Assessment Task Three. Critical Reflective Piece.

Reflecting on the possible strengths and weaknesses of the deprivation of liberty safeguards, relating them and making specific reference to relevant experience from your own workplace

Write up to 1500 words (maximum), reflecting on the possible strengths and weaknesses of the deprivation of liberty safeguards, relating them and making specific reference to relevant experience from your own workplace. Note that this complements the work in the case study, and this critical reflective piece should focus more on the broader application to practice, rather than on a single case.

Note that as of April 2023 planned reforms and the introduction of the new liberty protection safeguards have been postponed “beyond the life of the current parliament”. You may wish to make reference to these plans but we have removed the requirement for this since the reforms as planned may well never the see the light of day

Deprivation of Liberty Safeguards (DOLs)

Order 100% Plagiarism Free Essay Now

Assessment Criteria Case Study

Criteria

1. Demonstrates the ability to keep appropriate records and to provide logical, reasoned arguments to support decisions and recommended courses of action
2. Demonstrates the skills of evaluating and analysing complex evidence
3. Demonstrates accurate applied knowledge of the legislation and codes of practice relating to mental capacity and to deprivation of liberty safeguards.
4. Overall coherence of the completed task
5. Demonstrates the ability to use and accurately reference relevant source material.

Assessment Criteria: Critical Reflection

4. Demonstrates the ability to critically analyse the strengths and weaknesses of the deprivation of liberty safeguards regulations and code of practice
5. Demonstrates the ability to learn from experience within own work/service setting.
6. Demonstrates the ability to write clearly and concisely.
7. Please ensure that you maintain confidentiality in your portfolio. To assist this

– Avoid mentioning the name of your agency

– Check all documents to ensure anonymity before copying and use the copies in your portfolio.

– If you have used correction fluids to cover any details, such documents should always be re- copied before submission

– Avoid using any real names or addresses. Age will be relevant but avoid dates of birth

Academic work at Masters Level should show good scholarship. This means that you should use source materials appropriately and accurately and reference them using academic methods. You will be given detailed guidance to the Harvard reference system should you require it.

Possible strengths and weaknesses of the Deprivation of Liberty Safeguards (DOLs)

Order 100% Plagiarism Free Essay Now

This essay would reflect on the possible strengths and weaknesses of the Deprivation of Liberty Safeguards (DOLs), making relevant references from my practice as a social worker and applying them as a Best Interest Assessor (BIA) student.

According to SCIE (2022), Deprivation of Liberty Safeguarding (DOLs) can be described as a legal framework that enshrines a person’s right to liberty, unless under otherwise in accordance with the law, as highlighted by Article 5 of the European Convention for Human Rights (ECHR). The Ministry of Justice (MoJ) (2008) additionally explains that DOLs was introduced to help avert breaches highlighted from the decision of the ECHR in the case of HL v. United Kingdom (known as the “Bournewood” judgment), where a young man with autism and learning disabilities had no capacity to consent to a hospital admission for a particular treatment. His admission was on an informal basis, assumed to be in his best interest under common law. However, his carers challenged the decision, and the outcome of the judgment by the ECtHR was that the admission was a deprivation of HL’s liberty as it was not in accordance with a “procedure prescribed by law,” thereby breaching Article 5(1) of the ECHR and contravening Article 5(4) of the ECHR as there was no quicker means for HL to apply to a court to explore if the deprivation of liberty was lawful (MoJ 2008 1).

Deprivation of Liberty Safeguards (DOLs) were proposed in England and Wales based on the Mental Capacity Act 2005 to protect individuals who are vulnerable in care homes and hospitals and are deprived of their liberty and unable to consent to their care and treatment (Department for Constitutional Affairs 2007). DOLs regulations are designed to train professionals to uphold and abide by the laws if required to deprive vulnerable individuals of their liberty and freedom based on the code of practice, which gives directions on how to apply the procedures if the individual lacks the ability to consent (Richards and Mughal 2015). Although DOLs regulation upholds the right and freedom of individuals without capacity, there are both strengths and weaknesses associated with its implementation.

The Department for Constitutional Affairs (2007) highlights that a mental capacity assessment must be completed to establish if the individual lacks or has the capacity to consent to their placement or treatment. If the individual is believed to lack capacity and is at risk of losing or being deprived of their liberty, an application by the managing authority for authorization must be completed for the authorizing body to conduct a best interest assessment.

One of the key strengths of DOLs is the legal framework which ensures that individuals deprived of their liberty are supported with appropriate care and treatment in a least restrictive manner. Hubbard and Stone (2022) emphasize the need for a thorough assessment of the individual’s capacity and the importance of promoting their best interests, as well as regular reviews of their care plan to prevent unnecessary restrictions on their liberty. This is accomplished through various assessments, such as the Mental Capacity Assessments (MCA) and a best interest assessment, where professionals support such individuals to make decisions about their care or treatment in the least restrictive way before their liberty is deprived (Department for Constitutional Affairs 2007). Reflecting on my practice, I encountered situations where DOLs requests were sent from the managing authority and a best interest assessment was completed, contrariwise, it was identified that the individual had capacity around her placement and care needs. Therefore, there was no need for unnecessary deprivation of her liberty as it would be unlawful; as a result, the DOLs request was not granted. Another least restrictive practice I observed was the use of crash mats and sensor mats instead of bedrails for individuals who are at risk of falls.

MoJ (2008) addresses another strength of how the code of practice provides clear and explicit guidance explaining how to complete DOLs regulations, ensuring procedures are holistic and regularly followed. The regulations further give the individual the right to contest their DOLs by means of an independent review process. This ensures legal processes are available, and vulnerable individuals are supported to seek legal advice if they feel their rights are breached, as demonstrated in the judgment in the case of “P (by his litigation friend the Official Solicitor) (Appellant) v Cheshire West and Chester Council and another (Respondents) and P and Q (by their litigation friend, the Official Solicitor) (Appellants) v Surrey County Council (Respondent) [2014] UKSC 19,” which defines and clarifies the DOLs scope (The landmark 19th of March 2014 Supreme Court Judgment: The judgment and how do we see deprivation of liberty now? 2016).

MoJ (2008) further explains another beneficial part of DOLs as the provision of several protections for the individual’s rights, such as the right to a representative, the right to routine reviews of their care and treatment, and the opportunity to appeal the decision. This has been significant in instances where the individual lacks the capacity to consent to their treatment and care or if the individual’s wishes and feelings have not been sufficiently considered (SCIE 2022). In my practice, I have observed the effective use of DOLs resulting in the protection of individuals’ rights where the outcome of the assessments has resulted in beneficial after-effects for the vulnerable individuals and their families.

Despite the strengths discussed above, there are substantial shortcomings in the DOLs processes and systems that have prompted criticism from professionals, service users, and their families who stated that the DOLs process is bureaucratic resulting in unnecessary delays in obtaining authorizations and, in some cases, individuals being unlawfully detained (SCIE 2020). Buckton, W. (2023, 296–314) further highlighted from their study that DOLs practice is overly complex and riddled with uncertainty, requiring a confusing level of bureaucracy and monitoring. SCIE (2022) continues to explain that the DOLs process encompasses several processes and parties, which can lead to communication breakdowns, misunderstandings, and delays, rendering it no longer desirable for its purpose.

It is my professional opinion that DOLs comes across as problematic in its consistency for professionals to implement the whole process. The assessment process can be ambiguous; for instance, the necessity for various professionals may include the completion of lengthy forms for a robust assessment of the individual’s circumstances (SCIE 2022). Additionally, SCIE (2022) further criticizes DOLs as being overly complicated. Following the ‘Cheshire West’ case, which went to the Supreme Court in 2014, the number of referrals has increased intensely with huge waiting lists due to the reduced threshold for identifying DOLs. This combination of unnecessary bureaucracy and the increasing number of referrals has led to the criticism that DOLs is overly technical and legalistic.

AgeUK (nd) highpoints Resources Constraints as one of the limitations of the DoLS processes and legislation, it further explains the challenges around the effective Implementation of DoLS  as  a result of lack of resources,  trained staff,  funding for alternative care arrangements and time for assessments. The report indicates that in resource -constraint settings, professionals may struggle to provide adequate oversight and support for vulnerable individuals subject to DoLS.  In my practice as a social worker, I often come across situations where vulnerable individuals without capacity to their future living arrangements are placed in a care home by the Local Authority because, it is the least restrictive option and in their best interest, however,  the local authority has to follow-up with the care homes before they complete a referral for DoLS. You then ask the question if it is because the staff are not well trained, or is it because of shortage of staff, or is mere negligence on behalf of staff, because it is a breach of the individual’s right and liberty, and consequently, the unlawful deprivation of such individual of liberty and freedom.

In conclusion, despite the challenges of the DOLs processes, it has made a significant difference in the lives of vulnerable people who are deprived of their liberty in care homes and hospitals, as it has given them a voice. DOLs further safeguards vulnerable individuals from abuse and unnecessary deprivation as well as professionals who support such individuals, which is very important, as our communities and nation are governed by laws. It is therefore crucial that the legal conditions are upheld, as highlighted by Age UK Factsheet 62 (2024), which emphasizes that, anyone involved in the processes of DOLs must pay attention to the DOLs code, which supplements the Mental Capacity Act 2005 Code of Practice and ensures the right processes are followed properly for instance; the requirement for  2  different professionals plus all the relevant parties to complete the 6 assessment to strengthen the DoLS outcome so that it is not a unitary decision or outcome, but a combined and  holistic consensus.

Although DOLs has many benefits, I am not oblivious to the fact that it has its own flaws. Davidson et al. (2023) highlight that, the decision to carry out the capacity assessment comes across as intrusive by itself as so much information has to be gathered on the individual; Conversely, he further explains if there are grounds to consider that, deprivation of liberty is justified with facts around the said decision, then, it is in the best interest of the individual, and all the parties involved must be made aware of the conditions and support around the DOLs processes.

Reference list

• Age UK factsheet 62 (2024) Deprivation of Liberty Safeguards. [online]. Available: pdf (ageuk.org.uk)[Accessed 30^th May 2024]
• Buckton, W. (2022) ‘It just fundamentally reflects the best of social work’: Social Worker’s Practice Understandings and Experience of the Best Interests Assessor role. The British Journal of Social Work, 53 (1) 296–314. Available from  https://doi-org.proxy.library.lincoln.ac.uk/10.1093/bjsw/bcac147  [3June 2024].

• Department for Constitutional Affairs (2007). Mental Capacity Act 2005 Code of Practice. London: The stationary office on behalf of Ministry of Justice.

• Davidson, S., Doyle, S., Campbell, P. (2023) CARRYING OUT AND RECORDING CAPACITY ASSESSMENTS. Essex Chambers. Available from 10334436 (blackboardcdn.com) [Accessed 30^th May 2024)

• Hubbard, R. and Stone, K. (2022). The Best Interests Assessor Practice Handbook. 2^nd Edition. Bristol, UK: Policy Press.

• Ministry of Justice (2008) Mental Capacity Act 2005 Deprivation of liberty safeguards. Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice. London: The Stationary Office.

• Richards, S. and Mughal, A.F. (2015). Deprivation of liberty safeguards (DOLs) handbook. Hounslow: Books wise Publications Ltd.

• Social Care Institute for Excellence (SCIE). (2022). What are Liberty Protection Safeguards? Available from: https://www.scie.org.uk/mca/lps/latest#:~:text=DoLS%20has%20been%20criticised%20for%20being%20overly%20complicated [Accessed 25 May 2024].

• Social Care Institute for Excellence (SCIE) (2022). Deprivation of Liberty Safeguards at a glance. Available from : https://www.scie.org.uk/mca/dols/at-a-glance [Accessed 26^th May 2024]

• The landmark 19th of March 2014 Supreme Court Judgement: The judgement and how do we see deprivation of liberty now? (2016) University of Hertfordshire. Available from: https://www.herts.ac.uk/intellectualdisability/changing-values/articles/the-landmark-19th-of-march-2014-supreme-court-judgement-the-judgement-and-how-do-we-see-deprivation-of-liberty-now, [Accessed: 21 May 2024].

By admin in Blog on January 16, 2025