A man with autism (HL), with no ability to communicate consent or dissent to
hospital admission, was admitted informally to the mental health unit of the
Bournewood Community and Mental Health NHS Trust following agitated behaviour at a
day centre. The European Court of Human Rights, in 2004, found that the
circumstances of HL's care and treatment during a period in which he was not
formally detained under the Mental Health Act 1983 constituted infringement, in
the form of deprivation of liberty, of his rights under Articles 5 (1) and 5 (4)
of the European Convention on Human Rights.
Article 5 (1) was breached because the manner in which HL was deprived of
liberty was not in accordance with ‘a procedure prescribed by law’.
Article 5 (4) was breached because HL was not able to apply to a court to
decide whether the deprivation of liberty was lawful. There was general agreement
in the specialist literature that steps should be taken to comply with this ruling
and considerable debate in legal circles about developing appropriate legislation,
including strengthening the guardianship order. Following protracted discussion,
the government amended the Mental Capacity Act 2005, by amending clauses in the
Mental Health Act 2007, with the introduction of the Deprivation of Liberty
Safeguards (DoLS) for individuals whose care or treatment involves deprivation of
liberty within the framework of Article 5 of the European Convention on Human
Rights, but who were not detained under the Mental Health Act. This represented a
clear shift from the traditional ‘doctor knows best’ culture in the management of
compliant, but incapable, individuals, where doctors exercised complete and
effective control. It is widely accepted that this legislation is a somewhat
complex afterthought to the Mental Capacity Act 2005.
The DoLS applies to both hospitals and care homes in England and Wales and was
implemented on 1 April 2009. Multidisciplinary professionals and managers working
in mental health and general hospital settings and in care homes need to be
familiar with this new legislation and the six different assessments required for
DoLS. These six assessments are as follows.
(a) Age assessment - this confirms that the individual is 18 years or older
as authorisation cannot be given to those under the age of 18.
(b) Mental health assessment - this establishes the presence or absence of a
mental disorder as defined in the Mental Health Act 1983. This assessor
is required to be equivalent to a Section 12-approved doctor under the
Mental Health Act.
(c) Mental capacity assessement - this establishes whether the individual
lacks the capacity to consent to the arrangements proposed for their
(d) Best interest assessment - this establishes that if deprivation of
liberty is occuring or is going to occur it is in the best interest of
the individual to be deprived of liberty, deprivation of liberty is
necessary to prevent harm to the individual, and the deprivation of
liberty is proportionate to the likelihood of the individual suffering
harm and the seriousness of the harm. This assessor is required to be
equivalent of an approved mental health professional as defined in the
Mental Health Act.
(e) Eligibility assessment - this establishes the individuals's status or
potential status under the Mental Health Act with the aim of confirming
whether the individual should be subject to the Mental Health Act or the
DoLS under the Mental Capacity Act 2005.
(f) No refusal assessment - this establishes whether authorisation of
deprivation of liberty would conflict with other authorites (for example
power of attorney) for decision-making for that individual.
The mental health and best interests assessments have required to be conducted by
two different professionals. Thus, a minimum of two assessors are required to
complete the six DoLS assessments.
The Regulatory Impact Assessment for DoLS estimated that 20 000 individuals (16
000 in care homes and 4000 in hospitals) in England will require assessments in
the first year of the implementation of DoLS.
The government has provided additional funding of £10 million for local
authority and £2.2 million for the National Health Service (NHS) for the
implementation of DoLS.
Thus, the cost of a single DoLS assessment was considered to be £600 and
each local authority was given £600 per assessment for their share of the
assessments for the year 2009-2010. The changes are an important protection of the
human rights of vulnerable people, but that protection comes at a cost. Often cost
is ignored or brushed to one side as irrelevant to the policy questions involved;
the implementation of DoLS, and the protections they provide, incurs a cost for
the assessments themselves and which is an opportunity cost to health and social
care services. If society is to ensure that the benefits of DoLS outweigh the
costs then it is important to know what those costs are. Further, the cost in the
first year as assessed by this study may underestimate the longer-term costs -
there is potential for the first year's DoLS assessments to be just the tip of the
iceberg. If it transpires that there are many more people who should be assessed
then that may have significant budgetary implications. Additionally, there has
been concern about the funding available for the implementation of DoLS and
consultant psychiatrists have reported an increase in their workload after the
implementation of the Mental Capacity Act 2005 without any compensatory increase
in staffing levels.
Therefore, a study to estimate the costs likely to be incurred with the
implementation of the DoLS in England was undertaken. This study was approved by
the ethics committees at the University of Central Lancashire and the University
Resource utilisation for DoLS assessments
Data on resource utilisation were ascertained from professionals conducting
the six formal assessments for DoLS, the secretarial staff processing the
DoLS assessments in local DoLS offices and the independent mental capacity
advocates by a telephone interview using a specially designed brief
questionnaire. The areas covered in the interview with the professionals
conducting the six DoLS assessments were:
(a) grade and profession of the assessor for each of the six DoLS
(b) the average time required by professionals to conduct each of the
six assessments for DoLS;
(c) the average travelling time of professionals conducting the six
assessments for DoLS;
(d) the average travelling distance of professionals conducting the six
assessments for DoLS;
(e) the number of people assessed by each interviewed professional for
each of the six DoLS assessments;
(f) the percentage of people requiring referral to the Court of
Protection and an independent mental capacity advocate.
The areas covered in the interview with the independent mental capacity
advocates were essentially similar to those listed above except that they
were not asked about the percentage of individuals who were referred to an
independent mental capacity advocate. The areas covered in the interview
with the secretarial staff in the DoLS office were: the average time
required by secretarial staff to process the DoLS assessment and the number
of people for whom they had processed DoLS assessments.
A total of 40 interviews including professionals conducting the six DoLS
assessments, the secretarial staff in DoLS offices and the independent
mental capacity advocates were planned. As it was likely that the range of
professionals undertaking DoLS assessments would vary depending on the
geographical location, and whether the supervisory body was the local
authority or the primary care trust, four primary care trusts/local
authorities representing the likely diversity of environments (rural/urban
and north/south of England) were purposefully sampled from a Department of
Health list. The administrators of the identified DoLS offices were
contacted to obtain details of professionals undertaking the six DoLS
assessments and the secretarial staff processing the DoLS assessments. The
independent mental capacity advocates in the same geographical areas were
identified from a list available from the Department of Health.
As no interviews were secured from one DoLS office (although
independent mental capacity advocate interviews were secured in that
geographical area) and the numbers from the other three DoLS offices were
comparatively small, two other DoLS offices were approached. Thus, six DoLS
offices were approached in total. Three were in the north of England (two in
the west (one rural and one urban) and one in the east (urban)), one in the
midlands (urban), and two in the south (one in London and one on the south
coast (rural)). Of the six DoLS offices, five were combined offices for
primary care trusts and the local authority and one was a primary care trust
Time required for DoLS assessments
A clear pattern emerged in all the DoLS offices for the assessment by the
professional groups. All assessments were generally conducted by two
different professionals: the professional conducting the mental health
assessment and the professional conducting the best interests assessment.
The reason these assessments segregated into those conducted by mental
health and best interest assessors is that the mental health and best
interests assessment cannot be conducted by the same person under the
legislation for DoLS. Across the different DoLS offices the mental health
assessor conducted anywhere between one and three (the mental health
assessment and either mental capacity and/or eligibility assessments) of the
six different DoLS assessments and the best interests assessor conducted
anywhere between three and five (the ones the mental health assessor did not
do) of the six different DoLS assessments; however, within each DoLS office
the number and type of assessments for DoLS undertaken by the mental health
and best interests assessors remained constant.
The heterogeneity in the assessment mix completed by mental health and best
interest assessors was likely to drive variation in the overall costs of
DoLS across regions. Qualification level and hence hourly costs of the
assessors also varied across regions. Costs associated with travelling were
likely to be higher in rural areas and may have been influenced by the
availability of suitably qualified local assessors. The optimal approach
where unit costs vary is to combine centre-specific resource use and unit
costs to generate centre-specific overall costs.
This was the approach taken in this study.
Referrals to an independent mental capacity advocate and the Court of
Each of the professionals interviewed provided data on the total number of
people they had assessed and the percentage of people who were referred to
an independent mental capacity advocate. This allowed calculation of the
weighted (for the number of people assessed by an individual professional)
average percentage of people referred to the independent mental capacity
advocates service. Data from professionals in all five regions were combined
and applied to each DoLS office on the assumption that the proportion of
people referred to an independent mental capacity advocate would not vary
significantly by region. Each of the professionals and independent mental
capacity advocates interviewed provided data on the total number of people
they had assessed and the proportion of people who were referred to the
Court of Protection. This allowed calculation of the weighted (for the
number of people assessed by an individual professional or independent
mental capacity advocate) average percentage of people referred to the Court
of Protection in an analogous manner to the estimation of referrals to the
independent mental capacity advocates service above. Data from all five
regions were combined and applied to each DoLS office on the assumption that
the proportion of people referred to the Court of Protection would not vary
significantly by region.
Unit costs for professionals, secretaries and the independent mental
The average hourly unit costs, including add-on costs, for the different
professionals with different grades involved in the six DoLS assessments
were ascertained from the Unit Costs of Health and Social Services 2009.
The average hourly unit costs, including add-on costs, for secretarial staff
were estimated from data on local government salaries by region as provided
in the Annual Survey of Hours and Earnings by the Office for National Statistics
combined with add-on costs provided from the Unit Costs of Health and
Social Care 2009.
Most independent mental capacity advocates reported their profession as
independent mental capacity advocate and were unable to supply a grade.
Consequently, the unit costs
for an adult social worker or social worker team leader (where
indicated) were applied. Data for the independent mental capacity advocates
service were not available from one area. These costs were estimated by
recalculating the total costs for each independent mental capacity advocate
interviewed after applying the unit cost relevant for the geographic status
of the region with missing data. The average cost weighted by the number of
cases dealt with by the independent mental capacity advocate was then
estimated. Adjustments for London-based staff or staff based outside London
were applied as appropriate. All costs were in 2008 British pounds.
The cost of travelling was ascertained from local government figures for 2008.
This was at a rate of £0.56 per mile travelled.
Cost of DoLS assessments conducted by professionals
Each professional provided the average time taken for an individual DoLS
assessment or for combined DoLS assessments when more than one of the six
DoLS assessments were conducted together and the total number of people they
had assessed since they undertook such work. Average travelling time and
distance was also provided. Total assessment time for each individual
(including travelling time) was multiplied by the unit cost for that
professional, and a travelling allowance for mileage added. An average cost
for mental health assessors in each DoLS office was estimated by taking a
weighted average (for the number of people an individual professional had
assessed) of the total cost estimated for an assessment by each mental
health assessor in that DoLS office. The same procedure was applied to the
interview data from best interest assessors in each DoLS office.
Cost of secretarial time
The same approach was used to estimate the weighted average secretarial
staff time for each DoLS office. The weighted time for the secretaries
processing the DoLS assessment and the unit cost of their salary allowed
calculation of the total costs for secretarial time in processing a single
DoLS assessment in each DoLS office.
Cost of independent mental capacity advocates
The same approach was used to estimate the weighted average time for
independent mental capacity advocates in each DoLS office region. The total
time, including travelling time, was combined with the appropriate unit cost
for each independent mental capacity advocate interviewed. An allowance for
mileage was added to generate an estimate of the total cost of independent
mental capacity advocates. A weighted average for each DoLS office area
(weighted on the number of reported cases undertaken) was taken. However,
only a proportion of all cases assessed for DoLS are referred to the
independent mental capacity advocates. The weighted percentage of cases
assessed for DoLS referred to the independent mental capacity advocates was
used to apportion the cost across all people assessed for DoLS (in other
words a fraction of the total costs of the independent mental capacity
advocates were apportioned across all people requiring DoLS assessment
irrespective of referral to the independent mental capacity advocate).
Cost of Court of Protection
The ‘Bournewood’ consultation document
and the regulatory impact assessment reported £2050 as the cost per
case referred to the Court of Protection. This estimate was inflated for
2008 (£2262). Only a small percentage of all cases assessed for DoLS are
referred to the Court of Protection. The weighted percentage of cases
assessed for DoLS and referred to the Court of Protection was used to
apportion the cost across all people assessed for DoLS (in other words a
fraction of the total costs of the Court of Protection were apportioned
across all people needing DoLS assessment irrespective of referral to Court
It was evident that most DoLS office managers fulfilled other duties
alongside managing the DoLS office and many also undertook DoLS assessments
themselves in the role of best interest assessor. The manager of each of the
DoLS offices was contacted and the proportion of their time spent managing
the DoLS assessment process was requested. Only one manager provided a
specific estimate of the number of hours per week spent on managerial
duties. Thus, the managerial costs are not further described.
Costs of a single DoLS assessment
The costs incurred as a result of the following activities were added
together to give the total costs for a single assessment of DoLS in each
(a) cost of professionals (including travelling time and distance) in
conducting the six DoLS assessments;
(b) cost of secretarial time for processing DoLS;
(c) cost of independent mental capacity advocates (including travelling
time and distance) in conducting their assessments and apportioned
across all those assessed;
(d) cost of Court of Protection apportioned across all those
The average of the estimated cost for the assessment DoLS per person for
each DoLS office was then calculated as the best estimate of the cost of
DoLS assessment per person.
The average time taken by the best interest assessor was particularly high
in one area (DoLS office 4). This was based on one interview, albeit with an
assessor who was working full time and with considerable experience.
Nevertheless, a sensitivity analysis with this observation removed to
examine its impact on the overall estimate of the cost of a DoLS assessment
was undertaken. This high observation was replaced with a weighted mean from
the best interest assessor observations in the remaining four regions. A
weighted average cost for assessment by the best interest assessor was
determined from the assessment time recorded for all best interest assessors
except the outlying observation. Unit costs were applied to the time
appropriate to the grade of each best interest assessor assuming the same
London/non-London status as the deleted observation. Travel costs were
estimated separately. The weighted average travel time and travel distance
from the mental health assessors in the region of interest were applied.
Travel time was multiplied by the weighted average unit cost for best
interest assessors assuming the same London/non-London status as the deleted
observation. The resulting sum of assessment and travel costs was used in
place of the outlying data from the best interest assessor and the mean cost
across the five centres recalculated.
A total of 37 professionals (n = 25) and secretaries
(n = 6) in the DoLS offices and independent mental capacity
advocates (n = 6) were interviewed. Collectively, these three
groups had been involved in the DoLS assessment of 527 people, although some
individuals may have been counted more than once as all three groups may have
been involved with them.
One DoLS office provided no data on professional or secretarial involvement but
did provide data from two independent mental capacity advocates. No cost was
estimated for DoLS assessments from this office. The data from the two
independent mental capacity advocates were used in combination with data from
independent mental capacity advocates at four of the five other DoLS offices to
estimate a weighted average cost of independent mental capacity advocates input
in a DoLS assessment.
Table 1 shows the professional groups
and grades undertaking each of the six DoLS assessments. Collectively, the
interviewed professionals had conducted a total of 1161 of the individual DoLS
Table 1 Professional groups undertaking Deprivation of Liberty Safeguards
specialist in psychiatry
registrar in psychiatry
trainee year 6 doctor in psychiatry
Referrals to an independent mental capacity advocate and the Court of
In total, 25% and 1.7% of people assessed for DoLS were estimated to require
referral to an independent mental capacity advocate and the Court of
Cost of a single DoLS assessment
Table 2 illustrates the total cost of
a single assessment of DoLS in each of the DoLS offices. From DoLS office 2
there was no resource utilisation data from the independent mental capacity
advocates and so the cost for independent mental capacity advocates was
estimated for that office using methods described earlier.
The average cost for a single DoLS assessment across the five DoLS offices
was £1277. As there was a wide range in the cost of a single assessment for
DoLS across the five DoLS offices, the standard deviation and 95% confidence
intervals around these costs were calculated on the assumption that these
costs were normally distributed and that non-probabilistic sampling can be
modelled as if it were a random sample. The standard deviation around the
estimated cost of a single DoLS assessment was £393 and the 95% confidence
interval was £506 to £2048.
Costs in DoLS office 4 were particularly high, driven by the high costs of
the best interest assessor inputs in this centre. The best interest assessor
at this office conducted four of the six assessments and it was not clear
why assessment times and consequently costs were higher in this centre. A
sensitivity analysis was undertaken in which the cost of the best interest
assessor input in this DoLS office was replaced with an imputed value based
on assessment times from the remaining four DoLS offices and travel times
for the Mental Health assessors from this office. The estimate of the costs
of the best interest assessor input for DoLS office 4 (£935) was replaced
with an imputed value of (£449). Overall costs for a DoLS assessment for
office 4 fell from £1827 to £1341. This reduced the overall mean across the
five centres to £1180, just under £100 less than the original estimate.
Post hoc analysis
The Care Quality Commission recently reported that there have been 5200 DoLS
assessments in the 9-month period from 1st April 2009 to December 2009.
Based on these figures, assuming that there will be an even spread of
DoLS assessments over the first year, it can be estimated that 6933 DoLS
assessments will occur in the first year after the implementation of DoLS.
Using the cost of a single DoLS assessment estimated in the current study
(£1277), the total cost for these 6933 DoLS assessment was estimated at £9
Table 2 Estimate of the cost of a single Deprivation of Liberty Safeguards
|Assessments by mental health assessor (including travelling
time and distance)
|Assessments by best interests assessor (including travelling
time and distance)
|Independent mental capacity advocates assessments (including
travelling time and distance) apportioned to each person
Protection costs apportioned to each person assessed
The costs associated with the time of professionals in the managing
authority and relatives and carers where they were interviewed or consulted
by the professionals conducting the six assessments for DoLS and independent
mental capacity advocates were not included because it was not possible to
accurately estimate this. The relevant person's representative, who is
likely to be someone close to the assessed individual authorised under DoLS,
is likely to incur costs related to the actual use of their time in
discharging their responsibilities, travelling, loss of earnings and loss of
leisure time, but these were not estimated because the main focus of this
study was to determine the budgetary impact of DoLS legislation on health
and social services budgets. Also, a small number of these representatives
are formally paid, but this was not included as the numbers for this are
unknown and likely to be small. Although the cost of professionals
conducting the six DoLS assessments and the independent mental capacity
advocates were included, any additional time commitments after the
assessment was completed were not included. For example, the time required
by the professional conducting the DoLS assessments to inform staff in the
managing authority, the assessed individual, relatives and carers of the
outcome of the assessment. The cost of Mental Health Act 1983 assessments
that may be required after completion of the DoLS assessments when the
eligibility assessment recommends a Mental Health Act assessment were not
included because the number of such assessments was unknown. However, the
DoLS assessment process may lead to an increase in Mental Health Act
assessments because DoLS is contingent on refusal, and there is recent
evidence of an increase in the number of detentions under the Mental Health
Act 1983. The cost of reassessment for authorisation when the original
authorisation lapsed was also not estimated because accurate data on the
duration of authorisation were not available. The management costs of a
single DoLS assessment were not included because data on this were only
available from one DoLS office. All the costs were for the year 2008 as the
latest available data on salary costs and other costs were for 2008. The
concerns listed thus far are likely to result in an underestimate of the
true cost in the current study. This underestimate could be reduced to
produce a figure closer to the correct one by estimating some of the missing
data, and this was done where possible (for example missing independent
mental capacity advocates data from one DoLS area), but was not always
Although this study used a bottom-up approach, a top-down approach could
have been used, whereby the total national budget for DoLS could simply be
divided by the total national number of DoLS assessments. However, the
latter approach would not necessarily be more accurate for several reasons.
The national figures for the number of DoLS assessments available thus far
were only for the first 9 months and they may not have been accurate. The
DoLS offices and the independent mental capacity advocates may be part of a
department serving several other functions. For example, the best interests
assessors for DoLS were also working as approved mental health professionals
for the Mental Health Act 1983 and the managers of DoLS offices also
conducted some of the DoLS assessments and other functions. Thus, in
reality, professionals may be cross-subsidising costs through unpaid
overtime or other budgets, or the DoLS budget may be subsidising other work.
The bottom-up approach used circumvents these issues, whereas the top-down
approach would not.
The legislation for DoLS and the accompanying Code of Practice do not
provide formal guidance about the order in which the six different
assessments for DoLS should be conducted. The order in which the different
DoLS assessments are conducted may, therefore, vary across different DoLS
offices; anecdotally, this was observed in the current study. It is possible
that the remainder of the DoLS assessments would be abandoned if one of the
assessments indicates that authorisation cannot be granted. For example, if
the mental health assessment is the first assessment and the individual is
found not to have a mental disorder, then the other five assessments are
likely to be aborted. However, in the costing analysis it was assumed that
every individual would receive all six assessments. This approach is likely
to provide a higher estimate of the true cost. For one DoLS office no
independent mental capacity advocates were interviewed and for that DoLS
office a weighted average cost of the assessment of an independent mental
capacity advocate from other DoLS offices was used; this may have biased the
costing analysis. Also, an assumption that individuals requiring independent
mental capacity advocates would be the same in rural and urban areas was
made in the absence of any evidence to the contrary. However, this is
unlikely to significantly affect the costs because the cost of independent
mental capacity advocates made only a small contribution to the overall
cost. Forty interviews were originally planned with professionals conducting
the six DoLS assessments, the secretarial staff processing the DoLS
assessments and the independent mental capacity advocates. However, only 37
interviews were secured. This discrepancy is unlikely to have affected the
results. Moreover, the 37 respondents had experience of 527 people referred
for assessment of DoLS and a total of 1161 individual assessments for DoLS.
The studied DoLS offices were purposefully sampled rather than randomly
selected. It is not possible to be certain that the range of professionals
from all relevant disciplines and grades involved in the DoLS assessments
were captured by the study design.
The variation in the cost of a single DoLS assessment observed across the
different DoLS offices may be the result of the following factors.
(a) The methodological difficulties discussed earlier.
(b) Professionals interviewed may not be representative of all
professionals undertaking DoLS assessments.
(c) Data collected from professionals were not verified independently
and may be subject to recall bias. This recall bias could lead to
an under- or an overestimate of the costs and it was difficult to
predict the direction of this bias. The bias could have been
reduced by asking the professionals, secretaries and independent
mental capacity advocates to keep a prospective time diary for a
month but this was beyond the scope of this study.
(d) Differing definitions of deprivation of liberty used by different
(e) Differing interpretations of the criteria for the six different
DoLS assessments used by different professionals.
(f) Differing interpretation of the interface of DoLS and the Mental
Health Act 1983.
(g) Differing geographical locations leading to variable travelling
times and distances.
(h) Differing characteristics of individuals referred for DoLS
(i) Differing grades and professions of the DoLS assessors.
Costs for the best interest assessor input were notably higher in DoLS
office 4 than in the other four offices. These data were based on a single
interview. The assessor was working full time on best interest assessments
and had conducted 56 assessments. It seems unlikely that the assessor was
inexperienced in the role or that their recall of time taken for assessments
would be particularly poor. Replacing this data with an imputed value based
on assessment times in the other four offices reduces the overall estimate
of the cost of a DoLS assessment by just under £100.
The government estimated that there would be 20 000 assessments for DoLS in
England at a cost of £600 each and funded local authorities and the NHS in
accordance with this. The average cost of a single DoLS assessment estimated
in this study was significantly higher than the government's estimate of
£600. However, the government's figure of £600 was within the 95% confidence
interval for the estimated cost of a single DoLS assessment for the five
DoLS offices, and was at the lower end of this 95% confidence interval. It
is likely that the figure of £600 would drop below the 95% confidence
(a) the estimated costs were corrected for costs for 2009/2010;
(b) managerial costs were included;
(c) costs of the best interests assessor in securing the person's
representative for the individual assessed where the authorisation
for DoLS is granted were included;
(d) costs of the DoLS assessors in liaising with the managing authority
staff, people assessed for DoLS and family members after the
assessment is completed were included.
The methodological issues discussed earlier may also be important in this
context, although it is likely that correction of the methodological issues
would increase the estimated costs further rather then reduce them.
Moreover, the costs estimated in this study were based on data acquired from
the actual experience and practice of the professionals conducting the six
assessments for DoLS, secretarial staff in the DoLS office processing the
request for DoLS assessments and the independent mental capacity advocates;
these 37 respondents had experience of 527 people referred for a DoLS
assessment and a total of 1161 separate DoLS assessments. Furthermore, these
respondents were drawn from six separate DoLS offices from diverse
urban/rural and north/south locations. Thus, the estimated cost for a single
DoLS assessment determined in this study is likely to be closer to the true
cost than the government's estimate of £600.
Estimating the cost for each type of staff group and for each assessment
would identify areas that are more expensive and allow the development of
more efficient service delivery models. However, the current study was not
designed to examine this. Also, other factors like statutory requirements,
local models of service delivery and availability of personnel may influence
It would have been interesting to estimate the cost of using the
guardianship order instead of DoLS, for comparative purposes, because
amendments to the guardianship order were seriously considered as an
alternative to DoLS to comply with the European Court of Human Rights'
judgment on the Bournewood case. However, in the absence of the precise
criteria for the ‘amended’ guardianship order and in the absence of resource
utilisation data for guardianship orders used in this context, it was not
possible to estimate these costs.
If the estimated cost in this study is closer to the true cost and if the
government's estimate of the number of DoLS assessments in the first year of
20 000 were actually conducted, then there would be a shortfall in the
allocated budget for DoLS on the basis of a cost of £600 for a single
assessment. The Care Quality Commission has recently reported that in the
first 9 months until December 2009 since the implementation of DoLS in April
2009, there have only been 5200 DoLS assessments.
Unless there is a surge in assessments in the remaining 3 months of
the first year, the allocated budgets will turn out to be satisfactory
because the number of assessments would have been lower than predicted, but
not the actual cost of the single assessment.
The reasons for the discrepancy between the government's estimate and the
actual number of people reported to have had an assessment for DoLS include
the following. There is a possibility that not all individuals assessed for
DoLS by individual DoLS offices have been reported centrally. Also, some
people referred for a DoLS assessment may not have been assessed by the
supervisory bodies. In addition, deprivation of liberty is not clearly
defined in the legislation and the accompanying Code of Practice and this
may have led to variable interpretation of the definition of deprivation of
liberty and variable application of the potential criteria for deprivation
of liberty from case law in the managing authorities.
A Welsh study of hospitals failed to identify a single case of
deprivation of liberty.
The authors argued that this may be because it may be very difficult
to meet the threshold for deprivation of liberty
given that it is not defined in the legislation and is based on case
Another possible reason for the discrepancy is that clinicians have
expressed concern about the discrimination between restriction and
deprivation of liberty.
The former does not require DoLS and the latter does. Also, the code
of practice for DoLS recommends that measures should be taken to remove
deprivation of liberty before referral for an assessment for DoLS. It is
possible that this may have been an effective recommendation to reduce the
number of people deprived of liberty. It is also possible that there may be
reduced awareness of the legislation for DoLS in the managing authorities
and, therefore, it is used less often; reduced awareness may lead to the
legislation not being applied appropriately and, in turn, lead to variations
in different settings and regions. This has been observed previously with
the use of the guardianship order in the Mental Health Act 1983. Finally,
the eligibility assessment for DoLS can lead to a recommendation for
assessment under the Mental Health Act 1983. It is possible that the
managing authorities are using the Mental Health Act rather than DoLS in
anticipation that the referred individual may fail the eligibility test for
DoLS. This would largely only account for the lower numbers receiving DoLS
assessments in mental health hospital settings and would not overtly
influence the other two settings (where the Mental Health Act 1983 is
traditionally not used), although there may also have been an increase in
the use of community treatment orders and guardianship orders with the
condition of staying in the nursing or residential home.
Our interpretation of the findings suggest that future research needs to
identify the range and variability in the definitions of deprivation of
liberty used by the staff in managing authorities and the DoLS assessors
from supervisory bodies. We also need to identify the range and variability
in the interpretation of the criteria used in the five assessments for DoLS
(other than the age assessment). At present the DoLS legislation and the
accompanying Code of Practice do not stipulate or recommend the order in
which the six different DoLS assessments should be conducted. Anecdotally,
the order in which the DoLS assessments are carried out seems to vary across
the different DoLS offices and it would be helpful to have clear
recommendations on this. Thus, if an assessment is failed then the remaining
assessments are not conducted and the individuals spared further assessments
and the cost of additional assessments is saved. Some local DoLS offices
appear to have developed protocols for this and it may be helpful to have
these centralised. In addition, further research is needed to continue to
collect data on activity (the number of referrals for DoLS, the assessment
time, the travelling time, the travelling distance, the grade and discipline
of the professionals, managers, secretaries and independent mental capacity
advocates involved in the assessments), and the outcome of each of the six
assessments and the reasons for this. This would allow a better
understanding of the process and content of the DoLS assessments and enable
a more accurate estimate of the costs. The latter would be of importance to
policy-makers and both the managing authorities and supervisory bodies.
The Nuffield Foundation funded this
We are grateful to all the managers, administrators, DoLS assessors,
independent mental capacity advocates and secretaries for participating in this
study. We are also grateful to the three anonymous reviewers for their helpful
HL v UK. European Court of Human Rights
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