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Councils are using secretive orders to lock up hundreds of thousands of people they deem unfit to care for themselves – but patients claim they are having their freedom stripped unjustly.

Social services slap little-known Deprivation of Liberty Safeguards on adults and children as young as 13 to stop them leaving health facilities.

The controversial tool lets staff impound people or layer ‘draconian’ restrictions on their life if they judge the person not to have to capacity to stay safe.

But there have long been calls from campaigners to reform the system that sees residents reduced to ‘being treated like criminals’.

Lawyers admitted the safeguards ‘undoubtedly have problems’ due to so many ‘authorisations’, stretched local authorities and the scheme being ‘overly complex’.

In a chilling case, a businessman revealed today how he was issued a Deprivation of Liberty Safeguards order lasting two weeks a year ago but remains locked up.

David Walker, 70, said he has been forced to stay at Ash Lodge, run by Proudfoot Care Group, in Hull since October 2020.

The father of two said the order was supposed to be for two weeks and was made against his will – but remains in respite care a year later.

He said he feels locked up ‘like a criminal’ and cannot even go across the road for tobacco and groceries unless accompanied by a carer.

His daughter Dawn, 45, echoed him and said he is ‘fully able’ to care for himself and is demanding his release.

, 70, said he is being forced to stay at Ash Lodge, run by Proudfoot Care Group, in Hull due to a Deprivation of Liberty Safeguards (DoLS) order.

, 70, said he is being forced to stay at Ash Lodge, run by Proudfoot Care Group, in Hull due to a Deprivation of Liberty Safeguards (DoLS) order.

David Walker (pictured), 70, said he is being forced to stay at Ash Lodge, run by Proudfoot Care Group, in Hull due to a Deprivation of Liberty Safeguards (DoLS) order

What are controversial Deprivation of Liberty Safeguards?

What are they?

NHS Digital figures show there were 256,610 applications for DoLSs by local authorities between April 1, 2020, and March 31, 2021. A staggering 246,025 of these were completed – an increase of 1 per cent on the previous year’s figures.

The Deprivation of Liberty Safeguards are outlined in the Mental Capacity Act 2005. They are meant to ensure people in care homes and hospitals are looked after without impeding their liberty.

DoLSs detail how staff must act if they think it is best for a person to restrict their freedom.

It is up to the social services to arrange for tests to make sure the DoLS is best for the person. They can be used for a range of restrictions, including home detention and depriving someone of a phone.

When can they be used?

DoLSs are used when a patient is under continuous supervision and control in a care home or hospital.

They are only brought in when a person’s freedom is restricted to the point that they cannot leave the facility alone. They are triggered when a person is believed to lack the capacity to consent to these arrangements.

How can they be challenged?

If someone feels a care home or hospital is wrongly using an order they can challenge it or ask for it to be less restrictive. A standard authorisation test can be requested while a DoLS is being prepared.

The manager of the facility can be approached about an order on a patient. A person looking to contest an order can also get in touch with the supervisory body, the local authority, or fight it through the Court of Protection.

Why are they controversial?

Mr Walker’s case is not the first to demonstrate how DoLSs can be controversial. A report last year found more and more of them were being used against children in care.

The BBC reported the number used on young children skyrocketed from 43 in 2016-17 to 134 in 2018-19. Campaigners branded it ‘wilful neglect’ and called for them to be revised.

One gruelling order was placed on a 13-year-old girl by a court last year. She was shut away in a rented council house and lived with four local authority staff.

The girl could be locked in her room all right, have loose items taken off her and restrained to stop her self harming or hurting workers. The judge even admitted the restrictions were ‘draconian’.

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Deprivation of Liberty Safeguards are outlined in the Mental Capacity Act 2005 and are meant to ensure people in care homes and hospitals can be looked after safely.

They detail how staff must act if they think it is best for a person to have their freedom restricted and it is up to the social services to ensure they are fair.

They can be used for a range of restrictions, including home detention and depriving someone of a phone.

But the little-known tool is seen as controversial among human rights lawyers and activists, with them dished out in the privacy of care homes or hospitals or secretive courts often closed to the press.

They can also be hard to shake once imposed on a patient, with people often having to fight them through the Court of Protection.

Experts have long called for the measures to be reformed to make them fairer and prevent them from being incorrectly advised.

There were plans to shake up the system but these were put on the backburned when Covid struck in March 2020 and the justice system came under huge pressure.

The government published an amendment to the Mental Capacity Act in July 2018 to replace Deprivation of Liberty Safeguards with Liberty Protection Safeguards.

It was passed in May 2019 but was slammed for not taking into consideration reforms suggested by the Law Commission.

In another blow for civil rights campaigners, the new act also widened the scope to deprive people of their liberty in a medical emergency without prior authorisation.

The revised target date for these to be brought in is now April 1, 2022, following the pandemic and a 12-week consultation period this year.

The changes were desperately needed, as outlined by a a House of Lords Select Committee report in 2014.

it said: ‘The provisions are poorly drafted, overly complex and bear no relationship to the language and ethos of the Mental Capacity Act.

‘The safeguards are not well understood and are poorly implemented. Evidence suggested that thousands, if not tens of thousands, of individuals are being deprived of their liberty without the protection of the law, and therefore without the safeguards which Parliament intended.

‘Worse still, far from being used to protect individuals and their rights, they are sometimes used to oppress individuals, and to force upon them decisions made by others without reference to the wishes and feelings of the person concerned.’

The report called for the Deprivation of Liberty Safeguards to be subjected to a comprehensive review ‘with a view to replacing them with provisions that are compatible in style and ethos to the rest of the Mental Capacity Act’.

Jonathan Landau, a barrister at 5 Essex Court, told MailOnline: ‘First, it is necessary to stress that DoLS is intended to protect people who are being deprived of their liberty by providing a legal framework for detaining people when necessary which includes a means to challenge the deprivation of liberty.

‘The scheme was introduced because the European Court of Human Rights found that there was a gap in the law. However, there are undoubtedly problems with the scheme.

‘Because so many people required authorisations, and because the authorisations only last a year, local authorities that are responsible for the assessments struggle to comply with the statutory time limits for carrying out assessments.’

He added: ‘The scheme is also perceived as overly complex.’

Mental health charities have blasted the system for having ‘critical issues’, saying even those who work in social care ‘groan’ about it.

The law as it currently stands is also seen as too tough by many, including Mr Walker who remains shut away in Hull.

The father of two (pictured) said the order was made against his will and he has been in the mental health facility for a year

The father of two (pictured) said the order was made against his will and he has been in the mental health facility for a year

The father of two (pictured) said the order was made against his will and he has been in the mental health facility for a year

The businessman had run a building and home insulation business called Save It Insulation and had a five-storey house, a Jaguar and 90 employees.

But he revealed the firm ran into trouble with people owing him money and his wife became ill.

Hull City Council’s social services intervened and said he should go into respite care ‘for two weeks’ in October 2020.

But a year later Mr Walker says he still has not got his liberty back and remains cooped up in the care home.

He told the Hull Daily Mail: ‘I have been incarcerated in my room, in which I have to eat and sleep, everything.

‘Yet I haven’t committed an offence. I am appealing it, and I plan to sue for loss of earnings. I am now on benefits, and I want to be able to go out to work.

‘I can’t actually believe what has happened to me. I thought I was signing details for my next of kin, I feel I have been tricked. The DoLS was without my knowledge.

‘They now have the authority to keep me here. It is one year since I was incarcerated and I am in total limbo, I think they expect me to stay here until I go out in a coffin.

‘This is a miscarriage of justice, I have committed no crime.’

Mr Walker says he has been told an appeal can take up to six months and he is in the process of consulting with a solicitor.

He added: ‘I am like a rabbit in hutch and I just want to be able to go outside to the shop and to earn a living.’

David’s daughter Ms Walker said ‘No one was consulted in the family. My dad should not even be in that place.

‘I believe he is being treated like a prisoner which is completely unjustified. He is intelligent and knowledgeable and shouldn’t be in there.

‘We will do whatever we can to help my dad come out, it has gone on for too long now. He is not confused, he is totally on the ball.’

The paperwork for his DoLS, which was initially for a period of seven days, described Mr Walker as lacking ‘capacity’ and states there is no mental illness present.

The home’s manager has written in the paperwork Mr Walker cannot feed or dress himself and would be at risk of ‘malnutrition and dehydration’. David and his daughter both dispute this.

The records also say he could be suffering from Korsakoff syndrome, a memory disorder caused by a lack of vitamin B1, which is easily treatable and reversible.

Ms Walker added: ‘He is more than capable of carrying out daily tasks of looking after himself, washing, shaving, and dressing. His knowledge and understanding is 100 per cent.’

Barrister Mr Landau said Mr Walker or someone acting on his behalf must request the DoLS to be reviewed.

He said he feels locked up 'like a criminal' and cannot even go across the road for tobacco and groceries unless accompanied by a carer (pictured, Mr Walker in the care home)

He said he feels locked up 'like a criminal' and cannot even go across the road for tobacco and groceries unless accompanied by a carer (pictured, Mr Walker in the care home)

He said he feels locked up ‘like a criminal’ and cannot even go across the road for tobacco and groceries unless accompanied by a carer (pictured, Mr Walker in the care home)

Deprivation of Liberty Safeguards overruled after desperate fight by father

In 2011 a father was forced into a desperate fight to overturn the little-known order on his son. Mark Neary was praised for refusing to give up on then 21-year-old Steven, who was ‘unlawfully’ kept from his family by heavy-handed council officials. Steven had only gone into care for three days to give his father a chance to recover from flu.

But social workers flagged up the young man’s behaviour as ‘challenging’ and decided to keep him permanently. He was upset at being parted from his father, and had a habit of tapping people on the shoulder to attract their attention.

Mark Neary was praised for refusing to give up on then 21-year-old Steven, who was 'unlawfully' kept from his family by heavy-handed council officials

Mark Neary was praised for refusing to give up on then 21-year-old Steven, who was 'unlawfully' kept from his family by heavy-handed council officials

Mark Neary was praised for refusing to give up on then 21-year-old Steven, who was ‘unlawfully’ kept from his family by heavy-handed council officials

Absurdly, Steven’s shoulder-tapping was recorded in the respite centre’s daily log as a series of ‘assaults’. To Mr Neary’s horror, he was informed his son was not allowed to return to his family home in north west London but was to be placed in a care home 150 miles away.

Steven would have languished there indefinitely had it not been for Mr Neary’s fierce determination that the system would not be allowed to steal his son. They were finally reunited a full year after social workers had tried to rip the family apart. 

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He said: ‘It seems likely that that may have already been carried out in this case. The next steps is an application under section 21A of the Mental Capacity Act, which essentially operates as an appeal against a DoLS.

‘The court will aim to have a first hearing within 5 days of the application, though it may take much longer before the case is finally decided.

‘Meanwhile, the court can make interim orders such as requiring further assessments, seeking expert evidence and/or placing conditions on the authorisation.’

A spokesman for Hull City Council refused to be drawn on Mr Walker, saying: ‘We do not comment on ongoing, individual cases.

‘Deprivation of Liberty Safeguards (DoLs) ensure that people who cannot consent to their care arrangements in a care home or hospital are protected, if those arrangements deprive them of their liberty.

‘Arrangements are assessed to check they are necessary and in the person’s best interests.

‘Where a person is objecting to the arrangements for their care and treatment either they and/or their representative can make an application to the Court of Protection, under Section 21A of the Mental Capacity Act.

‘This ensures that the person’s Article 5 rights, under the Human Rights Act, are protected (Right to Liberty and Security).’

Proudfoot Care Group declined to comment.

Deprivation of Liberty orders are mostly used on adults who are seen not to have the capacity to act for themselves.

But there have been numerous shocking cases of children as young as 13 to restrict their movements.

One gruelling order was placed on a 13-year-old girl by a court last year. She was shut away in a rented council house and lived with four local authority staff.

The girl could be locked in her room all right, have loose items taken off her and restrained to stop her self harming or hurting workers.

The judge even admitted the restrictions were ‘draconian’.

Meanwhile in 2011 a father was forced into a desperate fight to overturn the little-known order on his son.

Mark Neary was praised for refusing to give up on then 21-year-old Steven, who was ‘unlawfully’ kept from his family by heavy-handed council officials.

Steven had only gone into care for three days to give his father a chance to recover from flu.

Mark Neary was praised for refusing to give up on then 21-year-old Steven (pictured together), who was 'unlawfully' kept from his family by heavy-handed council officials

Mark Neary was praised for refusing to give up on then 21-year-old Steven (pictured together), who was 'unlawfully' kept from his family by heavy-handed council officials

Mark Neary was praised for refusing to give up on then 21-year-old Steven (pictured together), who was ‘unlawfully’ kept from his family by heavy-handed council officials

But social workers flagged up the young man’s behaviour as ‘challenging’ and decided to keep him permanently.

He was upset at being parted from his father, and had a habit of tapping people on the shoulder to attract their attention.

Absurdly, Steven’s shoulder-tapping was recorded in the respite centre’s daily log as a series of ‘assaults’.

To Mr Neary’s horror, he was informed his son was not allowed to return to his family home in north west London but was to be placed in a care home 150 miles away.

Steven would have languished there indefinitely had it not been for Mr Neary’s fierce determination that the system would not be allowed to steal his son.

They were finally reunited a full year after social workers had tried to rip the family apart.

Source: Daily Mail UK

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