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The purpose of this paper is to provide a brief overview of the Law Commission’s final report and recommendations on the reform of the deprivation of liberty safeguards under the Mental Capacity Act.

Summary of main report.

The proposals contained in the Law Commision Review and proposals for law reform are outlined.

This is a summary.

The purpose of this paper is to review a case of a man with a mild learning disability and autistic spectrum disorder who successfully appealed against a Deprivation of Liberty Safeguards authorisation under English law.

The authors wanted to identify the factors contributing to the individual’s deprivation of liberty and subsequent successful appeal. The authors examined the accounts from the experts involved on each side of the case including different views on the person’s capacity to make certain decisions. The authors examined several of the individual’s psychological and psychiatric assessments. The authors interviewed the individual on two occasions: once during the appeals process, and following his successful appeal.

The authors identified several reasons as to why the individual was successful in appealing against the Deprivation of Liberty Safeguards. First, the individual was able to seek legal support to appeal independently. Second, experts involved on each side of the case had differing opinions regarding capacity to make certain decisions. Third, the indication for the Deprivation of Liberty Safeguards was subsequently declared not valid. Finally, the authors found that the quality of life and psychological well-being for the individual improved following removal of restrictions.

The authors highlight the wider issues relating to an individuals’ rights to challenge authorisations in the Court of Protection as well as to future considerations and directions of the Deprivation of Liberty Safeguards legislation in light of evolving case law.

The authors highlight the importance of empowering patients in matters relating to their care and treatment, as well as protecting their human rights, dignity and autonomy.

The authors examine the barriers to challenging Deprivation of Liberty Safeguards authorisation and the ever-evolving Deprivation of Liberty Safeguards process.

Deprivation of Liberty Safeguards (DoLS), as part of the Mental Capacity Act 2005 (DoLS, 2007), was established to provide a legal framework for decision-making in respect of adults who lack capacity to make decisions in relation to their care and residence in England and Wales. The purpose of this study was to explore the DoLS decision-making process from the perspectives of health and social care practitioners when working with individuals with an acquired brain injury (ABI).

A total of 12 health and social care practitioners were interviewed in 2019–2020 about their experiences of using and making or supporting decisions in the DoLS framework with ABI survivors. Data were analysed, and a tentative explanation of variations in DoLS decision-making was developed.

Three distinct approaches emerged capturing different decision-making styles (risk-averse, risk-balancing and risk-simplifying) which appeared to influence the outcome of DoLS assessments. A range of mediating factors seemed to account for the variability in these styles. The wider contextual challenges that impact upon practitioners’ overall experiences and use of DoLS processes in their ABI practice were noted.

The findings highlight a need for changes in practice and policy in relation to how DoLS or similar processes are used in decision-making practice with ABI survivors and may be relevant to the implementation of the Liberty Protection Safeguards that are replacing the DoLS system.

To the best of the authors’ knowledge, this is the first study to explore accounts of DoLS decision-making practices in ABI service.

The purpose of this paper is to set out the similarities and differences between the legal frameworks for safeguarding children and adults. It presents the case for developing a Transitional Safeguarding approach to create an integrated paradigm for safeguarding young people that better meets their developmental needs and better reflects the nature of harms young people face.

This paper draws on the key principles of the Children Act 1989 and the Care Act 2014 and discusses their similarities and differences. It then introduces two approaches to safeguarding: Making Safeguarding Personal (MSP); and transitional safeguarding; that can inform safeguarding work with young people. Other legal frameworks that influence safeguarding practices, such as the Mental Capacity Act 2005 and the Human Rights Act 1998, are also discussed.

Safeguarding practice still operates within a child/adult binary; neither safeguarding system adequately meets the needs of young people. Transitional Safeguarding advocates an approach to working with young people that is relational, developmental and contextual. MSP focuses on the wishes of the person at risk from abuse or neglect and their desired outcomes. This is also central to a Transitional Safeguarding approach, which is participative, evidence informed and promotes equalities, diversity and inclusion.

Building a case for developing MSP for young people means that local partnerships could create the type of service that best meets local needs, whilst ensuring their services are participative and responsive to the specific safeguarding needs of individual young people.

This paper promotes applying the principles of MSP to safeguarding practice with young people. It argues that the differences between the children and adult legislative frameworks are not so great that they would inhibit this approach to safeguarding young people.

The purpose of this paper is to present the findings of a study considering the application of the Mental Capacity Act and Deprivation of Liberty Safeguards (DoLS). Practitioners from a range of professions were recruited to provide their views of how to respond to a variety of scenarios. GPs, nurses, social workers, physio/occupational therapists and care assistants were recruited to participate.

This study used the Delphi method to elicit participant views and generate consensus of opinion. The Delphi method recommends a large sample for heterogeneous groups, and round one had 98 participants from six different professional groups.

Participants did not respond consistently to the scenarios, but disagreed most significantly when patient decisions conflicted with clinical advice, and when to conduct a capacity assessment. These responses suggest that clinical responses vary significantly between individuals (even within settings or professions), and that the application of Mental Capacity Act (MCA) is complicated and nuanced, requiring time for reflection to avoid paternalistic clinical interventions.

Previous studies have not used a Delphi method to consider the application of MCA/DoLS. Because of this methods focus on developing consensus, it is uniquely suited to considering this practice issue. As a result, these findings present more developed understanding of the complexity and challenges for practitioner responses to some relatively common clinical scenarios, suggesting the need for greater clarity for practitioners.

The purpose of this paper is to review safeguarding adult reviews (SARs) pertaining to individuals with acquired brain injury (ABI) since 2014. This extended literature review also explores the lessons and recommendations from these reviews in relation to social work practice within the UK.

The literature review reported and discussed findings across reviews and then used a thematic analysis to synthesise the findings and recommendations from the SARs reviews.

This paper identified four main themes: a lack of awareness of the needs of those with ABI and their families and around the symptoms and nuances of brain injury, particularly executive impairment and mental capacity, among social workers; poor interdisciplinarity led to a lack of shared communication and decision-making with professionals with such knowledge; a poor understanding of aspects of the mental capacity legislation, particularly surrounding unwise decisions, led to inappropriate or absent mental capacity assessments; and a lack of professional curiosity led to a lack of action where intervention or assessment was required.

This review identifies significant shortcomings in social work practice, education and training within the UK with regards to ABI.

This paper provides recommendations to current social work practice and highlights the need for significant improvements in pre-qualification and post-qualification training and supervision of social workers.

To the best of the authors’ knowledge, while there have been extensive reviews conducted on SARs, this is the only review that has focused solely on ABI.

The purpose of this paper is to present findings from a research project which investigated the approaches of different groups of assessors to the mental capacity assessments which are required to be conducted as part of Deprivation of Liberty Safeguards (DOLS).

Four case study vignettes were given to participants. Three groups involved in the DOLS assessment process were interviewed by telephone about the factors that may influence their capacity assessments.

Most assessors did not refer to the required two-stage test of capacity or the “causative nexus” which requires that assessors must make clear that it is the identified “diagnostic” element which is leading to the inability to meet the “functional” requirements of the capacity test. The normative element of capacity assessments is acknowledged by a number of assessors who suggest that judging a person’s ability to “weigh” information, in particular, is a subjective and value-based exercise, which is given pseudo objectivity by the language of the Mental Capacity Act (MCA). A number of elements of good practice were also identified.

In this exploratory study, participant numbers were small (n=21), and the authors relied on self-report rather than actual observations of practice or audit of completed assessments.

The findings are of relevance to all of those working in health and social care who undertake assessments of mental capacity, and will be helpful to all of those tasked with designing and delivering training in relation to the MCA 2005. They also have relevance to policy makers in the UK who are involved with reforms to DOLS regulations, and to those in other countries which have legislation similar to the MCA.

Much existing literature exhorts further training around the MCA. The authors suggest that an equally important task is for practitioners to understand and be explicit about the normative elements of the process, and the place of ethics and values alongside the more cognitive and procedural aspects of capacity assessments.