The Perils of Outdated Practices in Mental Health Care: A Call for Reform at Lincolnshire Partnership Foundation Trust
In the heart of the UK’s healthcare system, a troubling trend is emerging—one that sees patients suffering not only from psychiatric disorders but from the very system designed to treat them. Lincolnshire Partnership Foundation Trust (LPFT), a key provider of mental health services in the region, has come under scrutiny for its outdated diagnostic methods and lack of investment in modern medical technology. These deficiencies are contributing to a culture of misdiagnosis, underpinned by a reliance on antiquated equipment and obsolete clinical practices. This issue is not just a minor flaw within the system but a significant risk to patient safety and well-being.
The Danger of Misdiagnosis: A Clinical Crisis
Mental health care, especially in the realm of psychiatry, is often complex and requires a nuanced, multi-faceted approach. However, for far too long, the LPFT has maintained a clinical environment that fails to meet modern standards. One of the most concerning aspects of this is the high rate of misdiagnosis, which can have severe repercussions for patients. A common scenario involves individuals who are wrongfully diagnosed with severe psychiatric conditions, such as schizophrenia or bipolar disorder, based on incomplete or inaccurate assessments. These misdiagnoses often lead to patients being detained under the Mental Health Act and subsequently medicated with powerful antipsychotic drugs, without a thorough investigation into the underlying causes of their psychiatric symptoms.
A significant contributing factor to these misdiagnoses is the lack of proper neurological investigations. In many cases, psychiatric disorders present with neurological symptoms, but LPFT has failed to adopt the cutting-edge neurological and biomedical assays necessary to rule out other potential causes of these presentations. From a patient’s perspective, this means that what might be a treatable neurological condition, such as a brain tumour, epilepsy, or neurodegenerative disorder, is being left undiagnosed. Instead, patients are often subjected to long-term psychiatric medications, which may not only be ineffective but also detrimental to their health.
The Missing High-Resolution Scanner
Perhaps the most glaring example of the LPFT’s outdated practices is the absence of a high-resolution MRI scanner in Lincolnshire, a county with a major hospital and a sizable population in need of modern diagnostic tools. High-resolution scans, which can detect minute structural changes in the brain, are a standard diagnostic tool in the modern psychiatric and neurological arsenal. Without them, clinicians are working in the dark, making judgments about mental health conditions without access to critical, high-quality imaging that could reveal otherwise hidden brain anomalies.
In an era where advanced imaging techniques are commonplace, it is baffling that a trust operating in such an advanced healthcare system as the NHS would fall so far behind. The lack of investment in such a basic and crucial tool not only hampers the accuracy of diagnoses but also undermines the potential for precision psychiatry. With the right equipment, clinicians could gain a far more accurate understanding of the brain’s structure and function, enabling them to tailor treatments more effectively to the individual patient.
The Absence of Precision Psychiatry
A further concern is LPFT’s failure to adopt precision psychiatry—a model that uses advanced genetics, imaging, and other biomarkers to create personalized treatment plans for patients. Precision psychiatry represents a paradigm shift from the ‘one-size-fits-all’ approach that has dominated psychiatric treatment for decades. It involves a more targeted understanding of the biological underpinnings of mental health disorders, potentially revolutionising treatment outcomes. Yet LPFT has yet to integrate these techniques, leaving it behind as the rest of the world moves towards a more personalised, data-driven approach to mental health care.
By clinging to outdated diagnostic practices and failing to embrace modern methodologies, LPFT risks continuing a vicious cycle of misdiagnosis, improper treatment, and patient harm. What’s more, this resistance to change extends beyond the lack of equipment and technology—it reflects a broader reluctance to adopt new ways of thinking about mental health and wellness.
The Need for Reform
This situation demands urgent reform. It is no longer acceptable for a trust responsible for the well-being of some of the most vulnerable individuals in society to continue to operate with outdated equipment and antiquated clinical practices. Investing in modern diagnostic technologies, such as high-resolution MRIs, and incorporating precision psychiatry into clinical practice are essential first steps. These measures would not only reduce the rates of misdiagnosis but also lead to better patient outcomes, allowing clinicians to provide more targeted, effective treatments based on individual patients’ needs.
Moreover, it is essential that LPFT revises its approach to diagnosis, integrating not only traditional psychiatric assessments but also cutting-edge neurological testing. By collaborating with neurology and other medical disciplines, the trust could develop a more holistic, multidisciplinary approach to patient care, ensuring that no stone is left unturned in the search for the true causes of psychiatric symptoms.
As the field of psychiatry continues to evolve, it is critical that mental health services at LPFT keep pace with these advancements. It is time for the trust to invest in the future of care, moving beyond the anachronisms of the past and embracing the precision and accuracy that modern medical technologies can provide.
The risk of continuing on the current path is too great to ignore. It is not just a matter of outdated equipment or terminology—it is a matter of patient safety, trust, and dignity. For the sake of the patients who rely on these services, it is time for LPFT to make the changes that will not only improve diagnoses but also ensure that every individual receives the highest standard of care available.
Conclusion
The ongoing failure to modernise diagnostic tools and adopt cutting-edge psychiatric practices at Lincolnshire Partnership Foundation Trust represents a significant and alarming gap in the care of individuals suffering from mental health disorders. By maintaining outdated equipment and clinical methodologies, the trust is putting patients at risk, potentially misdiagnosing conditions that could otherwise be properly addressed with modern neurological tests and advanced imaging.
It is crucial that LPFT embraces the possibilities of precision psychiatry and updates its approach to diagnosis, not only to improve outcomes but to demonstrate that patient welfare is the top priority. Only then will the Trust be able to provide the high-quality care that is essential for those with mental health challenges.
A delayed discharge case is when a patient is medically ready to leave a hospital but remains there for non-medical reasons. The delay can be caused by factors like a lack of available social care, insufficient community care packages, or issues with the hospital’s own processes. These delays are a major concern as they reduce hospital bed capacity, potentially leading to poorer patient outcomes and increased healthcare costs.
Delayed discharges: why it’s hard to say how many are due to social care capacity
Here’s a multiple-choice quiz. What percentage of delayed discharges from hospital are caused by lack of adult social care capacity? Is it:
a) Most of them
b) 50%
c) 12%
d) There’s no way of knowing for certain.
The answer is d): we just don’t know. You get half a point if you said c) because 12% is the most we can definitely attribute to lack of social care capacity from the publicly available data. However, you’d be forgiven for thinking it was b) or even a) if you simply read the media coverage. In December, the Royal College of Nursing was quoted as saying that there was ‘barely a spare bed’ left in NHS hospitals due to a lack of capacity in social care; while in January, the NHS Confederation was reported as saying that 20% of NHS bed capacity was taken up by patients who were only there because they ‘cannot get a suitable care package’.
“Yet we don’t know the number – because, with the best of intentions, we chose to stop asking.”
Yet we don’t know the number – because, with the best of intentions, we chose to stop asking. In 2020, NHS England stopped separating out reasons for delay between health and social care. The reasoning, based on discussions with health and care organisations, was that delays were often complex, and instead of allocating them to one or other partner, systems should take responsibility, rather than individual sectors.
The most recent data recording, introduced in May 2024, requires discharge hubs (or sometimes wards) to classify the causes of delay into one of five categories:
Hospital process (issues within the hospital’s control, such as medication or transport)
Wellbeing concerns (issues outside the hospital’s control, for example where a family has doubts about a patient’s readiness for discharge)
Care transfer hub process (most commonly where the patient’s destination has not yet been decided)
Interface process (typically where transfer plans are underway but have not yet been completed)
Capacity (where the service needed by the patient is not yet available).
Except for hospital process, all these categories include delays that are due to both the NHS and social care. For patients with stays of at least 14 days (the only publicly available measure), on average 9,309 people were delayed each day in March 2025. Of these, 3,203 delays were ascribed to ‘capacity’, followed by interface process (2,639), hospital process (1,754), care transfer hub process (1,200) and wellbeing concerns (514).
If we focus on those 3,203 capacity delays – because lack of social care capacity is often cited as a key cause of delayed discharges – the single largest reason (966 people delayed) is lack of ‘bed-based rehabilitation, reablement or recovery services’.
This covers a wide range of health and care services, some of which are commissioned by NHS trusts, some by local authorities and some jointly. Even discharge hubs would not be able to allocate them to ‘the NHS’ or ‘social care’. The same applies to ‘home-based rehabilitation, reablement or recovery services’ (502 people delayed), which again cannot be split neatly into social care or NHS.
In fact, only three of the sub-categories – lack of home-based social care services (257), lack of residential or nursing care (762), and people waiting for restart of existing social care services (63) – are solely attributable to social care. But these account for only 34% (1,082) of the 3,203 total ‘capacity’ delays and only 12% of the total 9,309 delayed patients. The real figure for social care delays will be higher because it will include some of the bed-based and home-based rehabilitation and reablement delays but is not counted.
“Yet the NHS and social care are two distinct systems, funded differently, usually commissioned differently and often with different immediate concerns.”
Author:
Into that data vacuum has emerged a range of guesses and estimates, some more authoritative than others. For example, in March NHS England told the House of Commons Health and Social Care Committee that around a fifth of bed days (note that this is a different measure to the publicly available one) lost to delayed discharge ‘are for individuals accessing adult social care packages on discharge’.
In an ideal world, it might not matter. Local systems would be working together to identify problems, avoiding blame and finding joint solutions. Perhaps most are already. Yet the NHS and social care are two distinct systems, funded differently, usually commissioned differently and often with different immediate concerns. On the NHS side, there is intense media and public concern about hospital capacity, A&E waits and ‘corridor care’. On the social care side, there is a longstanding grievance about lack of funding.
In these circumstances, it has sometimes suited both sides for lack of social care capacity to be seen as the key cause of hospital discharge delays. It allows social care to make the case for more money and deflects attention from the NHS causes of delay. This is why the headlines are tolerated, sometimes encouraged.
“It allows social care to make the case for more money and deflects attention from the NHS causes of delay. This is why the headlines are tolerated, sometimes encouraged. ”
Author:
Yet it can still rankle within social care if it is held largely responsible for a problem to which it is, in fact, only a minority contributor. There is a long and inglorious tradition of blaming social care for hospital discharge delays.
There is also irritation about the word ‘capacity’: there is plenty of capacity in care homes, says the sector (occupancy has still not quite returned to pre-pandemic level); the issue is that commissioners (in both the NHS and local authorities) are not sufficiently well organised and are unable or unwilling to pay a fair price for it.
In this difficult environment, avoiding a blame game on hospital discharge was always going to be ambitious. It’s proved to be that – and more. Time to accept reality and publish a credible official estimate of the respective responsibilities for delayed discharge of health and social care.
Address: Joint Committee on Human Rights, Houses of Parliament. London. SW1A 0AA
Key Reports
1. House of Lords Select Committee on the Mental Capacity Act 2005 — “The Mental Capacity Act 2005: Post‑legislative scrutiny” (March 2014)
Summary & main criticisms:
Found that the Mental Capacity Act 2005 (MCA) “has not been widely implemented” and that persons lacking capacity are being let down. Hansard+2Parliament News+2
Criticised DoLS as being “not fit for purpose”. They described DoLS as “poorly drafted, overly complex and bear[ing] no relationship to the language and ethos of the MCA”. Parliament News+2Parliament News+2
Concluded that “thousands, if not tens of thousands, of individuals are being deprived of their liberty without the protection of the law” because DoLS were not being properly implemented. Parliament News+1
Recommended that DoLS be replaced by legislation “in keeping with the language and ethos of the MCA as a whole”. Parliament News+1
Also recommended the establishment of an independent oversight body for the MCA. UK Parliament Committees+1
Why it matters: This was one of the first major parliamentary reviews to lay bare systemic shortcomings in DoLS — both in design and implementation. Its recommendations partly led to the development of the Mental Capacity (Amendment) Act 2019 (which introduces the Liberty Protection Safeguards, LPS) and wider reform. Parliament News+1
Joint Committee on Human Rights rds”* (July 2018)
Summary & main criticisms:
Focuses specifically on DoLS and their human rights implications under Article 5 (right to liberty) of the European Convention on Human Rights (ECHR). Parliament Publications+1
Highlights that the DoLS scheme is failing to protect rights because of delays, backlogs and insufficient legal challenge routes. For example:
“Every person who is deprived of their liberty without the completion of an application within statutory time‑frames is unlawfully deprived of their liberty.” UK Parliament Committees+1
Points to official statistics showing only ~19–24% of standard DoLS applications were completed within the statutory 21‑day timeframe. UK Parliament Committees+1
Called on the Government to ensure proper compliance and to implement alternative arrangements while LPS reforms were being rolled out. Parliament Publications
Why it matters: This report emphasises the rights dimension of DoLS failures — not just process or resource issues, but fundamental human rights (liberty, security) being put at risk for vulnerable adults lacking capacity.
Care Quality Commission (CQC) — “State of Care: Deprivation of Liberty Safeguards (DoLS)” (2022/23 & 2023/24 editions)
Summary & main criticisms:
The 2022/23 edition: reports that over 300,000 DoLS applications were made, but only 19% of standard applications were completed within the statutory 21‑day timeframe. Care Quality Commission
The 2023/24 edition: states “Too many people are waiting too long … we are concerned about the rights of people at the heart of the DoLS system. … The system has needed reform for over 10 years.” Care Quality Commission
Points out that delays, backlogs and variable knowledge among staff leave many without legal protection while deprived of liberty. Care Quality Commission+1
Why it matters: These are key regulatory oversight reports showing the ongoing, systemic nature of the problems with DoLS — despite earlier warnings and reviews. They provide strong up‑to‑date empirical evidence of the failure to meet statutory requirements and protect rights.
Replace DoLS with new legislation; independent oversight body. Parliament News
Joint Committee on Human Rights
2018
Rights breaches: major delays, backlog, non‑compliance, vulnerable people affected. Parliament Publications+1
Government must ensure compliance; expedite reform to LPS.
CQC – State of Care (DoLS)
2022/23 & 2023/24
Ongoing systemic problems: backlog, delays, many without legal protection while deprived of liberty. Care Quality Commission+1
Need for substantial intervention; rollout of LPS delayed but essential.
Additional Context & Reform Trajectory
The Supreme Court’s decision in Cheshire West & Chester Council v P & Q (2014) expanded the definition of deprivation of liberty. This caused a large rise in DoLS applications and increased pressure on the system.
In response, the Law Commission reviewed DoLS and proposed the replacement scheme: the Liberty Protection Safeguards (LPS). BASW+1
The Mental Capacity (Amendment) Act 2019 was passed to introduce LPS. However, as the CQC reports note, implementation of LPS has been delayed, which means DoLS remain in force and their defects continue to impact people.
The Mental Capacity Act is failing, says Lords
Vulnerable adults are being failed by the Act designed to protect and empower them. Social workers, healthcare professionals and others involved in the care of vulnerable adults are not aware of the Mental Capacity Act, and are failing to implement it. That is the key finding of the House of Lords Committee established to scrutinise how the Act is working in practice, as outlined in its report published today.
The Committee is recommending that an independent body is given responsibility for oversight of the Act in order to drive forward vital changes in practice. The Committee also found that the controversial Deprivation of Liberty Safeguards (DoLS), inserted into the Mental Capacity Act in 2007 by the Mental Health Act, are not fit for purpose. The Committee is recommending that the DoLS be replaced with legislation that is in keeping with the language and ethos of the Mental Capacity Act as a whole.
Chairman of the Committee, Lord Hardie, said:
“When the Act came into being, it was seen as a visionary piece of legislation, which marked a turning point in the rights of vulnerable people; those with learning difficulties, dementia, brain injuries or temporary impairment. The Committee is unanimous that this is important legislation, with the potential to transform lives.
“However, what is clear from the substantial volume of evidence we have received is that the Act is not working at all well. That is because people do not know about the Act, or do not understand it, even though many professionals have legal obligations under it. Those who may lack capacity have legal rights under the Act, but they are not being fulfilled. In many cases complying with the Act is treated like an optional add-on – nice to have, but not essential. In short, the Act is not being implemented.
“The Committee believes that the Act is good and it needs to be implemented. What we want to see is a change in attitudes and practice across the health and social care sector which reflects the empowering ethos of Act. To achieve this we recommend that overall responsibility for the Act be given to an independent body whose task will be to oversee, monitor and drive forward implementation. At present there are many bodies involved in implementing the Act, but there is no single organisation which is in charge. And the effect of that can be seen in the Act’s patchy implementation. Ministers would still be ultimately responsible for the Act, but placing an independent body in charge would provide a focus for activity to raise awareness and improve practice.
“Our other key finding concerns the Deprivation of Liberty Safeguards. The intention of the safeguards is to provide legal protection for people who are being deprived of their liberty for their own safety. For example, someone with dementia may be prevented from leaving a care home alone because they are at risk of getting lost. The safeguards are there to ensure that such restrictions are not placed on people without good reason, and without considering less restrictive options first. It also provides a means to challenge such arrangements.
“We were very concerned by what we heard about the safeguards. The evidence suggests that tens of thousands of people are being deprived of their liberty without the protection of the law, and without the protection that Parliament intended. Worse still, in some cases the safeguards are being wilfully used to oppress individuals and to force decisions upon them, regardless of what actions may be in their best interests.
“The criticism of the safeguards extended to the legislative provisions themselves; we were told the provisions were poorly drafted, overly complex and bureaucratic. A senior judge described the experience of trying to write a judgment on the safeguards as feeling “as if you have been in a washing machine and spin dryer”. Even if implementation could be improved, the legislation itself is flawed.
“In the face of such criticism, the only option is to start again. The Government needs to go back to the drawing board to draft replacement provisions that are easy to understand and implement, and in keeping with the style and ethos of the Mental Capacity Act.”
The Committee further recommends that:
Government works with regulators and professional bodies to ensure the Act is given a higher profile in training, standard setting and inspections;
Government increases the staff resources at the Court of Protection to speed up handling of non-controversial cases;
Government reconsiders the provision of non-means tested legal aid to those who lack capacity, especially in cases of deprivation of liberty;
Local Authorities use their discretionary powers to appoint Independent Mental Capacity Advocates more widely than is currently the case;
Government addresses the poor levels of awareness and understanding of Lasting Powers of Attorney and advance decisions to refuse treatment among professionals in the health and social care sectors;
Government review the criminal law provision for ill-treatment or neglect of a person lacking capacity to ensure that it is fit for purpose.
The Committee also recommends that the House of Lords seek an update from the Government twelve months from now to find out what they have done in response to their key recommendations.
You can watch a YouTube video of Lord Hardie giving an overview of the Committee’s report by following the link.
Deprivation of Liberty Safeguards (DoLS)
Key findings
Too many people are waiting too long for a Deprivation of Liberty Safeguards (DoLS) authorisation, despite multiple examples of local authorities trying their best to reduce backlogs and ensure sustainable improvement.
We remain worried about the rights of people at the heart of the DoLS system. We continue to see people in vulnerable circumstances without legal protection, which not only affects them but also their families, carers, staff and local authorities.
The system has needed reform for over 10 years. Unless there is substantial intervention, we are concerned that these challenges will continue.
The Deprivation of Liberty Safeguards (DoLS) were introduced under the Mental Capacity Act (MCA) 2005. The safeguards were designed to protect the human rights of people aged 18 or over if they do not have the mental capacity to consent to their care arrangements and they need to be deprived of their liberty. The safeguards apply in care homes and hospitals.
If a person is deprived of their liberty, they are not free to leave the premises on a permanent basis, for example to live where and with whom they choose to, and they are subject to continuous supervision and control. This means they are monitored or supervised for significant periods of the day and they are not allowed to make important decisions about their own life. The safeguards are vital in ensuring that such deprivation of liberty only happens when it is necessary, proportionate and in the person’s best interests.
Concerns have been raised about the effectiveness of the DoLS system for over 10 years. In 2014, the House of Lords MCA post-legislative scrutiny report warned of the lack of understanding and poor implementation of the safeguards, which meant that, “thousands, if not tens of thousands, of individuals are being deprived of their liberty without the protection of the law.”
In successive State of Care reports, we have raised strong concerns about the operation of DoLS, including delays in processing applications and the variable knowledge of staff about the safeguards. Across both health and social care services, we continue to find that many of the issues outlined in the House of Lords report are still relevant 10 years on and have been exacerbated by the stark increase in the volume of applications, bringing new challenges for the DoLS system.
DoLS were due to be replaced by the Liberty Protection Safeguards (LPS). These would have addressed the main limitations of the DoLS system, such as:
streamlining processes
extending the scheme to cover 16 and 17-year-olds
giving families greater involvement
applying the safeguards to additional settings, including people’s homes and supported living services
crucially, giving responsibility for issuing authorisations to NHS trusts and integrated care boards, along with local authorities, to reduce the strain on the system.
However, in April 2023, the government announced that the implementation of LPS would be delayed “beyond the life of this parliament”. At present, it is unclear when or if the LPS reforms will be implemented. We are keen to establish a dialogue with the new government about this.
Within a system struggling to cope, in 2023/24 we continued to see people in vulnerable circumstances being left without legal protection with their rights affected. This not only affects people using services but also their families, carers, staff and local authorities.
The chronic backlogs
Ten years ago, a landmark Supreme Court judgement, known as ‘Cheshire West’, clarified and broadened the definition of what constitutes a deprivation of liberty. Since then, applications to deprive a person of their liberty have continued to increase far beyond the levels expected when the safeguards were designed.
This has culminated in local authorities facing unprecedented volumes of DoLS applications, and in many cases, continuing backlogs to process them, as we have reported in previous State of Care reports. In 2023/24, applications to deprive a person of their liberty increased to just over 330,000, an 11% increase compared with the previous year.
The delays in implementing LPS mean that local authorities are still the only organisations able to give a standard DoLS authorisation. To do this, local authorities have 21 days in which to assess whether the deprivation of liberty is appropriate. But in 2023/24, only 19% of standard applications were completed within the statutory timeframe. In recent years, backlogs for processing applications have remained high, with figures showing 123,790 people were waiting for an authorisation as at March 2024.
Applications to deprive a person of their liberty must be authorised by a ‘supervisory body’. In England, the role of a ‘supervisory body’ is undertaken by local authorities, who are responsible for arranging assessments to make sure that a deprivation of liberty is only authorised if certain requirements are met. Standard authorisations can last for up to a year. If a person urgently needs to be deprived of their liberty before they have had a full assessment, providers can grant themselves an urgent DoLS authorisation. These can last up to 7 days and can be extended for a further 7 days if necessary.
We found a wide variation in how local authorities were managing applications in 2023/24. It was clear that some were struggling to process applications promptly enough, and yet one local authority had no backlogs. We continue to hear from our external stakeholders that the DoLS system is “not working” and there is “no movement once the application has been submitted.”
Some local authorities had high numbers of applications waiting to be reviewed, which meant some people had been waiting for an assessment for over a year. We are particularly worried about people’s human rights in these cases, as assessments may highlight that their care is more restrictive than it needs to be. When local authorities can carry out assessments, we have seen how this can identify unnecessary restrictions so that DoLS conditions can be used to mandate that care arrangements are the least restrictive possible.
Variation in backlogs between different local authorities means people in similar situations may have different experiences of the DoLS system because of where they live. Many factors contribute to this variation, including budget allocation, the make-up of local populations, and the number of hospitals and care homes in an area.
Local authority backlogs also have a knock-on impact on hospital and care home staff: while waiting for DoLS applications to be reviewed, they have to balance keeping people safe with protecting their rights. Our inspectors told us about staff feeling stressed and confused trying to navigate the DoLS system when waiting for an authorisation. Worryingly, our inspections and assessments have also highlighted instances where backlogs in processing existing applications mean some care providers have stopped submitting new applications. This means people have restrictions placed on them without an application or any legal safeguards.
Providers must formally notify CQC without delay when they know the outcome of an application for a deprivation of liberty, whether it was made to the Court of Protection or under DoLS. This includes both when an authorisation has not been granted or the application has been withdrawn.
In 2023/24, we received around 161,000 DoLS notifications, a 23% increase from the previous year. Recent changes in data reporting have highlighted some discrepancies between the data collected by local authorities and data we hold on notifications from providers, and we are taking steps to understand the reasons for this.
Behind the backlogs
To better understand the pressure on local authorities, this year we surveyed representatives from the National DoLS Leads Network and heard the views of over 50 respondents from supervisory bodies across England. We heard widespread concern from the local authorities that they are often significantly under-resourced to process increasing volumes of DoLS applications, as their funding has not increased in line with the number of people requiring assessments. One local authority told us:
DoLS is a broken system. It was designed for a pre-Cheshire West time with relatively few applications. It is impossible to make it work with the resources we have, leading to a big backlog…The situation is so bad that, if we just stopped getting any applications and just assessed people from the backlog, we would be doing this for around 18 months just to clear it.
Insufficient staffing levels were also identified as a primary barrier to performance. Many supervisory bodies are struggling to recruit enough assessors, with some local authorities relying significantly on independent assessors to manage the volume of applications. Some respondents noted high staff turnover within DoLS teams, describing working in this area as a “marmite experience” where members of staff either thrive, or more often, leave the service.
Amid these challenging circumstances, a member of our external stakeholder group described local authorities going “above and beyond to create systems that are as safe as possible.” NHS England data shows that the number of applications completed by local authorities has increased over the last 5 years by an average of 9% each year. But while DoLS backlogs decreased by 2% in 2023/24, the number of people waiting for an authorisation remains significant. In our assessments of local authorities, we have seen multiple examples of supervisory bodies trying their best to reduce backlogs and ensure sustainable improvement. For example, many local authorities adopt risk-based approaches and tools to prioritise applications. We also saw local authorities recruiting and training more best interests assessors.
Respondents to our National DoLS Leads Network survey frequently cited the ADASS screening tool as a way of helping local authorities to prioritise applications, by categorising them as either high, medium or low priority. However, this method relies on detailed, accurate DoLS applications. We heard that many local authorities are not always confident that the information services provide on DoLS applications is correct. This increases the risk that people who urgently require an assessment are not being appropriately prioritised. Although tools can help local authorities to identify those in need of urgent attention, the statutory 21-day timeframe applies to all standard DoLS applications and the need to prioritise may be another symptom of a broken DoLS system.
We are also concerned that the use of prioritisation tools may result in some groups of people, such as people with a learning disability or living with dementia, being disproportionately affected by delays in processing DoLS applications. A respondent from the National DoLS Leads Network noted that while these people usually meet the requirements for DoLS, they often do not meet the prioritisation criteria and may be “overlooked”. We also heard from a member of our external stakeholder group about some assessments being carried out virtually. While this may offer greater flexibility, virtual assessments are not always suitable for the people who are being assessed. A member of our external stakeholder group reflected that differences in the way local authorities approach DoLS makes it difficult to support managers of care homes spread across different counties.
Local authorities told us that ongoing issues with the level of understanding of the safeguards among health and social care staff can exacerbate the backlogs. We heard that applications from care homes and acute hospitals are not always appropriate, and we have also seen evidence of this, with some staff unclear on the circumstances that require a DoLS authorisation. This risks people who need the safeguards getting lost in the high volume of referrals, or not having an application made when they need one. Local authorities found that the quality of mental capacity assessments made by providers before they submit an application was sometimes poor, which can also result in unnecessary applications. It also means that they may need to contact providers to get information that should have been included in the application, thereby delaying the process and requiring additional resources from all parties.
Another factor that has a negative impact on the backlogs is a lack of communication between providers and local authorities. When providers apply promptly for DoLS renewals, it can help reduce workloads for supervisory bodies. Yet, we heard this does not always happen in practice. In addition, local authorities are not always informed of important changes following submissions, such as a person dying, being discharged, admitted to hospital or their condition changing. These people therefore remain on the waiting list for DoLS when they may no longer need to be. In other circumstances, providers may also not communicate important changes such as objections or increased restrictions, preventing local authorities from giving priority to some assessments that need it.
Limited understanding of the Mental Capacity Act and DoLS
The Mental Capacity Act 2005 (MCA) directly affects the lives of millions of people. Everyone providing care to people over the age of 16 must be familiar with this vital piece of legislation, which introduced rights and protections for people who may lack mental capacity. A decade after the House of Lords report, we continue to find a lack of understanding of the MCA among providers.
Any action taken as part of the DoLS process must be in line with the principles of the Act. While providers often demonstrate an awareness of the MCA and its principles, many managers and staff still lack confidence in applying them in their work. This is reflected in care records, mental capacity assessments and best interests decisions. We found that some care records did not show how best interests decisions were made and how the appropriate people were involved.
A key principle of the MCA is that people should be cared for in a way that least restricts their rights and freedoms. This principle shines through every aspect of the Act, including DoLS. For example, we saw services routinely reviewing restrictions to check if they remain the least restrictive option, rather than assuming the restrictions continue to be necessary simply because a DoLS authorisation was granted. However, providers continue to have a mixed understanding of DoLS. Some struggle to understand when the safeguards apply and we also saw examples of DoLS applications from providers that:
did not include capacity assessments
did not specify what and why specific restrictions were needed
failed to acknowledge less obvious restrictions that were already being implemented, such as sensor movement trackers or bed rails.
Worryingly, we also heard of a misconception among some providers that a DoLS application equated to an authorisation being in place.
We saw how, in a few services, a lack of person-centred planning and staffing issues meant there were blanket restrictions – depriving all residents of their liberty despite not being necessary for everyone. One local authority also mentioned that some services are still influenced by a “protection imperative” when caring for older people. In their experience, older adults are more likely to have more restrictive care plans in place, as some providers feel a need to reduce risks to the person regardless of their capacity to make specific decisions.
If people lack capacity to make one decision, it is vital that staff do not assume they lack capacity to make all decisions. Yet, we have seen examples of this happening in some services, which could lead to unnecessary restrictions and is not in line with the Act.
Care plans, mental capacity assessments and DoLS authorisations should be reviewed regularly to ensure they remain appropriate. In our last State of Care report, we highlighted that restrictions were not always reviewed often enough, meaning providers may have missed opportunities to reduce them. This may also be a warning sign of a closed culture. When services stop recognising and reviewing restrictions, they risk becoming part of the culture, passed on and accepted by new employees.
Application of the safeguards
In some services for autistic people and people with a learning disability, we have seen DoLS assessments and authorisations that do not consistently show that the least restrictive option has been considered. DoLS authorisations in these services can also lack information on how people’s emotional and physical wellbeing is protected when they are subjected to restrictive practices such as seclusion and restraint. We have previously raised concerns that poor understanding of the MCA and issues with the management of DoLS are contributing to the overuse of restrictive practices and our policy position is clear that the restrictive practices are only appropriate in limited, legally justified, and ethically sound circumstances in line with people’s human rights.
Our assessments highlighted some differences between hospitals and care homes in the way DoLS are applied. Because the length of stay in an acute hospital tends to be shorter than in a care home, DoLS backlogs mean often patients are not assessed before they are discharged or moved elsewhere. This means that people at the heart of the process may not practically benefit from the protection afforded by the safeguards for most of their hospital stay, despite the work and resources used by providers and local authorities to follow the process in line with the law.
Where a person has a DoLS authorisation in place during a hospital stay, we have seen the positive effects of this on their care. For example, in one case the authorisation meant staff were more aware of the patient’s needs, which was evident in care records. By better understanding the patient and tailoring their care, staff were able to prevent escalations.
However, we also identified a lack of communication about DoLS at some acute hospitals, which affected numerous patients on the ward. For example, we found that people sharing a ward with someone subject to a DoLS authorisation did not always know that certain restrictions, like not being able to open locked doors, only applied to one person. In mental health inpatient settings, we continue to see different interpretations of the interface between the Mental Health Act and the Mental Capacity Act, with the safeguards being used more frequently in wards for older adults.
Although staff should be familiar with the conditions for a DoLS authorisation, this is not always the case. We identified limited oversight of DoLS at some services and we are concerned that the safeguards are viewed as a ‘management issue’ rather than something every team member needs to engage with to protect people’s human rights. A local authority also told us that frequent staff and management changes in care homes represents a challenge, as local authorities do not have the resources to regularly undertake in-depth work with providers to improve their understanding and application of DoLS.
While there is a clear need for further training, we found examples of a lack of training on DoLS in anticipation of the introduction of the Liberty Protection Safeguards. A member of our external stakeholder group explained that providers had invested energy preparing for LPS and some were finding it difficult to adjust to uncertainty around its implementation at such a late stage. However, it is vitally important that services ensure staff have adequate knowledge of DoLS to protect people’s human rights – both now and in the future.
New registrations and the Mental Capacity Act
Concerns around providers’ knowledge of DoLS and the MCA are mirrored in an analysis of our regulatory enforcement data on Notices of Proposal. At the point of registration, we expect all providers to demonstrate a clear understanding of the MCA and, when applicable, DoLS. As the regulator, we will serve a Notice of Proposal to impose conditions on a new provider or refuse registration if they cannot demonstrate this. We analysed a sample of 139 Notices of Proposal issued in 2023/24 to new adult social care providers and managers applying to register with CQC. This found that almost half the Notices (66) were based on a lack of compliance with standards outlined in the Mental Capacity Act (MCA). In many cases, applicants also failed to demonstrate compliance with other regulations.
Of the Notices of Proposal relating to the MCA, nearly all were refused applications because the applicant lacked vital knowledge in this area. For example, one applicant could not demonstrate that they understood how and when to use restraint. We were concerned that another applicant had a poor understanding of mental capacity, which presented a risk that consent may be gained from a person who is not legally able to give it.
Some Notices of Proposal were issued because applicants could not provide evidence that they would implement the principles of the MCA effectively. One applicant was aware that a representative with appropriate power of attorney was able to provide legal consent, but for people without a power of attorney, there was nothing else in place to ensure that people would benefit from the rights and safeguards afforded by the MCA. It is key that services and managers applying to register with CQC, and their staff, are aware of their responsibilities under the Act, to respect people’s rights in line with both the MCA and Health and Social Care Act regulations.
People’s experience and involvement
DoLS are essential human rights safeguards that were designed to protect people in vulnerable circumstances. Multiple members of our external stakeholder group told us about waiting years for responses to some DoLS applications. This leaves people without legal protection, and some do not have accessible routes to challenge their deprivation of liberty. In some cases, people are receiving overly restrictive care that is not aligned with their needs and does not respect their autonomy. Our updated human rights approach makes clear that care that does not respect and promote human rights is neither safe nor high quality.
Our last State of Care report highlighted how a lack of communication around DoLS authorisations can affect people and their friends and families. It is important that people subject to a DoLS authorisation, their families, and carers have the information they need to understand the process and allow them to advocate effectively. One member of our external stakeholder group felt care settings are getting better at explaining the safeguards and people’s rights, which they linked to the presence of best interests assessors being a “valuable education component”.
However, we remain concerned about issues with communication. Many respondents to the National DoLS Leads Network survey noted confusion and upset among family members who are often unaware that a DoLS application has been made until being contacted by an assessor. Our external stakeholder group echoed this, with many sharing experiences of people and families who felt excluded or unheard. One care home provider explained that relatives of residents who had been determined to lack capacity by a hospital have often not been informed about DoLS, and are surprised when care home staff explain the Mental Capacity Act and DoLS process to them. Another member of the group highlighted that the DoLS process can be very confusing for patients and families, stressing the need for time, patience and a point of call for any questions.
We are particularly concerned about communication around DoLS for people who do not speak English as a first language or who use alternative ways of communicating. For example, we found that some acute hospitals were limited in being able to communicate with patients with a DoLS authorisation in any way other than verbally. Whereas using an alternative form of communication such as Makaton may have helped some patients to understand what was happening to them. Our external stakeholder group spoke of concerns around language barriers and inadequate interpretation services, which caused distress to people using services and their family members. One stakeholder felt these issues can be compounded by poor cultural competency among staff, which can lead to poorer care, less effective interventions, and reduced engagement with services.
Several local authorities felt that more challenges to DoLS authorisations have been brought to the Court of Protection in recent years. When a DoLS authorisation is in place, people have a right to have these arrangements reviewed by a court. It is positive that people are aware of their rights to challenge a deprivation of liberty and are supported to do so. However, a local authority also told us that this can be a time-consuming process, which has a further impact on their resources.
Earlier in this report, we raised concerns about older teenagers who may fall through the gaps when accessing mental health services. Similar concerns about the quality of transitions from children to adult services have emerged through our DoLS survey, with one local authority noting that a ‘start again syndrome’ may happen when a young person enters adult services. They said the information provided by children’s services is often insufficient for planning a DoLS application, which can lead to delays in the DoLS process when the person turns 18. At present, the Court of Protection is also responsible for authorising a deprivation of liberty for young people aged 16 and 17 who lack mental capacity, as DoLS only applies to adults. We heard some frustration from local authorities about delays in LPS implementation, as the new scheme would have helped to speed up authorisations for these young people. Like the DoLS process for adults, we have heard that there continue to be delays associated with the Court of Protection authorisation process.
Protecting people in the future
The DoLS system has needed reform for over 10 years. Unless there is substantial intervention, we are concerned that these challenges will continue, leaving people at the heart of this process without the key human rights safeguards that the DoLS system was intended to offer.
In 2023/24, approximately half of the total number of DoLS applications completed were closed without any assessments happening. This means that, in many cases, the DoLS application process may not bring increased safeguards for people’s human rights, despite the efforts and resources used by care homes and hospitals to submit applications, and local authorities’ work to process and triage these.
With the volume of applications continuing to increase, the current system means that local authorities remain the only organisations able to process them, and many have told us they do not have sufficient resources to cope with the demand. Supervisory bodies told us that increased funding, an updated Code of Practice, better training and regulatory oversight are all factors which could help to improve outcomes for people while we wait for the LPS to be implemented.
While we heard that DoLS remains an “overly bureaucratic system”, local authorities across England have also implemented some improvements to help existing processes run more smoothly. These include:
making assessments proportionate and using equivalent assessments when appropriate
streamlining administrative processes, using IT systems and updating forms
developing strong working relationships between local authorities and providers to improve communication, especially when circumstances change or when a renewal is due
workshops and training for providers to reduce the number of inappropriate applications they receive and improve the accuracy of applications.
Despite these efforts, we remain concerned that the number of people requiring the legal protection afforded by DoLS continues to increase and the system is unable to cope with this demand. Ongoing issues with the DoLS system will disproportionally affect certain groups, such as disabled people and older people, who are more likely to need the safeguards. A recent report by Age UK highlighted that in 2022/23, 84% of DoLS applications were made for people aged 65 or over, and almost 50,000 people died while waiting for their application to be processed. Reflecting on the operation of DoLS, the charity said, “The reality therefore is that the rights of some of the most vulnerable older people in our society have been and continue to be routinely denied.”
Too many people are waiting too long for a DoLS authorisation, while variation in the level of knowledge of staff means that others may not have a DoLS authorisation in place when they need one. For many, the current DoLS system is not providing the vital safeguards they need. After a decade of chronic and widely documented issues, urgent action is required to ensure the system does not continue to fail people in the future.
The “Cheshire West case” refers to a landmark 2014 UK Supreme Court ruling, P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council, which established the “acid test” for deprivation of liberty. It ruled that a person is deprived of their liberty if they are under continuous supervision and control and are not free to leave, regardless of their reasons for being there or their level of objection. This ruling expanded the definition of deprivation of liberty and clarified that anyone in this situation, who lacks the mental capacity to consent, must have their confinement authorised by the Court of Protection or the Deprivation of Liberty Safeguards (DoLS) process.
Key aspects of the ruling:
The “acid test”: To determine if a person is deprived of their liberty, the key questions are:
Is the person under continuous supervision and control?
Is the person not free to leave?
Objective and subjective elements: The ruling confirmed that a deprivation of liberty is determined by an objective test of the care arrangements, which then requires a subjective test of whether the person lacks the mental capacity to consent to their confinement.
Impact on care: The ruling made it more difficult to place vulnerable individuals in care homes or other settings without the proper legal authorisation, and it expanded the use of the DoLS process to ensure legal protection for those deprived of their liberty.
Legal consequences: The judgment requires that any deprivation of liberty for a person lacking capacity must be authorised either by the Court of Protection or by following the Deprivation of Liberty Safeguards (DoLS) process.
DHSC urges Supreme Court to overturn ‘clearly wrong’ Cheshire West ruling on deprivation of liberty
Government says ‘acid test’ set out in landmark 2014 ruling deviated from European Court of Human Rights case law, however charities have warned that its intervention risks removing vital safeguards from disabled people
The UK government has urged the Supreme Court to overturn its landmark Cheshire West judgment on deprivation of liberty in a case that will be heard next week.
In an intervention in the case, which will be heard from 20-22 October, the Department of Health and Social Care (DHSC) said the 2014 judgment was “clearly wrong” because it departed from European Court of Human Rights (ECtHR) case law in relation to the definition of a deprivation of liberty.
The number of Deprivation of Liberty Safeguards (DoLS) referrals hit a new high in 2023-24 but practitioners managed to cut backlogs, official figures have shown.
Care homes and hospitals made 332,455 applications to deprive a person of liberty for their own protection last year, up 11% on the figure for 2022-23, according to NHS England’s annual DoLS data.
Reduction in DoLS backlogs and timeframes
However, despite this, council DoLS practitioners managed to curb both case backlogs and timeframes on the back of a 12% rise in the number of applications they processed during 2023-24, to a record 323,870.
While the average duration of cases remained well above the 21-day statutory timeframe for standard DoLS applications, it fell from 156 to 144 days from 2022-23 to 2023-24.
And the number of uncompleted applications at 31 March 2024 fell by 2% year on year, from 126,100 to 123,790.
About the Deprivation of Liberty Safeguards
DoLS provides a statutory procedure in England and Wales for authorising the deprivation of liberty of people for care or treatment, as required under Article 5 of the European Convention of Human Rights.
Care homes or hospitals (‘managing authorities)’ must apply to councils or Welsh health boards (‘supervisory bodies’) to authorise a prospective or existing deprivation.
Supervisory bodies must then assess whether the six qualifying requirements are met: that the person is 18 or over, has a mental health condition and lacks capacity to consent to the deprivation; that the deprivation does not conflict with requirements of the Mental Health Act 1983, a prior advanced decision by the person or the decision of a Court of Protection-appointed deputy or a donee of lasting power of attorney; and that being deprived of their liberty is in their best interests, necessary to protect the person from harm and a proportionate response to the severity or likelihood of that harm.
The last of those checks is carried out by a best interests assessor, who is typically a social worker and generally co-ordinates the assessment process.
Where the qualifying requirements are met, the supervisory body grants the managing authority a ‘standard authorisation’ to deprive the person of their liberty for a maximum of 12 months.
The DoLS process must be completed within 21 days, other than when the managing authority has granted itself an ‘urgent authorisation’ to deprive the person of their liberty, in which case it should take seven days.
The figures showed that DoLS practitioners processed more than three times as many cases in 2023-24 compared with 2015-16 (105,055), during which time the number of referrals less than doubled.
As has been the case since 2019-20, more completed applications were not granted in 2023-24 (181,940) than granted (141,925).
Uncompleted assessments
However, for the first time, the data demonstrated that, in the vast majority of cases where an authorisation was not granted, the application was closed without an assessment being started (162,655) or completed (15,270). Where an assessment was completed – in 145,945 cases – 97% resulted in a DoLS authorisation.
In cases that were closed without an assessment being carried out, this was likely to be because the person’s circumstances had changed or they had died before the process could be started.
Unsurprisingly, these cases were concentrated in acute hospitals, where DoLS authorisations are required relatively briefly during a treatment episode.
Of 100,550 applications made by acute hospitals in 2022-23, just 4,645 resulted in a completed assessment.
Under the Court of Appeal’s judgment in R (Ferreira) v HM Senior Coroner for Inner South London [2017], there is no requirement for a DoLS authorisation in cases where a person is receiving life-saving treatment that did not differ from what would be given to a person without a mental health problem.
Policy Critique: Form OPG130 and the Risk of Procedural Injustice in the Safeguarding Process
Executive Summary
Form OPG130, issued by the Office of the Public Guardian (OPG), is intended as a tool to report concerns about the conduct of an attorney or deputy acting under a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA). While the objective of safeguarding vulnerable donors is legitimate and necessary, the design and operational use of this form raise significant concerns about procedural fairness, the presumption of innocence, and the potential for reputational and legal harm to individuals accused of abuse without evidence.
This critique highlights key flaws in the current policy underpinning Form OPG130, particularly the use of pre-determined abuse categories and the ease with which an individual may be named as a perpetrator without recourse to immediate defence or redress. The form’s structure and implementation risk facilitating unsubstantiated allegations, undermining natural justice, and ultimately diminishing trust in the safeguarding framework.
Overview of Form OPG130
Form OPG130 allows any person to report concerns about a donor’s welfare or decision-making arrangements. The form includes:
A list of pre-defined abuse categories (e.g., financial, physical, emotional)
Fields for describing incidents or concerns
A section to name the person(s) alleged to be responsible
The OPG uses this information to determine whether further investigation or referral is warranted. However, the form’s design and handling processes merit critical examination.
Pre-Determined Abuse Categories: Oversimplification and Presumption
The form presents a tick-box list of abuse types without requiring the complainant to demonstrate a credible threshold of evidence. These categories—while reflective of genuine safeguarding concerns—are problematic in policy terms due to:
Subjectivity: Terms like “emotional abuse” or “neglect” lack clear, uniform definitions in lay usage and may be applied inconsistently.
Ease of allegation: The form allows serious allegations to be made without scrutiny, inadvertently lowering the bar for potentially harmful or false claims.
Implied validation: By embedding abuse categories in the form’s structure, the OPG may be seen to lend credence to claims at the point of receipt, regardless of merit.
From a policy design standpoint, this introduces a presumption that once an allegation is made, it holds sufficient weight to prompt intervention—even absent corroborating evidence.
Identification of ‘Perpetrator’: Accusation Without Defence
The form explicitly invites the complainant to name an individual they believe to be responsible for the alleged abuse. Critically:
No evidentiary threshold is required at the time of submission.
The accused is not notified at this early stage and therefore lacks the opportunity to respond in real time.
The allegation is effectively recorded in an official safeguarding process, potentially triggering investigations and reputational consequences.
This policy design runs counter to fundamental principles of fairness and accountability. It lacks procedural balance and undermines the presumption of innocence, creating a high risk of injustice to those accused.
Absence of Safeguards Against Malicious or Misguided Reporting
There is currently no clear mechanism within Form OPG130 to:
Vet the credibility or motivation of the complainant at the initial reporting stage;
Require declarations of truthfulness under penalty of law;
Penalise false or malicious reports.
This gap in policy fails to protect individuals from being targeted as part of family disputes, inheritance conflicts, or personal grievances unrelated to actual abuse. The absence of meaningful safeguards creates a significant risk of misuse.
Disproportionate Consequences and Asymmetric Rights
The policy framework surrounding Form OPG130 allows potentially severe consequences to flow from unsubstantiated allegations:
Suspension of powers of attorney
Disruption of care arrangements
Reputational and emotional harm
Referrals to safeguarding boards or police
In contrast, the accused has no structured pathway to rebut or contextualise the allegation at the outset. The process is asymmetrical, offering protections to the complainant but none to the accused. This undermines legal norms such as:
Audi alteram partem – the right to be heard
Equality of arms in quasi-judicial processes
Proportionality of state intervention
From a public policy perspective, this imbalance erodes trust in safeguarding systems and may deter capable attorneys from continuing in their roles.
Policy Recommendations
To ensure that safeguarding mechanisms remain fair, effective, and accountable, the following reforms to Form OPG130 and its associated procedures are recommended:
Evidentiary Threshold
Require complainants to provide specific supporting information and, where possible, documentary evidence to substantiate allegations.
Declaratory Statement
Include a formal declaration that allegations are true to the best of the complainant’s knowledge, with a warning about the legal consequences of false reporting.
Initial Credibility Screening
Introduce a triage mechanism within the OPG to assess the plausibility and seriousness of allegations before any formal investigative steps are taken.
Right of Reply
Establish a structured process for notifying accused individuals and offering a prompt opportunity to respond before further action is initiated, except in urgent risk cases.
Transparency and Record-Keeping
Ensure that accused individuals are informed of any allegations retained in official records and have access to a clear process for rectification or removal of unfounded accusations.
Guidance and Training
Provide clear public guidance on what constitutes different types of abuse and the threshold for reporting, to reduce misunderstanding and inappropriate referrals.
Form OPG130, as currently implemented, lacks adequate safeguards to prevent misuse and fails to uphold key principles of natural justice. While protecting vulnerable individuals is a core function of the Office of the Public Guardian, this must not come at the expense of procedural fairness or the rights of those accused.
A rebalancing of the policy framework is urgently required to preserve the integrity of the safeguarding process, protect all parties involved, and ensure public confidence in the operation of powers of attorney.
Critical Analysis of Form OPG130: Concerns About a Donor (LPA/EPA) – Focus on Pre-Determined Abuse Categories and Injustice Toward the Accused
Introduction
Form OPG130, issued by the Office of the Public Guardian (OPG) in the United Kingdom, is designed to allow concerned individuals to report suspicions of abuse regarding a donor under a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA). While the safeguarding of vulnerable individuals is a crucial function of the OPG, the design and structure of OPG130—particularly the use of pre-determined abuse categories and the approach to identifying alleged perpetrators—raises significant concerns about procedural fairness, natural justice, and the rights of the accused.
Pre-Determined Categories: Presumption of Guilt
The form lists predefined categories of abuse such as:
Financial abuse
Physical abuse
Emotional or psychological abuse
Neglect
Sexual abuse
These categories, while reflecting real and serious types of harm, may lead to unintended consequences when placed on a reporting form without context or an evidentiary requirement. The issue lies not in their inclusion per se, but in how they are presented:
Tick-box simplicity: The form allows allegations to be made simply by ticking boxes. There is often no requirement for substantial evidence, corroboration, or detailed narrative beyond what the reporter chooses to provide.
Ambiguity and subjectivity: Terms like “emotional abuse” or “neglect” can be highly subjective and open to interpretation. In family or care contexts, particularly those involving complex dynamics or disagreements over care decisions, such labels can be misused or misunderstood.
By structuring the form this way, the OPG risks encouraging speculative or malicious allegations under the guise of safeguarding, with little scrutiny at the reporting stage.
Identification of the ‘Perpetrator’ Without Evidence
Perhaps the most troubling aspect of the form is the section that invites the reporter to name the “person responsible for the abuse”—effectively labelling an individual as a perpetrator before any investigation has taken place.
No burden of proof: The form does not ask the reporter to present evidence beyond their own account. There is no legal threshold to meet before someone’s name is recorded as a suspected abuser.
Impact on the accused: Once named, a person can be subjected to investigations, reputational damage, and distress—all before they are even notified of the allegation, let alone given a chance to respond.
No right to immediate response: The accused does not have automatic recourse to challenge the allegation at the point of submission. The OPG may begin inquiries or refer matters to social services or police without the accused having the opportunity to correct inaccuracies or defend themselves.
This dynamic can result in serious miscarriages of justice, particularly where allegations are made maliciously, based on misunderstandings, or as a result of personal disputes.
Injustice and the Erosion of Natural Justice
At the heart of the criticism is a fundamental lack of procedural fairness—commonly referred to as natural justice. The principles of natural justice include:
The right to a fair hearing
The right to be informed of allegations
The right to respond to and challenge those allegations
The right to an impartial investigation
Form OPG130, in its current structure, undermines these principles:
No balancing mechanism: There is no equivalent form or process for an accused person to formally respond at the same stage. The investigative process may not include or prioritize the perspective of the accused until later—if at all.
Risk of disproportionate responses: The mere presence of an allegation may trigger significant interventions, such as suspension of powers or referral to authorities, regardless of whether the claims are substantiated.
No penalties for false allegations: There appears to be no clear warning on the form about the consequences of making false or malicious accusations, which would serve as a deterrent to misuse.
Potential for Abuse of the Safeguarding Process
Ironically, a form intended to prevent abuse may itself be vulnerable to being used abusively. Disputes over finances, inheritance, family dynamics, or care decisions may prompt individuals to use the form as a weapon—especially when there is no immediate scrutiny of their motives or evidence.
This creates a paradoxical situation:
The vulnerable party may become more vulnerable: Disruption caused by false allegations can destabilize care arrangements or damage trust between the donor and attorney.
The accused may suffer irreversible harm: Reputational damage and emotional distress can occur even if the allegations are ultimately dismissed.
While the safeguarding of donors under LPAs and EPAs is undeniably important, Form OPG130 in its current form presents serious concerns about fairness and justice. The use of pre-determined categories of abuse and the ease with which an individual can be labelled a perpetrator without evidence or recourse undermines the principles of due process and opens the door to misuse.
To align better with principles of justice and the rights of all parties involved, the OPG should consider reforms such as:
Introducing a requirement for supporting evidence
Ensuring allegations are screened for credibility before action
Providing an immediate and equal opportunity for the accused to respond
Including clear warnings about the consequences of false reporting
Safeguarding systems must protect the vulnerable, but they must also guard against the abuse of the process itself. Without a balance, the very tools designed to uphold justice may become instruments of injustice.
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Psychiatric Abuse UK 