The government will provide an extra £25m in 2015-16 to help local authorities manage the pressures on Deprivation of Liberty Safeguards caseloads triggered by the Cheshire West judgement.
The funding, announced today by care minister Norman Lamb, is about one quarter of council leaders’ estimates of the costs of the judgement for authorities and will only be available for one year only, on a non-ring fenced basis.
However, it marks a victory for the Association of Directors of Adult Social Services and Local Government Association, who have argued that the judgement has put local authorities under immense pressure by triggering a ten-fold increase in Dols cases.
In an article for Community Care, Lamb said:
Local authorities, best interest assessors, Dols teams and providers have been working tirelessly over the last year delivering the independent scrutiny of Dols to tens of thousands more vulnerable individuals than in previous years. I pay tribute to their great efforts.”
The Supreme Court’s ruling
The Supreme Court’s judgement in the linked cases of P v Cheshire West and Chester Council and P&Q v Surrey County Council in effect lowered the threshold for what constitutes a deprivation of liberty in care, making many more people eligible for Dols.
The court’s “acid test” said that a person who lacked capacity to consent to their care arrangements was deprived of their liberty, under Article 5 of the European Convention of Human Rights, if:-
- they were under continuous supervision and control;
- they were not free to leave, and;
- their care arrangements were the responsibility of the state.
Considerations laid down in previous case law that had restricted Dols case numbers – for example, by stating that a person was not deprived if their care arrangements were relatively normal for their level of disability – were rendered irrelevant.
Huge increase in caseloads
The result has been a massive increase in caseloads for Dols teams. There were eight times as many applications from providers to deprive people of their liberty in care homes or hospitals from April to December 2014 than in the whole of the 2013-14 financial year, according to official figures. This means average monthly referrals were ten times higher in 2014-15 than 2013-14.
Every Dols application requires local authorities to commission six assessments in order to decide whether to authorise a deprivation of liberty and apply the safeguards required by the Mental Capacity Act to protect people’s rights. Applications should be authorised where a person is, or is likely to be, deprived of their liberty, eligible for Dols, and their detention is in their best interests, necessary to protect them from harm, and a proportionate response to the likelihood and seriousness of that harm.
The Department of Health, in partnership with the Association of Directors of Adult Social Services and Local Government Association, have taken steps to mitigate the pressures on Dols teams, including:
- increasing the supply of courses to train professionals, principally social workers, as best interests assessors (BIAs), who play the pivotal role in evidencing a Dols authorisation;
- cutting paperwork by reducing the number of forms involved in the Dols process from 32 to 13;
- providing practice advice on applying the Supreme Court ruling to end-of-life care cases or cases where a person is in a coma, potentially limiting case numbers.
Councils have also taken steps themselves to mitigate pressures, including by pooling training resources to train more BIAs, diverting social workers from case work to work on to Dols cases and setting up dedicated Dols teams.
However, concerns have been raised that these measures may adversely affect the quality of practice, both in Dols cases and in other areas of social work, and Adass and the LGA have continued to warn that councils needed additional resources from government to managed the increase caseload.
In a briefing ahead of a House of Lords debate this month, the two associations said that the shortfall they faced in 2014-15 was likely to be, at a minimum, £96.8m, that this cost pressure would continue into subsequent years and that government needed to fund it in full.
In response to today’s announcement, the associations said it was pleased with the additional resource but that it was not sufficient.
“The government has rightly recognised the hard work of local authorities to put people at the heart of decisions about their care,” said the associations. “Referrals of people who lack capacity and have been deprived of their liberty have increased ten-fold since March last year and councils estimate the additional cost to be close to £100 million each year – four times the amount of this one-off commitment. While this remains the case, councils will continue to face difficult decisions about what services need to be cut to make up the gap between costs and funding.
“The LGA and ADASS will continue to call on the government to fully and properly fund any new cost pressures so that councils have appropriate time and money to ensure people are protected by the safeguards. Failure to do this will have a hugely damaging impact on crucial social care services.”