Providers should make many more applications to authorise deprivations of people’s liberty in care settings in the light of a landmark Supreme Court ruling, the Care Quality Commission has said.
The CQC said the implications of the ruling in the cases of P v Cheshire West and Chester Council and P & Q v Surrey County Council was to extend the scope of the Deprivation of Liberty Safeguards (Dols) over many more health and social care service users.
The judgement stated that people who lacked capacity to consent to care arrangements that were the responsibility of the state, were under continuous supervision and control and were not free to leave, were deprived of their liberty. This means that considerations cited in previous judgements – whether the person was objecting to their placement or the “relative normality” of the placement given the person’s level of disability – are irrelevant.
Under the Dols, care homes and hospitals must apply to their local authority if they suspect a relevant service user is or is going to be deprived of their liberty; the authority will then assess whether this is the case and if it is in the person’s best interest. In the case of other care settings, such as supported living or Shared Lives, the provider must apply to the Court of Protection to have the deprivation of liberty authorised.
Many more Dols cases
In an advice note on the ruling for providers, the CQC said: “It is certain that many more requests for authorisations under the deprivation of liberty safeguards will be made for people in hospitals or care homes, and that many more applications will be made to the Court of Protection for those in domestic settings with support.”
Separately, the Department of Health has advised local authorities and providers to reassess the cases of people who lack mental capacity to consent to their care arrangements for potential deprivations of liberty.
The likelihood that the judgement will lead to increased numbers of cases has sparked concern among provider and local authority leaders.
“[The judgement] will increase the burden of work that is placed upon [care providers] and the local authorities,” said Martin Green, chief executive of Care England, the biggest provider association. “There will be no recognition of this extra work in the funding regime, and I do not believe that this judgement will do anything to further protect people who use services, it will just increase administrative burdens.”
“I think the resource implications could be considerable with many more assessments required of people in care settings, many more adults with learning disabilities who we previously assessed based on [previous rulings] and said “not deprived”, many more in hospitals with 1:1 nursing, many more informal patients,” said Sarah Norman, co-chair of the Association of Directors of Adult Social Services’ mental health network. “Additionally local authorities will now have to look at all those other settings, supported living, adult placement, group homes etc. where numbers may also be considerable.”
However, she said she welcomed the judgement as it had the potential to address the wide inequalities in the way the Dols regime is applied across the country.
Two questions providers must ask
In its advice to providers, the CQC said that they needed to ask themselves two questions when reassessing the care of people who lacked capacity to consent to their arrangements.
Firstly, they needed to ask whether the person was under continuous supervision and control. “All three elements must be present – the oversight must be continuous (though does not have to be ‘in line of sight’), it must amount to supervision, and have a clear element of control,” said the regulator.
The second question was whether the person was free to leave. “The person may not be asking to go or showing by their actions that they want to but the issue is about how staff would react if
the person did try to leave or if relatives/friends asked to remove them,” added the CQC.
When both factors are present, then the person is deprived of their liberty. Where providers suspect they are depriving someone of their liberty under the Supreme Court’s test, the CQC said they should seek to remove restrictions on the person’s care, using best interests decision-making under the Mental Capacity Act 2005.
If it appears that it is in the person’s best interests to be detained, it said care homes and hospitals should apply to their local authority for authorisation, and notify the CQC of the application and its outcome.
For providers of other services, such as supported living, the CQC advised them to seek legal advice and liaise with commissioners if they suspected they were depriving someone of their liberty, before making an application to the Court of Protection.