Deprivation of Liberty Safeguards caseloads reach record level

Story updated 5 August

Deprivation of Liberty Safeguards (Dols) case numbers reached record levels from April to June 2015, official figures published today showed.

The statistics from the Health and Social Care Information Centre also illustrate the extent to which councils are breaching legal timescales for completing Dols cases.

The HSCIC figures show that Dols caseloads have risen quarter-on-quarter since the landmark Supreme Court judgement in March 2014 in the cases of P v Cheshire West and Chester Council and P&Q v Surrey County Council (the “Cheshire West” case).

This effectively lowered the threshold for what constituted a deprivation of liberty for people who lacked the capacity to consent to their care arrangements, requiring provides to make many more applications to authorise deprivations in their settings.

There were 33,000 applications to deprive people of liberty from care homes or hospitals from April to June in the 93 English councils who had submitted data for the previous four quarters. This was more than double the number they received from April to June 2014 (14,800) and more than they received in July to September 2014 (21,700), October to December 2014 (25,900) and January to March 2015 (28,700).

The rise in Dols caseloads since the Cheshire West judgement (Source: HSCIC)

Local authorities must process Dols cases within 21 days for standard authorisations and seven days for urgent authorisations, where a provider has to authorise the deprivation itself.

Breached timescales

However, of applications received by the 93 councils from April to June 2014 – over a year ago – 28% have either still not been signed off by the local authority or have been withdrawn by the provider. The proportion of cases not signed off or withdrawn rose to 48% for applications received in July to September 2014, 58% for October to December 2014, 67% for January to March 2015 and 71% for April to June 2015.

There’s no way of knowing how many of these applications were withdrawn and how many have not been signed off, and therefore have breached the timescales. But the number for which timescales have been breached – by several months in some cases – is likely to be substantial.

Research published last October by Community Care showed that timescales had been breached in half of applications received between April and August 2014.

Calls for more funding and longer timescales

In response to the figures, the Association of Directors of Adult Social Services (Adass) said the government needed to step in to provide councils with more funding and extend statutory timescales.

“”Local authorities are pulling out all the stops to respond to this unprecedented, unpredicted and unpredictable upsurge in demand for DoLS assessments,” said Adass president Ray James. “Along with other partners, Adass is urging central government to secure extra time within which to conduct these assessments, as well as to provide extra money in order to pay for the huge increase in costs an otherwise welcome legal judgement has brought with it.”

It is likely that the government will resist calls to extend statutory timescales as this would require legislation. It has commissioned the Law Commission to develop a new legal framework for deprivation of liberty. Initial proposal are currently out to consultation, with the commission due to produce a draft bill before the end of 2016, which could lead to government legislation being introduced in 2017.

Councils must follow guidance to reduce legal risks

The Department of Health has said that councils following official guidance about how to handle Dols cases should not be “unfairly penalised” for breaching timescales.

In a letter to local authority and NHS Mental Capacity Act or Dols leads in January this year, DH policy lead Niall Fry said: “The Department is aware that many local authorities are struggling to meet legal deadlines for processing applications and that local authorities are working hard across a number of different areas and priorities (for example, implementation of the Care Act).

“We do not expect that local authorities who are following national DH, [Association of Directors of Adult Social Services and Care Quality Commission] guidance (and who have a plan in place for responding to the Supreme Court judgment in a way that makes clear that paramount importance of the well-being of vulnerable individuals) should be unfairly penalised.”

Professionalism and dedication of staff

This remains the department’s position. In a statement in response to the HSCIC figures, a DH spokesperson said: “These figures show that thousands of vulnerable individuals are having the conditions of their care independently scrutinised to make sure such care is the least restrictive possible and in the individual’s best interests. Staff are working tirelessly to deliver Dols alongside their many other responsibilities – their professionalism and dedication is clear.

“We are aware that processing Dols applications within set timescales is a considerable challenge. The Department has worked closely with professionals and partners to cut down the bureaucracy of the Dols application forms and to prepare detailed best practice guidance. We recently provided an additional £25m to support local authorities and we are funding the Law Commission to undertake a fundamental review of the Dols legislation.”

The £25m is a reference to one-off funding provided for 2015-16 to help councils manage the pressures on Dols. This falls short of the £97m that Adass has estimated that councils need to manage the increased number of cases.

Any decision on future funding of Dols will be taken as part of the government’s spending review, due to report on 25 November.

Robust process

In an analysis of the issue of timescale breaches for Community Care published last October, solicitor and mental capacity law expert Jess Flanagan said that while councils could not be held accountable for the sharp rise in cases, they could be held accountable for how they responded to this.

She said that councils who had a “robust process” where they prioritised high-risk, highly contentious and more urgent cases would be able to provide relatively good evidence that they had tried their hardest not to breach timescales.

In relation to the risk of being found to have unlawfully breached the timescales, she said: “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.”