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Introduction
The author studied for his degree in mental health nursing between 2006 and 2009, during which time both the Mental Capacity Act (MCA) 2005 and the Mental Health Act (MHA) 2007 (which amended the existing 1983 MHA) came into force. Since qualifying, he has worked in three contrasting settings - on an acute inpatient mental health ward in the NHS, in a nursing home for people with a learning disability in the private sector, and in a specialist care home, caring for people with Huntington's disease and acquired brain injury. He has acted as both MHA lead and MCA lead, and has delivered training on the MCA and on the Deprivation of Liberty Safeguards (DoLS). During this time, he has noted a wide variation in knowledge and awareness by staff of the MCA in general and the DoLS in particular. This corresponds with evidence from across England and Wales from statutory bodies and academics alike.
The Care Quality Commission (CQC, 2013), in its annual survey, reported a worrying lack of understanding by staff of the MCA, the DoLS, and how they relate to the MHA, as well as highly variable levels of training and awareness across England. The British Association of Social Workers (BASW) felt that the DoLS process was overly bureaucratic and failed to improve individuals' rights, while the Law Society claimed that the DoLS process was too complex, and not always used when it should be ( Family Law Newswatch , 2013). The House of Commons Health Committee (HCHC, 2013) cited evidence that care home managers and staff lack confidence in identifying when to make DoLS applications, finding a lack of understanding amongst providers and care staff regarding the meaning of deprivation of liberty in practice, and a resistance to use DoLS due to the complex processes involved. They also noted a high level of legal and procedural errors caused by the complexity of the scheme, coupled with inadequate staff training (HCHC, 2013) - this, some four years after its introduction.
The legal background
In England and Wales, depriving an adult of their liberty without a legal framework in place is unlawful. In recent years, the law governing restriction and deprivation of liberty has undergone several important changes, which have resulted in...