A lawyer’s view on the legal risks to councils from breaching Dols case timescales

Today, Community Care has published the findings from our investigation into the impact of a landmark deprivation of liberty Supreme Court ruling, in the cases of Cheshire West and P v Q.

Our research, based on data obtained from over 120 local authorities in England and Wales, shows that councils are struggling to meet statutory timescales for assessments in the face of a surge of referrals triggered by the judgement.

Councils acknowledge that breaching timescales leaves them vulnerable to legal challenges. But would any challenge, if brought, be likely to succeed given the sudden flood of cases authorities have had to deal with? We asked Jess Flanagan, an associate solicitor at Clarke Willmott LLP and Mental Capacity Act expert, for her view on the situation.

The issue: Breaches of Deprivation of Liberty Safeguards (Dols) timescales

What Community Care found: 50% of Dols referrals received by councils between April 2014 and the end of August 2014 had not been completed within statutory timescales. In 2013-14, just 2.2% of referrals breached timescales.

The background: Under the Dols, local authorities have 21 days to complete a request for a ‘standard authorisation’ from a care home or hospital. Standard authorisations are used to authorise care arrangements that deprive an individual of their liberty. If practical, they are supposed to be used in advance of a care arrangement starting.

In cases where the care arrangement is already in place and there are concerns that a potential deprivation of liberty is taking place, care homes and hospitals can make an urgent authorisation. These authorise any deprivation of liberty for an initial period of seven days. A further seven day extension can be granted before a standard authorisation is put in place, but only to a upper limit of 14 days. These timescales appear to be being routinely breached following the Supreme Court decision.

‘Local authorities must evidence a robust process’

Jess Flanagan’s comment: Any breach of timescales by local authorities when dealing with individuals that it identifies as potentially being deprived of their liberty will need to be considered carefully on the particular facts of the case. However, news of the timescale breaches in itself certainly chimes with conversations I have had with others working in this field.

Pre-Cheshire West, most local authorities were very well able to meet the ’14 day deadline’ (the standard seven days and a seven day extension) for putting in place a standard authorisation following an urgent authorisation.

Post-Cheshire West, not one of my local authority contacts is saying that their authority is able to meet timescales in every case. Despite best efforts and dedicated teams, it is simply not achievable and, as such, it is likely that there will have to be an element of acceptance that there will be technical breaches of the process. Whether that is unlawful is not such an easy question to answer as it would probably need a judge to consider the extent to which there is any defence to the technical breaches.

This is going to be something that lawyers will look at carefully when cases come across our desks. We naturally consider the timescales and whether there has been any delay as a matter of course when considering new instructions. There have recently been a number of cases in the Court of Protection dealing with delays in bringing proceedings to court which have resulted in declarations of breaches of Article 5(4) – ‘right to speedy review’ of a deprivation of liberty – and I am aware of a couple more that are currently awaiting final hearings. But, the delay we are talking about with these figures appears to me to be a  delay in determining whether someone, who was previously unlikely to be assessed as such, is deprived of their liberty under the ‘acid test’ set by the Supreme Court, and if they are, a delay in authorising that deprivation.

Reflected in the figures, in the press, and in every discussion had between professionals working within the Mental Capacity Act domain is the increase in people now falling under the definition of being deprived of their liberty. It cannot be right that local authorities, who have just suffered massive budgetary cuts, can be targeted and held accountable for time delay breaches resulting simply from the large scale increases caused by the Supreme Court judgment.

‘Councils cannot stick their heads in the sand’

What councils can and should be held accountable for is sticking their heads in the sand, doing nothing, or for timescale breaches for those cases that they would have been assessing in the normal course pre-Cheshire West.

I have spoken to many lawyers who advise adult social services departments who really get the law – they get the judgment and the impact it will have on the way they advise. They have been working with the MCA and Dols teams since March (with no additional resources) to ensure that there is a robust process to be followed, prioritising the high risk, the highly contentious and those cases that would need to be dealt with as urgent if it weren’t for the onslaught. This is very likely to be relatively good evidence that even if they breached timescales, they tried their hardest not to. I have said before that the system isn’t new to authorities, and I suspect it is the authorities with more robust processes in place pre-Cheshire West who have found it less of a difficulty to work out a new way of working. It is the authorities who didn’t really have a grip on it in any event that may struggle to evidence good working practices. This is yet to be seen.

We have to remember that we are dealing with vulnerable adults and those authorities who have the individual, their needs and the types of challenges they face at the heart of their process are more likely, in my view, to survive scrutiny of claimant solicitors and judges.

I would hope that the authorities are not relying on the fact that it is unlikely that P (the person deprived of their liberty) will bring claims for such breaches, because if there is a technical breach that has caused P harm, or put them in a position of disadvantage by comparison, then lawyers will bring claims on their behalf, so long as it is justified, proportionate and appropriate to do so. If we are spending public money, or P’s money, in bringing claims for unlawful deprivation of liberty caused by technical breaches, then we need to be pretty certain that it is likely to succeed.

The cases in respect of breaches of Article 5(4) are tricky to pursue in terms of funding. Liability is often easy and if an application hasn’t been brought to the court when P is very clear that he or she wants to challenge it within six months of the initial authorisation, then damages are likely to be in the region of £5,000. But pursuing a damages claim using legal aid is not of any benefit to the client, as the statutory charge will eat up any award and it is difficult to agree funding for such claims when P is responsible for fees, but lacks capacity to litigate.

I think the same might be true in looking at breaches of timescales. It will have to be a very clear breach by a local authority that really has just got it very wrong and not applied the Mental Capacity Act at all in order for any claim to be justified, proportionate and in P’s best interests. So sadly, I have a feeling that unlawful breaches will continue. But this shouldn’t give the authorities carte blanche to stop using best efforts to reduce the timescales.

How long this can go on for before claimant solicitors acting for P and family members will say ‘enough is enough’ will very much depend on how long the levels of applications remain unmanageable, and again will come down to the individual facts of each case.

The benefit of this judgment is most definitely to P, and authorities will have to be provided with more funding and resources to ensure that it does not end up being a toothless sentiment. The judgment gives adults who lack capacity to consent to their living and care arrangements a forum to have their voice heard and must be adapted into working practices of public bodies who commission care.

I am not convinced that authorities should be criticised for technical breaches of timescales when they can justify that they have thought about each individual and where their set of circumstances might lie in a priority list.