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.
Related article: ‘Supreme Court ruling leaves little room for doubt over deprivations of liberty in care’
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I am afraqid Roger Hargreaves has it wrong when he says ‘any surge in referrals may only be a “short-term” reaction and the worst hit councils will be those that have historically had low numbers of Dols cases.’ and ‘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 way the ruling describes what is a deprivation of liberty means that virtually all peoplelacking capacity to consent to ther residence and care will meet the so called ‘acid test’. No one has defined what is meant by ‘constant supervision’ which could be anything from staff knowing where a resident is at all times and performing regular checks on them to round the clock 1 to 1 (or more) direct supervision.
I work for a large county with historically higher than the average level of applications and we are swamped going from on average 30 – 35 applications a month to 180+ in May. Care home managers all recognise that they need to apply for most of their incapacitated residents and with over 350 care homes the potential numbers are enormous and then once authorisation is granted there are the renewal applications and, if requested, reviews. The of course the Court ruling is retrospective so all those applications in the past 12 months where it was decided no DOL was occurring must be reviewed, and many likely to now be defined as deprived of their liberty.
High application levels are here to stay until someone comes up with a decision as to what constitues constant supervision which is more than what is expected as a basic provision in a care home.
As per my article last week, I think that the judges are likely to interpret “continuous supervision” very broadly, so there’s no point in hoping that the wider criteria are just temporary and that the courts will eventually tighten them up again. Nor is there any early prospect of a major change in the system – even if the government accepts the House of Lords’ call for a “fresh start” it will need extensive consultations followed by primary legislation, which could take several years.
However, the government could help in the meantime through changes to regs or guidance, minor amendment to the statute or provision of extra funding. Even these things take time to put into place, though, (although extending the urgent assessment timescale would be easy and should have been done already) so the first question is whether the sudden sharp rise in referrals will level out at a rate which the existing arrangements couldn’t absorb without such assistance. Applications will eventually fall back to “replacement and reassessment” levels, but reassessments will be at a much higher rate as authorisation rates in some places now appear to be over 90%, although I expect many more will now be given for 12 months at a time.
We also need to forecast where the greatest pressures will be, which may not be where they are right now. It was inevitable that the first impact would be felt in those authorities with historically high levels of activity, as their care providers will be the most aware and the most geared-up to make multiple applications. Where activity has historically been very low, the build-up is likely to be slower, but the long-term consequences are likely to be much harder to manage as authorities which have been processing as few as two or three applications per month won’t have the basic infrastructure in place – and in particular, a core of trained, experienced staff plus admin systems – which could be expanded to absorb much larger numbers. However, if they ask for more money the government will point out that they must have been spending a lot less than their neighbours over the last five years, and even if they can find the money they will struggle to recruit experienced co-ordinators, administrators and BIAs or to find training places.
The government is likely to be much more sympathetic on the question of supported living, which will be the main focus of the Court of Protection hearing this coming week. Again, the build-up will be gradual, but the long-term implications are extremely serious because of the huge costs – in legal fees and staff time – of taking just one case to court, plus the need for regular court reviews, and because most local authorities and care providers will have no dedicated staff in place at all to manage a situation where a high proportion of service users are subject to the jurisdiction of the court, and so will have to start from scratch. Although it isn’t legally straightforward, the government’s first priority should be to extend DoLS to supported living, and then look to the local authorities to beef up their DoLS services by redirecting the money they would otherwise have had to spend on lawyers.