Lamb told ‘urgent’ funding for deprivation of liberty cases needed as legal threat looms

Councils are in ‘dire need’ of extra funding from government to help meet the nine-fold rise in Deprivation of Liberty Safeguards cases (Dols) triggered by a Supreme Court ruling in March, local authority leaders have warned.

The court judgement, in the cases of Cheshire West and P and Q, effectively lowered the threshold for what constitutes deprivation of liberty in care and led to councils receiving tens of thousands more requests for Dols assessments. The surge has left many councils unable to carry out assessments within legal timescales and brought increased costs, including spend on training up more assessors to meet demand.

In a letter to care minister Norman Lamb, the Local Government Association and the Association of Directors of Adults Services (Adass) said that funding from government was urgently needed to help protect the human rights of vulnerable people who may be unlawfully deprived in care settings. Local authorities are also ‘likely’ to be involved in legal action over breaches of statutory duties, the letter added.

The government has previously pointed to the fact that councils receive £35m to cover Mental Capacity Act work, including Dols. But the LGA and Adass said that the funding provided to date “simply does not reflect the expanded duties resulting from the judgement”. The letter points to the fact that Dols activity in the first three months of 2014-15 is already double the DH’s estimate for annual activity.

A graph from the letter showing forecasted activity vs DH estimate

“We believe there is already a shortfall in funding which has been massively exacerbated by the impact of the Supreme Court judgement upon already overstretched local authority capacity. This situation cannot be sustained,” the letter, signed by Adass chair David Pearson and Izzi Seccombe, the chair of the LGA’s community wellbeing board, said.

Pearson and Seccombe added that the LGA and Adass supported the government’s move to ask the Law Commission to review legal frameworks for deprivation of liberty. However, with the Law Commission review not due to report until 2017, the letter called for the government to consider other moves in the interim period that recognise the ‘urgency’ of the situation in the wake of the Supreme Court ruling.

“Whilst we not the wish for legislative change not to be rushed, this needs to be balanced with a recognition of the urgency of ensuring that the people’s needs are met in the best way possible, as well as reducing lengthy judicial processes and minimising the cost to the public purse,” the letter said.

“There also must be some very specific circumstances in which the sector and government could work together on identifying a more proportionate response in advance of the Law Commission reporting in three years. There are already some practice anomalies with the current system as a result of the judgement – assessing people in hospitals at the end of life or in a coma or an increase in coroners requesting post mortems – that is causing undue stress on families and simply do not promote the person’s best interests in line with the MCA 2005.”

A Department of Health spokesperson said: “We want to make sure that the Mental Capacity Act is used to protect and empower vulnerable people and we’ve given councils £35 million to do this.

“But we recognise that changes to what safeguards mean have increased workloads, which is why we’re cutting down on red tape and we will be considering what support is needed in future.”