Written by Tan Clover of Helen Sanderson Associates
For anyone with any interest in social justice the deprivation of liberty stories in the news towards the end of January made distressing reading. On the 16th many papers covered the story of Mr Dvorcaz. His story came from the detail of a report compiled in August last year by her majesty inspectors of prisons. The report, from an unannounced inspection of into Harmondsworth Immigration Removal Centre, identified how an 84 year old man living with dementia had been “needlessly handcuffed in an excessive and unnecessary manner”. The gentleman, named in the press as Alois Dvorcaz from Canada, died in hospital. He had been in handcuffs for at least 5 hours on the day he died. He died in handcuffs. No human being could possibly disagree with Nick Hardwick, Chief Inspector of Prisons , when he said that on this occasion “a sense of humanity was lost”.
Depriving a human being of their liberty should never be undertaken lightly, and any decision to do so should rest heavily on our collective conscious. So we should all be glad and take strength from the fact that we have the Mental Capacity Act  (MCA) and its Deprivation of Liberty safeguards (DoLS) to guide and support us.
Or do we. We all await the outcome, due this month, of the House of Lords enquiry into the MCA . Many readers will have been involved in submitting evidence when the call to do so was made last year. I don’t know if you have read much of the submitted evidence . It runs to two volumes, so I appreciate if you haven’t quite got round to it all of it yet. But if you can persevere it does make interesting reading. Not least to show the frustrations of so many practitioners in their understand and application of the law.
The latest figures published by the Health and Social Care Information Centre (HSCIC), highlighted in a recent Care Quality Commission (CQC) report may not grip the public in the way that the shameful treatment of Mr Dvocaz did, but they warrant equal attention. The data shows that of the 11,887 applications to deprive a person of their liberty made under the DOLS in 2012/2013 some 53% related to people living with dementia. That is 6,355 human beings. Of those applications 3,780 were granted. 2,979 of these were granted by Local Authorities, the supervisory bodies for care homes, and 801 by Primary Care Trusts, the body for hospitals.
So, do the HSCIC numbers equate to good news? The Alzheimer Society estimates that there are some 300,000 people living with dementia in care homes in the UK. The HSCIC statistic relate only to England making direct comparison difficult. But even so, one might guess that a very high proportion of people living with dementia in care homes are not deprived of their liberty.
Maybe not. David Behan , Chief Executive of the CQC, has recently said that there can be “no excuse” for services not to comply with the MCA. However, the CQC report warns that the understanding and application of MCA and DoLS remains low across both care homes and hospitals leading the report authors to state that it was difficult to avoid the conclusion that some people in care homes and hospitals may be subject to restrictions without the full protection of the MCA. Which leaves us all to reflect upon one key question. That is how many people living with dementia are unknowingly being deprived of their liberty?