Complying with landmark deprivation of liberty ruling would cost extra £1.5bn a year

Compliance with a landmark Supreme Court ruling on deprivation of liberty would cost an extra £1.5bn a year, according to legal experts.

An impact assessment published by the Law Commission found that proper implementation of the existing legal system for authorising deprivation of liberty would cost £1.59bn per year, more than 13 times the estimated £117.9m current practice is costing.

The difference is largely explained by the fact councils are currently failing to process the number of cases required to comply with the landmark ‘Cheshire West’ ruling of March 2014. The ruling effectively lowered the threshold for deprivation of liberty cases and triggered a ten-fold increase in demand that has left councils routinely breaching statutory duties.

The fallout from the ‘Cheshire West’ ruling led the government to ask the Law Commission to draft proposals for a replacement legal framework. The commission published draft proposals for a replacement scheme last month. The impact assessment estimated that the proposed replacement framework, which aims to be less bureaucratic than the current system, would cost around £533m a year to fully comply with.

In arriving at the figures for the costs associated with each system the Law Commission estimated costs to councils, the NHS and the courts. It also factored in legal aid costs and legal expenses paid by service users and carers.

The current approach

The £117.9m figure for current costs includes an estimated £80.1m spent by local authorities on authorising and reviewing Deprivation of Liberty Safeguards (Dols) cases. Local authorities in England receive £35m annually from the government for Dols and Mental Capacity Act work, and were given a one-off additional grant of £25m last year to cope with the Supreme Court ruling impact. The Law Commission said that £80.1m more realistically represented what Dols “is actually costing” councils.

However, significantly, these figures are based on existing practice, rather than compliance with the Cheshire West ruling. Councils processed less than half of Dols referrals received between April and December last year, the Law Commission found. Separate research by Community Care suggested that local authorities also made less than 2% of the applications to the Court of Protection that could be required to authorise deprivation of liberty in settings not covered by the Dols, such as supported living.

The true cost

The Law Commission found that if the current system was fully implemented to clear these backlogs and ensure compliance with the Supreme Court ruling it would cost around £1.6bn a year. The costs are broken down as follows:

• Councils and the NHS would face an annual cost of £516.2m a year, compared to the £81.2m currently spent. The cost of Dols authorisations, including advocacy and reviews, would increase from £80.1m to £172.1m. The cost of authorising deprivation of liberty outside of settings covered by the Dols would spiral from £1.1m to £341.6m. An extra £2.6m would also be spent training up staff, including 69,000 social workers and doctors and 1,204 additional best interests assessors (BIAs) – the group of professionals that coordinate Dols cases.
• The costs to people lacking capacity to consent to their care arrangements, their families, the Official Solicitor and legal aid would rise from £9.4m to around £1bn. This is based on an assumption that around 11,000 Dols cases per year would go to court for a review of a Dols authorisation and councils would make 31,000 applications to the Court of Protection to authorise deprivation of liberty in settings not covered by the Dols.
• The cost to regulators, including the Care Quality Commission, would rise from £27.3m to £31.4m.

Fully complying with the current deprivation of liberty system could save local authorities and NHS bodies up to £94m a year by avoiding the threat of paying out damages for breaching their statutory duties, the Law Commission found. A fully funded scheme would also bring £66m worth of benefits in improved health outcomes.

Proposed reforms

The Law Commission’s proposed replacement system, provisionally titled ‘protective care’, covers care homes, hospitals, supported living, shared lives and domestic settings.

The nature and extent of the safeguards offered by the system vary according to the care setting and level of restrictions proposed. The proposed scheme also includes a right to automatic tribunal review.

The impact assessment found that implementing the ‘protective care’ scheme would cost around £533m per year. This is more than the £117m the existing system is costing under current practice but around a third of the estimated £1.59bn that it should cost if all cases were processed in line with statutory duties.

The total cost of the ‘protective care’ scheme includes:

• £3.8m in training costs, most of which (£3m) relates to training 3,604 social workers and other professionals to take on a new ‘Approved mental capacity professional’ (AMCP) role. These staff would supplement the existing pool of best interests assessors as the Law Commission assumes that existing BIAs will be automatically recognised as AMCPS.
• £67.9m to implement the ‘supportive care’ tier of the new system based on an estimate that 122,570 people would be covered by these safeguards. This tier applies to people facing a move into a care home or community placement who lack the capacity to consent to this.
• £321.1m to implement the ‘restrictive care’ tier of the new system. This is an enhanced set of safeguards that would kick in when people in the ‘supportive care’ system are subject to sufficiently intrusive or restrictive care. Cases meeting the criteria would trigger an extra layer of safeguards, including strengthened rights of appeal through a tribunal system. The Law Commission estimates around 150,000 would be covered by this scheme.
• £46.7m to implement a ‘domestic settings scheme’ to cover people deprived of their liberty in their own homes, including £11m in assessment and advocacy costs and £32.5m in the cost of tribunal reviews to local authorities.
• £0.9m to implement a proposed ‘hospitals scheme’ to cover an estimated 7,870 patients requiring authorisation for care restrictions in acute hospitals or palliative care settings.
• £136m in legal costs prior to tribunals incurred by people who lack capacity and their families or carers, including self-funded fees and legal aid. This is based on the assumption that 70% of people under restrictive care and treatment in care homes and supported living would proceed to automatic tribunal review and 70% of people deprived of liberty at home would proceed to tribunal.
• £16.7m in cost to regulators.

The ‘protective care’ system would deliver an estimated £311m a year in benefits through the avoidance of risk of paying out legal damages and savings derived from improved health outcomes, the Law Commission found.

The commission also produced an estimate of costs of implementing the proposed ‘protective care system’ without the right to an automatic tribunal review. This would cut the cost of implementing the system from £533m a year to £213.5m a year.

The Law Commission believes that the best option would be to fully implement the ‘protective care scheme’, including the provision for automatic review.

“This is our preferred option because it would reduce bureaucracy through tailored schemes, and improve care outcomes by empowering individuals and implementing increasingly protective safeguards for more intrusive treatment and care,” the impact assessment concluded.