Age UK report finds the system for protecting the fundamental right to liberty of older people with diminished capacity is in urgent need of reform

Almost 50,000 older people have died without the proper legal safeguards being in place[i]

Backlog of cases waiting for authorisation exceeds 100,000 – so big it will probably never be eradicated

In a new report published today titled 'A Hidden Crisis'  Age UK shines light on a scandal impacting some of our most vulnerable citizens: the effective collapse of the system for providing proper legal protection for older people who have lost their mental capacity, often due to dementia, and who are believed to need containment for their own safety.

Age UK totally accepts that sometimes, older people and others who lack the mental capacity to consent to their treatment or care in a care home or hospital may need to be deprived of their liberty so they can receive the input they need and to stay safe. Before this can happen however, the law says a process called the Deprivation of Liberty Safeguards (DoLS) must be followed by the local authority. DoLS provides a set of checks to ensure that the deprivation of liberty is in the person’s best interests, is necessary to prevent harm to them, and is a proportionate response to the likelihood and seriousness of that harm.

The Charity says that DoLS is a crucial safeguard for older people and others who lack, or are perceived to lack, mental capacity. It means that people who, by definition, find it difficult or impossible to advocate for themselves, cannot simply have their right to liberty removed without any checks to ensure this is best for them – a humane and civilized response.

But despite the paramount importance that we attach to upholding personal liberty in our country and the existence of these protections, DoLS is not working well in practice and for an alarming number of older people is not working at all. Chronic under-funding by central Government has led to serious problems in its local administration, leading to an ever-growing backlog that is now so vast it can probably never be eradicated.

Since 2015/16 the estimated number of incomplete DoLS applications has remained at over 100,000[ii], and in 2022/23 126,100 applications went uncompleted. Where applications were completed[iii], in 2022/23 it took an average of 156 days for a standard authorization[iv] - vastly longer than the statutory timeframe of 21 days.

In many cases the decision to constrain the individual’s freedom for their own good would have probably fulfilled the DoLS criteria, but within such a huge number there must be a risk of injustice for some individuals, whose lawful right to liberty will have been inappropriately denied.  The Local Government and Social Care Ombudsman has also identified instances where local authorities have effectively adopted a policy of not even trying to deal with large numbers of low and medium priority applications[v].

The problems with DoLS particularly affect older people – 84% of people subject to a DoLS application in 2022/23 were aged 65 years or over.

Shockingly, in 2022/23, 49,325 people died while waiting for their DOLS application to be dealt with.[vi]

Age UK says that the problems with DoLS are part of a wider story of policy neglect and underfunding impacting social care. The current social care staffing crisis means care homes often do not have enough staff to deliver care in a way that properly reflects the human rights principles set out by the DoLS and the Mental Capacity Act. Care home managers may lack the resources to provide person-centred care and this means that care practices can be more restrictive than they ought to be, and that the minimal restrictions specified in DoLS authorisations are not always adhered to or reviewed. For example, older people may be locked up for long periods in their room in a care home, or not supported to go outside or to leave at all due to lack of staff to accompany them.[vii] There are also concerns that in some instances restless residents are sedated to keep them quiet.

In addition to worries about resource issues there has been significant criticism of DoLS since their introduction in 2009, most notably in a 2014 House of Lords report. It concluded that the ‘legislation is not fit for purpose’.[viii] Others have highlighted a widespread lack of knowledge of the principles of the Mental Capacity Act among care professionals, a lack of training, and inadequate support for individuals or families who want to challenge DoLS decisions.[ix]

In response to these and other criticisms of DoLS, the Government planned to replace them with a new framework known as the Liberty Protection Safeguards (LPS), as set out in the Mental Capacity (Amendment) Act 2019. These plans for LPS were not universally welcomed within social care, partly because of concerns about the lack of resources in care settings and local authorities to implement them. However, in any case, despite plans to introduce the LPS framework in October 2020, the Government announced a new implementation date of April 2022. Then that date was pushed back pending consultation until finally, in April 2023, the Government announced that implementation of the LPS would be delayed beyond the current Parliament – effectively kicking the issue into ‘the long grass’.[x]

Meanwhile, the Government has made no extra funding available to enable local authorities to meet their statutory responsibilities under DoLS and there is no policy in place to tackle the enormous DoLS backlog.

In its new report, Age UK sets out the results of qualitative research carried out with care home staff, representatives of local authority DoLS teams, and families of those affected by DoLS. This research found a marked lack of concern from some professionals and others caught up in the system about the absence of proper DoLS processes being followed on the basis that what really mattered was that the individuals in question were safe. This is understandable, given our beleaguered system of social care and health services, but the Charity believes it is important to challenge this narrative, as infringing liberty can be a ‘slippery slope’ and freedom is such a fundamental right in our society.

Caroline Abrahams CBE, Age UK Charity Director, said:

“Personal liberty is part of our birthright and central to our understanding of what it means to live in a democracy, so it is profoundly shocking that so many older people with diminished capacity are living and dying without the proper legal protections for limiting their freedoms being in place.

“As a result, we risk the nightmare scenario that somewhere, there’s an older person locked in their room in a care home, supposedly in their own best interests when, in practice, an objective assessment by a trained social worker would have found this not to be justified at all. We have also heard of cases in which a care home is reluctant to constrain the movements of an older person with dementia who is clearly at risk because they wander, without an order saying that this is legally okay.   

“It is shameful that more than ten years after a House of Lords report said the system for protecting older people with diminished capacity was not fit for purpose, no decisive Government action has been taken to reform it. A waiting list that now stands at over 100,000 cases means that today, the system is in complete disarray. Almost fifty thousand older people have already died without the legal protections in place to authorise the deprivation of their liberty and, unless something changes, those numbers are certain to keep going up.

“The failure of successive governments to grasp the nettle of ensuring there’s a functioning system for safeguarding older people’s liberty if they lose their mental capacity is symptomatic of their broader failure to reform and refinance social care. At Age UK we support reform of the current system, via the replacement scheme the Government proposed a few years ago but then subsequently shelved - provided it delivers effective human rights protections for older people. In the meantime, we believe it is essential that the Government properly funds the system that is in place, until reform can happen. It should also give local authorities the resources to begin to tackle the backlog.

“Older people’s personal freedoms are too important for the system designed to safeguard them to be left to rot, with the prospect of reform constantly being kicked into the long grass.”

[i] Reference: NHS Digital, Mental Capacity Act 2005, Deprivation of Liberty Safeguards, 2022-23. Accessed here: https://digital.nhs.uk/data-and-information/publications/statistical/mental-capacity-act-2005-deprivation-of-liberty-safeguards-assessments/2022-23#related-links

[ii] As above

[iii] As above

[iv] As above

[v] Local Government and Social Care Ombudsman, Investigation into a complaint against

Staffordshire County Council (reference number: 18 004 809), and Cheshire East Council (19 010 786)

[vi] NHS Digital, Mental Capacity Act 2005, Deprivation of Liberty Safeguards statistics

[vii] CQC State of Care report 2021/22

[viii] House of Lords (2014). ‘Mental Capacity Act 2005: post-legislative scrutiny’

[ix] Law Commission report Mental Capacity and Deprivation of Liberty, 2017

[x] Mental Capacity (Amendment) Act 2019 Draft Impact Assessment