The Court of Protection is considering how deprivation of liberty applications can be ‘streamlined’ to cope with the reported surge in cases triggered by a landmark Supreme Court judgement.
The court will consider how a “streamlined” system for authorising and reviewing deprivation of liberty cases could comply with European human rights law at a hearing to be held at the Royal Courts of Justice on 5 June. Options to be discussed include processing ‘bulk’ applications, allowing court officials to sign-off decisions rather than a judge, and processing more applications without an oral hearing.
The court will also consider whether it can extend the timescales for completing Deprivation of Liberty Safeguard (Dols) assessments for urgent authorisations without the need for an oral hearing. The current system requires the majority of assessments to be completed within 7 days, but allows 14 days in exceptional circumstances.
There are concerns that changes to the system could weaken safeguards for vulnerable adults deprived of their liberty and see the court “rubber stamping” local authority decisions.
Implications for local authorities
The hearing is expected to last two days. It is being brought as the court, local authorities, NHS commissioners and providers consider how to respond to a reported sharp hike in deprivation of liberty cases following a ruling by the Supreme Court in March in the cases of P v Cheshire West and Chester Council and P&Q v Surrey County Council.
The court ruled that people are deprived of their liberty if they:
- Lack the capacity to make decisions about their care and residence and;
- Are subject to continuous supervision and control under the responsibility of the state and;
- Lack the option to leave their care setting
It threw out previous judgements that had defined deprivation of liberty more restrictively.
The ruling meant that many people are likely to have been deprived of their liberty unlawfully in settings including care homes and supported living placements.
Cases involving care home placements and hospitals are subject to Dols. In these cases the responsible local authority must commission six assessments before deciding whether to authorise the deprivation of liberty or not. Deprivations of liberty in other settings, notably supported living, require an application to the Court of Protection for authorisation.
For councils, the ruling means they will have to increase the number of assessors they use. These include best interest assessors, who are mostly social workers and whose role is to decide whether people are being deprived of their liberty and, if so, whether this is in their best interests. The Care Quality Commission’s latest annual report on Dols found that a quarter of councils did not have a sufficient number of assessors.
The ruling will also stretch the Court of Protection as local authority legal departments make more applications in respect of supported living placements.
‘The system is in meltdown in some areas’
Next week’s hearing will take evidence from lawyers representing councils, the government, NHS commissioners and other parties on the number of cases they believe to be impacted by the Supreme Court ruling and the anticipated costs involved.
David Pearson, the president of Association of Directors of Adult Social Services, said resourcing “is an issue” and ADASS was in the process of gathering feedback from local authorities on the impact of the judgements.
“Our survey will give us an idea of the actual impact. Once that’s completed we’ll look at the data and we’ll look at the original impact assessment for the Mental Capacity Act and the assumptions outlined in it. Then we would look to have a conversation with the government about it. We need to establish whether this is an additional financial responsibility over and above the original impact assessment.
“What’s important is that we have to keep at the centre of this our responsibility to people who lack capacity and are under constant supervision. The issue of resources must follow what is the right thing to do.”
Social workers told Community Care the ruling had already led to a “huge influx” of deprivation of liberty cases in parts of England but acknowledged the situation was “highly variable”. One social worker said their council had already identified over a thousand cases that may require Dols assessments or court applications.
Another social worker told us: “It feels like the system is in meltdown in some areas. Councils that historically had very low numbers of Dols referrals have suddenly seen a huge influx and they don’t have the capacity to deliver on them. Some are negotiating with colleges and universities to train up best interest assessors en masse. There is a lot of scrabbling going on.
“If you look back at the case law over the last few years this has been coming. It shouldn’t be a massive surprise but a lot of local authorities have been sticking their fingers in their ears for too long.”
In a speech earlier this month, Michael Jones, the leader of Cheshire East council, said the local authority had already received what would have previously been a year’s worth of Dols applications in the weeks following the Supreme Court judgement.
“This will mean a minimum of £500,000 extra costs,” he said.
Legal experts’ view
Ben Troke, partner at Browne Jacobson LLP, said some councils were seeing “significant increases” in Dols referrals.
“It is not unusual for the referral rate to be up tenfold. So one issue for councils is purely the resource of processing those referrals, particularly as most assessors currently combine that role with other jobs,” he said.
“There is also a question of what happens, and where liability may rest, if Dols assessments aren’t carried out within the required timescales simply because there isn’t the resource to meet demand, and of the extent of the obligation on local authorities to refer cases to court where they sit outside of Dols, for example in domiciliary care or supported living packages.”
Troke added: “One of the real challenges is going to be finding a measured, pragmatic response to this – doing what can be done –as opposed to ignoring it altogether because it is too big to think about, or over-reacting, while we await further guidance from the Court, in a way that might make it impossible to meet other responsibilities. I’m sure that question about practical implications is going to be front and centre of the court hearings next week.”
Jonathan Auburn, a lawyer at 39 Essex Street, said: “‘There are significant pressures on a range of public authorities trying to work out the effect of the Supreme Court’s ruling and how they are supposed to respond to it. Hopefully next week’s hearings will bring some much-needed clarity.”
‘Any revised system must be robust’
Roger Hargreaves, Dols lead for the Mental Health Alliance, said any surge in referrals may only be a “short-term” reaction and the worst affected councils could be those that have historically had low numbers of Dols cases.
“We’ll need to wait to see the long-term trend. People are anxious just now but we’ve been in this situation before when Dols was first introduced. We thought it was going to be absolute chaos then.
“I think the biggest immediate impact will be on supported living and then on local authority legal departments and the Court of Protection. As far as Dols is concerned, most councils ought to be able to cope in the longer-term with higher numbers because the system is not at capacity. The problem is in many places they have had virtually no activity, so Dols has been virtually non-existent and their systems will not be in place or will have been dismantled. At least areas with good Dols leads will have the infrastructure and very trained staff.”
Hargreaves, who has previously written about the implications of the Supreme Court ruling, said any revised system for processing applications must not be “less rigorous” than the current procedures simply in order to deal with the volume of cases.
“There’s a danger that the court will stretch its resources, start giving more decisions over the phone, whereas with Dols you have people being assessed within 7 days or 14 days. That system isn’t perfect but at least somebody comes to see you and talks to everyone involved. We don’t want to end up with a system that just leads to lots of rubber stamping by judges of existing situations purely on the local authority’s say so,” he said.
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