The right to liberty of older people with diminished capacity in care homes is in complete disarray and in urgent need of reform, according to a new report.

Age UK’s Hidden Crisis report says almost 50,000 older people have died without proper legal safeguards in place and over 100,000 cases are awaiting authorisation.

Caroline Abrahams, Age UK charity director, said: “Personal liberty is part of our birthright and central to our understanding of what it means to live in a democracy, so it is profoundly shocking that so many older people with diminished capacity are living and dying without the proper legal protections for limiting their freedoms being in place.”

Abrahams warned of the “nightmare scenario” where older people are locked in their care home against their best interests.

She said Age UK had heard of cases where a care home was reluctant to constrain the movements of an older person who is at risk without legal authorisation.

The charity said the Deprivation of Liberty Safeguards (DoLS) process, which provides a set of checks to ensure that the deprivation of liberty is in the person’s best interests, was not working well in practice and for an alarming number of older people was not working at all.

The report highlighted significant criticism of DoLS since their introduction in 2009 noting a 2014 House of Lords report which concluded they were “not fit for purpose”. It also highlighted widespread lack of Mental Capacity Act knowledge among care professionals, including a lack of training and inadequate support for individuals or families who want to challenge DoLS decisions.

Age UK also noted the government’s failure to introduce replacement Liberty Protection Safeguards legislation which was set out in the Mental Capacity (Amendment) Act 2019.

Abrahams added: “The failure of successive governments to grasp the nettle of ensuring there’s a functioning system for safeguarding older people’s liberty if they lose their mental capacity is symptomatic of their broader failure to reform and refinance social care.

“At Age UK we support reform of the current system, via the replacement scheme the government proposed a few years ago but then subsequently shelved – provided it delivers effective human rights protections for older people. In the meantime, we believe it is essential that the government properly funds the system that is in place, until reform can happen. It should also give local authorities the resources to begin to tackle the backlog.”