Social care professionals should reassess the cases of people who lack capacity to decide on their care to determine whether they are being deprived of their liberty, in the light of a landmark Supreme Court ruling.
Councils should also assess whether they are spending enough on the Deprivation of Liberty Safeguards (Dols) in the light of the case, which heralds a sharp rise in Dols cases.
That was the message from the Department of Health in an advice note for councils and providers issued in response to the judgement in the P v Cheshire West and Chester Council and P&Q v Surrey County Council cases earlier this month.
The ruling by the UK’s highest court set a revised test for determining a deprivation of liberty that is far broader than those set by previous judgements, meaning many more vulnerable adults are being detained in care settings than was previously thought.
Under the test, people who are under continuous supervision and control in care arrangements that are the responsibility of the state, that they lack the capacity to consent to and that they are not free to leave, are deprived of their liberty. Previous rulings had said that other factors – including the purpose of the placement or whether the person was objecting to it – were relevant, but these have now been thrown out.
The DH advice note said relevant staff in councils and care providers should “take steps to review existing care and treatment plans for individuals lacking capacity to determine if there is a deprivation of liberty” in the light of the ruling.
Where people are deprived of their liberty – and this is judged to be in their best interests – this must be authorised, said the DH.
In care home or hospital placements, providers must apply to their local authority for authorisation under the Dols; in supported living or other domestic arrangements, providers or the relevant council should apply to the Court of Protection for authorisation.
The DH also said councils should review the amount of money they are spending on Dols in the light of the Supreme Court judgement “to ensure they meet their legal responsibilities”.
The department also said councils could consider examining whether they needed more best interests assessors (BIAs), whose role is to assess whether a person is being deprived of their liberty and, if so, whether this is in their best interests.
However, the note added: “It is difficult to predict the number of individual who lack capacity whose arrangements should be assessed in light of the Supreme Court judgement and the number of additional individuals for whom deprivation of liberty will need to be authorised”.
The DH said it would do further work with the Care Quality Commission to assess the practical impact of the Supreme Court judgement.
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I am a BIA, literally all who lack capacity whether they are in residencial, nursing or hospital care will now be classed as having restrictions on their liberty thus meaning they are DOL. The advice to review all cases is simple enough to say, but given the amount of residential homes and nursing homes in my locality, not to mention the amount of hospital referrals that will come through. The task which is so “simple” to advise is a massive undertaking, and look at all the work which is associated with a DOL authorisation! Needless to stay the staffing and time resources required is a near impossibility. The judgement did not really anlalize their decision and it’s implications fully, and look at the amount of possible legal challenges their may be now where people who may not have been considered DOL will now be so. At a time of government cuts, this could not come and a worse time and i sit back and await the Mayhem!