The potential damage of misunderstanding DoLS and MCA

As an trainer who spends time with carers, families and staff members whose responsibility it is to cope with vulnerable people I am often astonished at the lack of knowledge people have and worry about why this is the case.

If I were to take just a few areas of lack of knowledge in the caring sector and deal with what issues that might cause.  In this article I will deal specifically with Learning Disabilities, but often these issues apply to other areas as well.

The Law
Let's start with DoLS.  When discussing legislation with care givers, often their eyes roll back, they sigh and say something along the lines of "the law is an ass" or "problem is they don't live in the real world these politicians that make laws".  Well, I'm hardly going to disagree with either of these statements, but, I'd first try and correct the assumptions that DoLS and the Mental Capacity Act (and to some extent the Human Rights Act) were put into place just to make the life of a carer harder.

The primary functions of all of these peices of legislation is to protect.  They often protect the most vulnerable and they on occasion like any piece of legislation get misreported in the press or have unintended consequences.  However, that still doesn't prevent them from being a force for good. 

So, back to our misunderstanding of DoLS.
I was asked this question recently by a member of staff who was both clearly a caring person and professional in her attitude.

"So, if I was to prevent a person from running over the road when traffic was coming 

would I not be restricting her liberty, and if I am, Isn't that illegal?"

I've also had

"It's against the law to prevent someone from self harming because it's their choice"

"It's illegal to restrain someone because that's unlawful imprisonment"

"You can't even lock the front door to stop burglars coming in because that's restriction of liberty"

Just to be clear these were all different people on different courses

Interestingly

I've had staff from one service tell me that although they couldn't prevent someone from self harming because it was his choice, they could prevent him from masturbating because his family thought he was too immature to be allowed to perform sexual acts (he was in his 30's and had a learning disability).

Mental Capacity Act

If we then add the Mental Capacity Act to the mix where there is the assumption by many staff that because you have a learning disability, you're unable to make your own decisions.  Upon telling one group that in fact, a person is assumed to have capacity until demonstrated otherwise.  This information was responded to with the following phrase.

"but surely having a learning disability means that they can't make rational decisions anyway?"

They were also quite surprised when I told them that this ability to make decisions included  "Unwise or Strange decisions".  They found themselves trying to justify why this didn't apply to their service.  I got all sorts of, well with our people they can't make those decisions because they'd do something dangerous.  I realise that when people hear things they don't like the sound of they often then rationalise their dislike by using extreme examples of why something is wrong.

It was also interesting that when I suggested that actually there was a section of the MCA which stated that people who had capacity (remembering the assumption made that all people 18 or over have capacity) may make decisions which other people might consider to be "Unwise or Strange" and that is protected within the MCA.  This was immediately queried until I asked a few questions of them.

Just a few quick questions

•  We all know the sensible thing to do is eat five fruit and veg every day, exercise three times a week and keep alcohol consumption down so, why don't we?

• We all know that smoking kills, so why do you do it?

• We all know that piercing ears (and other body parts) hurts, so why do it?

All of a sudden the penny dropped with the group who discovered that actually this piece of legislation was put into place often to ensure that people we support have the same rights and freedoms as we do.

I would never suggest that the people I was training were abusive deliberately, nor that they were malicious in any way shape or form, but of the their basic misunderstandings of legislation lead them to make decisions that could be abusive or fail in their duty of care. 

How do we get around this issue?

Well, as a trainer, I'd obviously suggest training.  However, that's only one element of the process.  For staff and carers to truly understand something that has an impact, their employers often have to understand it to.  Sadly, this isn't always the case.  I've been told by a Director of a large organisation that staff should never restrain someone because that's an infringement of their liberty.  When I queried whether that would apply to a person who is repeatedly self harming by banging their head against a door frame (something a member of staff had told me during a previous meeting), he responded by saying they don't restrict people because the law doesn't allow it and further if staff do restrict it and you teach them how to do it, they'll do it all the time!

So for me, it's not just about training care staff, it's about getting owners, directors, managers to understand that they need to have a very clear understanding of the legislation so they can give clear direction and policies to their staff.  Without this, people work on misunderstanding, act in the way they think is correct and sometimes end up making things worse.

A further point is trying to get staff to the point where they can relate the legislation to their own lives.  This gives people an awareness they often don't get when someone just tells them what to do!