Supreme Court ruling triggers sharp rise in deprivation of liberty notifications to CQC

The Care Quality Commission has seen a sharp rise in the number of deprivation of liberty safeguards (Dols) notifications reported by care homes and hospitals in the months following a Supreme Court ruling that effectively lowered the threshold for deprivation of liberty in care.

Figures provided by the regulator to Community Care show that in May of this year the CQC received notifications that 1,741 Dols applications had been made. This compares to an average of 450 notifications per month between January and March, the month of the Supreme Court ruling in the cases of ‘P v Cheshire West’ and ‘P and Q v Surrey’ that introduced a new ‘acid test’ for what constitutes deprivation of liberty in care (see box).

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. The most significant is the best interests assessment, carried out by Best Interests Assessors (BIAs), which determines whether the person is being or will be deprived of their liberty and, if so, whether this is in their best interests.

The CQC data is only part of the picture. Although care homes and hospitals are required to notify the regulator of all applications to deprive people of their liberty, underreporting by providers has been an issue. Around two-thirds of providers who made Dols applications in 2012-13 failed to notify CQC. The CQC figures also do not include deprivations of liberty in community settings, such as supported living, as these are authorised by the Court of Protection.

Councils have previously issued forecasts estimating that deprivation of liberty cases, including supported living and Dols, will rise ten-fold this financial year due to the ruling. The government has set up a working group, led by the Association of Directors of Adult Social Services, to help councils work through the implications of the ruling. The group will report in August.

Elmari Bishop, a consultant social worker and The College of Social Work’s lead on the Mental Capacity Act and Dols, said the Supreme Court ruling had significant implications for frontline staff.

“Many locaI authorities and best interests assessors are struggling to cope with the volume of work that has come in following the [Supreme Court] ruling. Some local authorities have waiting lists for carrying out Dols assessments but there are strict timescales they have to meet so it is a real challenge,” she said.

“For social workers on the ground, the ruling means that if you’re going to be placing someone in a care home or a hospital and they meet the new ‘acid test’ they will automatically be considered to be deprived of their liberty. So social workers really have to – as they should have been doing anyway – consider whether the placement is the least restrictive option [under the Mental Capacity Act councils must have regard to the least restrictive option for meeting the needs of a person who lacks capacity to consent to their care arrangements] and in the person’s best interests. In the past, too many haven’t done that and instead social workers have just looked at whether the placement is safe.”

Under the Mental Capacity Act councils must have regard to the least restrictive option for meeting the needs of a person who lacks capacity to consent to their care arrangements. Fulfilling this duty should minimise the number of people deprived of their liberty in care settings.

Bishop also said that, in addition to more scrutiny on new placements, local authorities are also likely to identify a lot of cases that might need to be re-assessed in light of the ruling.

“That means that BIAs and section 12 doctors will be scrutinising the decision to place the person in a care home or hospital in the first place, and they will also be looking at whether the person is objecting to being there, whether there is any conflict with family members and other best interest factors, such as why other less restrictive options have not been fully explored in practice,” she said.

“For the person being placed in these settings I think the ruling is a good thing, but it definitely has farreaching implications for local authorities and all social workers who are placing people in different settings.”

One social worker and BIA told Community Care that her local authority had seen Dols applications “triple or quadruple” in the months since the court ruling.

“We are now running a waiting list and expiry dates are being exceeded which runs contrary to the legislation. Care homes are making batch [Dols] applications, in some cases running to 30 to 40 at a time. Often this is being done with little regard to individual review of their residents and without thinking through the criteria,” she said.

The social worker said that the Supreme Court ruling’s ‘acid test’ had made the Dols process “unworkable, labour intensive and not ‘simple’ by any means”.

“In fact it has made the process more difficult, with differing views on the criteria from all sources. People may be being deprived of their liberty now, simply because there is not enough resources to cope with demand,” she added.

Ann McKay, director of policy at Care England – the umbrella body for independent care providers – said that the Supreme Court ruling had caused some immediate concern for care homes but the main implications were for local authorities.

“I would hope providers are very much fitting this in to their normal care plan reviews. There will be a worry if care homes put forward cases for assessments but find that councils are delayed in responding because they are under greater pressure. But ultimately it is the local authority’s responsibility. Care homes are getting on with it, they are reviewing cases and they are putting people forward for assessments,” she said.