting of those who are unhappy with their care. Dols applications by hospitals and care homes have grown every year for the past decade and reached 300,765 in England in 2022-23.

Lucy Series, an expert in mental capacity law at the University of Bristol, said that research by the Law Commission estimated that “a third of people subjected to Dols are objecting – they or their families don’t want them to be [in that care setting]”.

But when people manage to challenge care arrangements in court, judges must often choose the least worst option because the care system has so few resources, Series said. “When the Dols team [at a local authority] or the court is asked to decide: ‘Is this a justified deprivation of liberty?’, they have to choose among the available options. If the options are living on the streets or living in a care home with inadequate support, there’s almost no choice.”Helen Wildbore, director of the charity Care Rights UK, said that Dols could be a “very useful tool to help ensure people’s rights are protected”.

“But problems with Dols are a very 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 authorisation after the event.

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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 stock questions like ‘Where are you?’ when the person hasn’t even been told the name of the care home they’ve been moved to. For such fundamental decisions about people’s liberty, this cannot continue.”

Age UK said in March that some people were being deprived of their liberty unlawfully 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 had died while waiting for their application to be dealt with in 2022-23.

David Broome of Age UK said the system wasn’t working and there were “situations where people might be being subjected to overly restrictive care practices because the care home is very stretched”.

The government has pledged to replace the Mental Health Act, to give people more choice, autonomy, rights and support if they are detained, and says it will limit how people with learning disabilities or autism can be detained. Dols orders are made under separate legislation, the Mental Capacity Act.