Deprivation of liberty: Social workers, lawyers and carers on the impact of a landmark Supreme Court ruling

Community Care gets feedback on how the 'Cheshire West' ruling is impacting across the social care system

Supreme Court UK
The Supreme Court. Photo: Jonathan Hordle/Rex

This week the government has ordered a review of the Deprivation of liberty safeguards (Dols). The review was prompted, in part, by a surge in Dols cases triggered by a Supreme Court ruling in March in the cases of Cheshire West and P&Q.

The ruling effectively lowered the threshold for what constitutes deprivation of liberty in care. In doing so it significantly increased the number of people requiring assessment for protection under the Dols scheme, which covers placements in care homes and hospitals.

The ruling has also led to a significant increase in deprivation of liberty cases in settings not covered by the Dols, notably supported living. These require authorisation by the Court of Protection but cases are generally brought by local authorities, placing an additional strain on councils.

So how have services been coping with the impact of the so-called ‘Cheshire West’ judgement? Over the past few weeks Community Care has been speaking to directors, social workers, advocates and carers to get their perspectives. Here’s what they had to say…

The head of service: ‘This is an immense pressure’

Pic credit: Image Source/Rex

Picture: Image Source/Rex

Jane Timson, head of safeguarding at Rochdale council

The ruling has had a huge impact on day-to-day business for social workers and the pressure is being felt across the whole of our services. Any of our social workers who are trained as Best Interests Assessors (BIAs) are having to obviously do more assessments than previously expected and that is impacting on core business. It’s really difficult to strike a balance when everything that we do comes with statutory obligations to provide services.

The increase in referrals is an immense pressure. We’ve seen a ten-fold increase locally in line with the national picture. Our BIA trained social workers are probably losing two days a week away from their case work. We’ve introduced a rota to try and help their managers plan for that but there is no doubt that it is impacting across the whole of the service in terms of our response to other needs. We’ve had to double our admin support too.

We’ve also moved a couple of social workers to do the BIA role full-time in a dedicated team. It’s a temporary measure while we work out our long-term needs. Their posts are backfilled but that has been quite complicated because no team can afford to lose those social workers. So when you’re backfilling, it means someone from another team has to step up and their team in turn can’t afford to lose them. It’s like a domino effect.

The difficulty is that the immense impact of this is being felt right now but managing it requires strategic changes that are long-term.

Prior to the ruling, we had already introduced a policy where any social worker taking on a ‘level 8’ post would be expected to be BIA trained. But now, with the levels of demand, it’s our intention to train all of our social workers with two years post-qualifying experience to be BIAs and that is going to take time. The training courses could take roughly six months and then you need to get them shadowing experience to make sure they have the skills to undertake best interests assessments. You could be talking nine months between them starting a course and actually starting practising. So there’s no quick fix to this, yet the requests for Dols authorisations are coming in like a tsunami wave.

It’s hard. You find yourself in this awful position where you know you’re doing everything you can to firefight it but you do have some authorisations that are being delayed past [statutory] timescales. Prior to the March ruling that never happened. We never, ever had out of time assessments, so the current situation is uncomfortable.

Our council has had to release a substantial chunk of budget pressure money to cope with this and that’s at a time of council cutbacks. Rochdale has to save £53m over the next three years and that’s on the back of having had to make similar savings in the last few years. Taking £670,000 out of budget pressures is an awful lot of money that we don’t have. The agreement is that f the Treasury or Department of Health releases funds to support this then the money will got back into the budget pressure pot because there are no reserves.

The estimates are that this is costing tens of millions of pounds nationally. I can’t see how the government can’t recognise the burden this is creating for adult care and how it is going to impact our ability to provide core assessments for people in need.

The Best Interests Assessor: ‘We’re flat out’

A social worker in a local authority in the south of England

We have seen a huge increase in applications to such an extent that we are now running a long waiting list. Our BIA team and independent BIAs are working flat out to try to rectify it but it feels like an uphill struggle and some timescales are being missed. Our admin support teams are also struggling and worry that urgent cases are falling behind.

Debates continue among BIAs and colleagues about the ruling. While the conclusion is generally that things are not good at the moment, there are varying degrees of different interpretations of continuous supervision and control and what constititutes a deprivation. Far from the judgement making things easier, in my experience it feels like it generates further confusion and discussion.

Our local authority is offering to train more people up as BIAs in order to help with future assessment demand but unfortunately this takes time and it will be a few months yet before this group are able to help.

The advocate: ‘My priority is my client’

Picture: Cultura/Rex Features

Picture: Cultura/Rex Features

An independent mental capacity advocate (IMCA)

Our workload has increased enormously in light of the ruling and that’s put a strain on budgets. There simply aren’t enough IMCAs on the ground to meet the work – there aren’t enough BIAs either of course. I’ve ended up doing double my usual number of hours just to help relieve the strain from the number of applications coming in. By all accounts there is chaos in local authority safeguarding teams, as it’s usually those teams that handle Dols applications.

We hear of cases where it feels local authorities have asked people to delay or stagger referrals to make things more manageable. You might have a nursing home with 40 or 50 residents and post-Cheshire West all of them meet the acid test and need authorisation. We’ve heard some local authorities will say ‘send us three applications and when we process those send us the next three’. My view is that nursing homes should reject that sort of thing. It runs the risk of causing the law to be broken. I’d say get the applications in for all the cases you feel should be authorised and let the local authority deal with it.

The question we’re facing as IMCAs is how do we best safeguard the interests of our clients when there aren’t enough resources and BIAs? Do we take the pragmatic view and say all parties are doing the best they can? Or do we thump the table and say this simply isn’t good enough? It’s incredibly difficult, especially as you want to have a decent working relationship with local authorities.

There is a risk with the current situation that we are going to be forced to go head-to-head with local authorities. If they are saying ‘look can you just slow down with this because we’re snowed under’ then we have to say ‘no it’s not in our client’s best interests’. I understand that council budgets are under strain, I really do, but I have a client to look out for. At the end of the day I’m not on the local authority’s side, I’m on the client’s side.

The lawyer: ‘We could see challenges’

Jess Flanagan, associate at Clarke Wilmott LLP

I have heard that best interests assessments are not getting carried out quickly enough because there are not enough BIAs to fulfill the role. That seems to be happening across the board. Smaller local authorities seem to be really struggling because big county councils can monopolise the few independent BIAs that are available. There are waiting lists and delays so I think we are likely to see some challenges to unlawful deprivations.

My view is that these challenges will be made where deprivations of liberty have not been authorised due to the sheer amount of individuals who now might meet the ‘acid test’ for being deprived of their liberty. It is going to be an interesting challenge to pick apart. One issue will be whether a delay will be a “reasonable failure” if it is due to the local authority being simply unable to engage a BIA within the prescribed timescales, whether the failures are relevant to their conduct, or decision making processes.

In the case of a challenge, each case will inevitably turn on its own facts.  This is all about a human being and their lives, abilities, personal circumstances, support networks and difficulties. It’s about whether a local authority got their priorities right and how they managed the process. I think local authorities would need evidence that they did all they can to put everything in place to ensure compliance with timescales at the earliest opportunity, that processes were followed and that any delay was justifiably unavoidable. Conceivably one reason could be because of increased demand.

Yes, the Supreme Court judgment has placed a greater burden on councils but the process itself is not new, it has just been extended somewhat. Local authorities all have teams to deal with Dols and their case loads expanded back in April 2013 when they became supervisory bodies for hospital cases. I think they’d need a proper and well documented reason to explain why they had to delay an authorisation and evidence that they had done all they can in the circumstances.

The carers: ‘Councils have been caught out’

Picture: screengrab

Picture: screengrab

Mr and Mrs E, carers in the landmark Bournewood case

Nothing happened with Cheshire West that shouldn’t have happened years ago. All we’re seeing now is local authorities and providers running around like headless chickens trying to catch up with what they should have been doing five years ago when the Dols were introduced. The fuss is only because so many just didn’t engage with Dols and they are now being caught out. The training was appalling, the information was appalling, social workers were slow to grasp it, local authorities and managing authorities wanted to ignore it and – with little penalty for ignoring it – that’s what happened.

Will the Cheshire West judgement improve things for families? We don’t know if it will. With Dols, we’re already seeing councils and lawyers going off on all sorts of tangents to avoid dealing with the process properly. For deprivations that are not covered by the Dols, like supported living, the court of protection is proposing a streamlined system based far more on paperwork than oral evidence.

It feels like that excludes a lot of the protections that are in the Dols – where are the equivalent of best interests assessors, IMCAs, the independent opinions and RPR, representations for an individual? There’s no doubt it will benefit the local authorities and the court by easing the burden on them, but will it benefit the individual? The court has too much faith in the ability, or the willingness, of local authorities to do the whole thing properly. I think there’s a real danger of decisions being rubber stamped without appropriate scrutiny.

Even after Cheshire West the whole process still feels too much in the control of local authorities. They can exclude you from being a representative for the individual in the Dols process because they say you’re not acting in the person’s best interests. We’ve heard of some good practice where the Dols have made life better for people but we also hear from a lot of families who have felt excluded.

Too often the process doesn’t look or feel fair, transparent and independent.

Families have a big challenge confronting processes they haven’t been informed about. For family members or carers challenging a decision it is certain to look like a conspiracy if the managing authority is commissioned by the supervisory body to provide care; the best interests assessor is employed by the supervisory body and, in court, the ‘expert evidence’ is also commissioned by the supervisory body.

How is the Supreme Court ruling affecting you?

  • How is your council dealing with the fallout from the Supreme Court ruling in Cheshire West?

Tell us about your experiences by commenting on this article below or emailing andy.mcnicoll@rbi.co.uk

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