Case backlog leaves ‘worryingly high’ number of people deprived of liberty without authorisation, warns CQC

Regulator finds local authorities have been overwhelmed by impact of Supreme Court's 'Cheshire West' ruling last year

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A backlog of deprivation of liberty cases triggered by a landmark Supreme Court ruling has left a ‘worryingly high’ number of vulnerable people without legal checks on their care arrangements, the Care Quality Commission has warned.

The Deprivation of Liberty Safeguards (Dols) are designed to protect the rights of people lacking mental capacity in care homes and hospitals by providing independent scrutiny of their care arrangements to ensure they are the least restrictive option and in the person’s best interests. Care providers must make an application to local authorities to ‘authorise’ any potential deprivation of liberty. Each referral requires the local authority to carry out six assessments, the most notable of which is the ‘best interests’ assessment’.

The backlog

A CQC review published today found that councils had still to complete 19,429 Dols applications at the end of September 2014, compared with 359 outstanding applications at the end of April 2014. The backlog was driven by the Supreme Court’s ‘Cheshire West’ ruling in March 2014 (see box), which triggered a nine-fold rise in Dols applications that has overwhelmed local authorities.

The Supreme Court ruling

The Supreme Court judgement, in the cases of P v Cheshire West and Chester Council and P&Q v Surrey County Council, brought in a revised test that effectively lowered the threshold for deprivation of liberty in care.

It also rendered irrelevant factors that had been allowed for in the past, such as whether the person objected to their care arrangements.

The judgement was welcomed for extending key human rights safeguards to a broader group of vulnerable people. But it meant that, overnight, many people in care homes, hospitals and supported living arrangements suddenly met the threshold to have their care arrangements assessed or reassessed to see if they were deprived of their liberty and, if so, whether or not this was in their best interests.

“While we appreciate the unprecedented and unexpected increase that local authorities have faced, the very high numbers of applications still to be decided represents a worryingly high number of people who are probably deprived of their liberty unlawfully,” the CQC’s report said.

“In addition, it places a great burden on providers who, although they suspect that they may be depriving people of their liberty, do not have the support of external scrutiny by Dols assessors to find the least restrictive option to meet the needs of each individual. Only by going through the assessment process and an authorisation being given or refused, can providers be given the security of knowing that their care is lawful and the last restrictive option to meet the needs of each particular individual.”

Expectations of councils

The CQC report echoes the findings of a previous Community Care investigation. We revealed in October that statutory timescales to assess applications were being breached in half of cases as a result of the hike in numbers. We have also reported on how councils are trying to clear backlogs by drafting in independent assessors and pulling social workers from case work to work in dedicated Dols teams.

The CQC said it expected local authorities to “do all they can” to assess backlogs and prevent their recurrence, for example by using a set of triage tools created by the Association of Directors of Adult Social Services. In a letter issued this month, the Department of Health acknowledged that many councils are struggling to meet legal deadlines but said it did not expect councils who are following national DH, Adass and CQC guidance on processing applications to “be unfairly penalised”.

In addition to its advice for local authorities, the CQC also warned care providers not to bow to any requests from councils to delay or withdraw applications in order to help them manage the backlogs. Such requests from councils were rare but “unacceptable”, the regulator said.

Court applications

The Supreme Court ruling also made clear that people may be deprived of their liberty in community settings, such as supported living and shared lives schemes, not just hospitals and care homes. Any deprivation of liberty in community settings must be authorised via the Court of Protection.

So far, sources say that court applications have not increased at anything like the rate of Dols authorisations. However, the CQC said that initial feedback from local authorities suggests that applications to the court “will soar in a similar way to the Dols applications in hospitals and care homes” in the near future.

As well as examining the impact of the Cheshire West ruling, the CQC’s review also looked at key themes that emerged from the Dols implementation over the past five years. This analysis found that there were significant regional variations in application rates, a lack of staff awareness of the Mental Capacity Act was a “barrier to good practice” and providers have consistently failed to notify the CQC when they make Dols applications.

The regulator’s adult social care inspections have had a stronger focus on Mental Capacity Act (MCA) and Dols since the introduction of a new inspection framework in October last year. Last week, Community Care published an analysis showing that most of the care homes and nursing homes rated ‘inadequate’ under the new framework had been criticised for failing to properly apply the MCA or Dols.

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