It was only a matter of time before the chronic underfunding of the public sector would begin to have a chilling impact on the most basic of human rights – the right to liberty. Due to the under resourcing of the Deprivation of Liberty Safeguards (DoLS) scheme, there is now a backlog of 126,100 applications awaiting authorisation.
The DoLS is a series of checks that are designed to ensure that a person with diminished mental capacity who is deprived of their liberty – in order that they receive care or treatment – has been deprived of their liberty “in accordance with a procedure prescribed by law”. Age UK has said 84% of DoLS applications in 2022/23 concerned people aged 65 or older. Many have dementia or learning difficulties and the majority live in care homes.
What these figures suggest is that there are a great number of vulnerable, older people who are being unlawfully deprived of their liberty for long periods of time before the relevant checks are carried out to determine if the denial of liberty is in the “detained person’s best interests, is necessary to prevent harm to the person and is a proportionate response to the likelihood and seriousness of that harm”.
The backlog of incomplete applications paints a disturbing picture of where we could be headed in the future, given the consistent lack of action to reform social care and inexorable rise in the number of people in the UK who go on to develop dementia each year. Alzheimer’s Research UK estimates that there are 944,000 people living with the condition. The charity predicts that by the end of the decade the numbers will swell to one million plus.
With the NHS and social care systems in no shape to deliver the person-centred care that someone with dementia needs, it is highly likely that more older people living in care environments will be placed under a Deprivation of Liberty (DoL) order as their condition progresses. When this happens, they will not be free to leave their care home or hospital ward, and they will be subject to continuous supervision and control. Some will be confined to their room, while others may be sedated for their own safety.
Given the current backlog, it is even more likely that such detainments will take place without the proper legal process being followed. This is in contravention of Article 5 of the European Convention on Human Rights which states: “Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law”.
The logical conclusion to all this is that unless something radically alters in the way social care is funded and in the way we care for people with progressive neurodegenerative disorders and developmental delays, the backlog of incomplete DoLS applications will only grow larger, resulting in even greater numbers of human rights breaches, where older people who lack mental capacity are deprived of their liberty unnecessarily and unlawfully.
