Deprivation of Liberty Safeguards cases in Wales hit record high in run-up to landmark ruling

Deprivation of Liberty Safeguards (Dols) cases in Wales hit a record high in run-up to the landmark ‘Cheshire West’ ruling, new figures have shown.

The fifth annual report on the usage of Dols in Wales found a 20% increase in the number of applications made by care homes or hospitals to deprive people of their liberty in 2013-14. This represented the most significant rise in case numbers since the safeguards were introduced in 2009.

However, case numbers are likely to have risen even more quickly since, because of the  Supreme Court’s ruling in the cases of P v Cheshire West and Chester Council and P&Q v Surrey Country Council, in March 2014, the very end of the 2013-14 financial year.

This brought in a revised test that effectively lowered the threshold for deprivation of liberty in care and triggered a surge in cases in England and Wales, found a Community Care investigation published in October 2014.

The Dols require supervisory bodies – local authorities and health boards in Wales – to assess whether people who lack capacity to consent to their care arrangements are being deprived of their liberty in care homes or hospitals. If this is the case, they must assess whether this is in their best interests and necessary to protect them.

A total of 631 applications were made to Welsh local authorities and health boards in 2013-14, compared with 526 in 2012-13 and 545 in 2011-12.

Inconsistency

The joint report from the Health Inspectorate (HIW) Wales and Care and Social Services Inspectorate for Wales (CSSIW) found that, as in previous years, the majority of cases were in social care not health settings. In 2013-14, local authorities received 411 (65%) of the applications made and health boards received 220 (35%). But the report said that while the latest findings suggested awareness had increased, the safeguards were still being used inconsistently.

There were significant variations in the number of applications received by local authorities and health boards. Some of this variation could be due to the difference in the number of hospital or care home beds in local areas, the report said, but this did not account for all of it.

The number of Dols authorisations granted per 100,000 population also varied widely between authorities, ranging from 0 in Conwy and Wrexham to over 25 in Carmathenshire and Rhondda Cynon Taf.

This unexplained variation in usage and authorisations echoes the findings of the four previous reports, concerns over which prompted a national review of Dols in Wales in 2014.

Low review rate

The annual monitoring report also found the number of reviews of Dols authorisations across local authorities and health boards had remained low. Less than 10% of all authorisations were reviewed in 13-14 and there were only 25 reviews recorded in the year.

A review of an authorised Dols application can be requested at any time by the service user, their relatives, the managing authority or an independent mental capacity advocate (IMCA).

The report did find a rise in the number of people who received support from IMCAs in 2013-14 (from 70 to 79), but this was still disproportionately low when compared with the number of authorisations granted in the year.

The HIW and CSSIW have recommended that supervisory bodies to do more to raise awareness of the role of IMCAs and the services they provide.

Kate Chamberlain, chief executive of the Health Inspectorate Wales, said: “I am pleased the report indicates that awareness of the Safeguards is increasing. However, in light of the Cheshire West Supreme Court Judgement in March 2014, it is vital that this awareness continue to increase, as the ruling could have significant implications for the use of the Safeguards going forward.”

Imelda Richardson, chief inspector of CSSIW, added: “Depriving an individual of their liberty is a decision that requires careful and thorough consideration and it is therefore vital that the Safeguards are used appropriately, are well understood and embedded in every day practice.”