I was reading articles about DOLS on the web here, as you do, and I saw a comment by David Harries (August 13, 2014 at 12:54 pm) who said, “I also think that Governments (England and Wales) have not grasped the severity of the issue. The workload has been dumped on Councils and their employees.”
And I thought that was interesting and it brought to mind a comment made to me by a woman who had been giving training to us, who had come all the way from London (thus lending her authority). We were discussing the severity of the issue of DOLS and she said that as far as she believed, the Department of Health was fully aware, knew DOLS wasn’t being properly implemented, knew it was under-resourced, but weren’t in a rush to do anything about it. The DoH knows it’s broken but it serves its purpose and reforming it is not really a priority.
Why would this be? As we know, the Deprivation of Liberty Safeguards came about after the UK Government got spanked in 2004 by the European Court of Human Rights for being in breach of Article 5 of the European Convention on Human Rights – that is the right to liberty. The British state was simply keeping people in detention for years without any due process on a welfarist basis.
With DOLS now in place, the UK Government can show to the European Court that it now has a mechanism with is compliant with Article 5, even if it doesn’t work. When Local Authorities say that they can’t operate the system with the resources they are given, the Department of Health holds a hand up to its good eye and says, “I see no ships.” They have a mechanism in place to prevent them getting chastised by the ECtHR and avoid big fines. That’s all they need. They don’t need it to work. Their focus is not the human rights of the people detained under DOLS. It’s all about getting away with it.
On 27 March 2015, the Policy Lead for MCA/DOLs at the DoH wrote a letter to the Local Government Association, in response to their complaint about the woeful state of DOLS implementation. It’s a lovely letter from the DoH. It firstly agrees that there has been a stupendous increase, then it compliments the local authorities on their sterling work and exhorts them to find efficiencies before bunging them £25 million. It also notes that the Law Commission is doing work on DOLS reform, but it’s basically a letter that gives no indication of concern at “the severity of the issue”.
Then there’s BREXIT. (See how I put it all in capitals?) The British public – like judges – are not philosophers and therefore often fail to come to sensible decisions. I am reminded here that the Financial Sector is also driven by sentiment rather than sense. So, the British Public and the Government, which is made up of people who are exemplars of this British Public, have a sentiment to get rid of everything “European.” Human Rights have been branded “European” and therefore something to get rid of. DOLS, by extension, is a child of the European Convention on Human Rights and one could imagine when politicians of a certain itchy persuasion hear that it’s come about in this way, will want rid of it. Or if they can’t get rid of it (and I bet they are plotting) they will certainly not rush to fix it. Civil Servants are not irrational, mainly, but the views of politicians are intimately related to those of the woman in Carlisle who voted “Out!” because they had closed her butcher’s shop on the corner. Or the woman on the radio in Teeside who voted out because the only thing Europe had ever given her was some free butter in the 1970s (…and rebuilt Middlesborough?)
Never mind about that.
On 11 December 2015, the Department of Health responded to the Law Commission’s consultation and initial proposals on DOLS. It didn’t like their proposals on legislation about Supportive (rather than Restrictive) care. It did like their idea of a souped up BIA who would become some kind of case manager and be called an AMCP. This title is clearly to chime with the AMHP designation, but the last thing an AMHP is is a case manager – except for a very brief period. Calling a BIA an AMCP is not really going to solve the problem of not having enough people to do the job. The creation of the AMCP is supported by the Chief Social Worker, but I’m not actually sure what that means other than representing staking claims for future empire building.
On one issue, I completely agree with the DoH – the situation in a short stay acute hospital and a long stay nursing home are so different that there should be two schemes, one for treatment hospitals and one for residential placements. The DoH talks about the relatively small number of cases where both MHA and DOLS are possible, but I see loads of these!
Anyway, DOLS will be with us for a while yet. The DoH hopes that the Law Commission would complete a draft Bill by the December 2016. And after that you can do a conversion course (probably at your own expense) and become part of the AMCP shortage.