As Community Care publishes the findings from our deprivation of liberty safeguards investigation, a social worker involved in Dols work shares his experiences of how a surge in cases is impacting practice…
If I’m honest, it feels like the Supreme Court’s ‘Cheshire West’ ruling is unimplementable at the moment, at least in full. The numbers have increased so much that we can only prioritise the ones where we think there is the biggest level of restriction and the most contentious. That means you’re only getting the high-risk cases prioritised. You end up with assessors not just facing an increase in numbers but also an increase in complexity.
What worries me is that I feel like the government has left us in a place where we can’t comply with the law. We hear that the Association of Directors of Adult Social Services and the Local Government Association have made the case to government for more resources but the word back, at least from what we hear, has been that ‘you’re unlikely to get any, at least until after the next election’.
I read the government’s statements about this but they don’t ever seem to recognise the sheer size of the problem here and the scale of unassessed referrals that are building up. I just don’t see anything that indicates they are giving this priority.
The ‘head in the sand’ approach – which many councils also had for too long – can’t continue. This isn’t going away. I know that locally we can expect more cases. Acute hospitals haven’t been sending in applications that they should have been. I’ve seen estimates from reputable legal experts that if this judgement is applied in full and to the letter we could be talking about an astronomical rise in cases that is way beyond the current ten-fold increase.
The main thing is that we have a situation where unlawful practice is going on and it is affecting people’s human rights. It feels like government and local authorities are relying on people not knowing their rights and not testing things through the courts.
The most important thing here is the impact this has on people. But I’d be lying given my position if I said that the risk people will challenge and be entitled to compensation isn’t a concern. We know that in the past, the courts have set compensation levels for people that have been deprived of their liberty without due process and it has been in the order of thousands of pounds a month for each case. Imagine the cumulative impact of that across all councils. It is a potentially budget breaking level of compensation.
What is the best way forward? Personally, I think some kind of streamlined Dols process is going to be needed.
We’ve seen the Court of Protection rule that a streamlined system for authorising deprivation of liberty cases not covered by the Dols, such as supported living and Shared Lives schemes, can be compliant with human rights law. I think something similar for Dols cases, where paper-based applications could be triaged and ‘triggers’ or warning signs would automatically lead to a full process, might be the only way things could work with the new numbers that are being talked about. It will be interesting to see what the Law Commission review of the legal frameworks comes up with. It reports in 2017. But right now that feels like a long time away.