Councils warned over moves to delay deprivation of liberty referrals

Councils are urging care providers to hold-off submitting Deprivation of Liberty Safeguards (Dols) referrals in the face of “significant” backlogs, the Care Quality Commission has warned.

The regulator’s annual Dols review found some councils had asked care homes and hospitals to “delay, stagger or minimise” applications, a situation the CQC said increased the risk of people being left with unlawful care arrangements.

Providers make Dols referrals to get legal authorisation for care placements they believe could be a deprivation of someone’s liberty. Each application requires a council to assess if a person is deprived of their liberty and, if so, whether or not it is in their best interests.

Councils have been hit by a sustained surge in requests for Dols authorisations after a March 2014 Supreme Court ruling (see below) effectively lowered the threshold for what constituted a deprivation of liberty.

Applications increased from 13,715 in 2013-14 to 137,540 in 2014-15. Backlogs have also built up. More than 40% of applications received in 2014-15 were still to be completed by the year’s end. The previous year, the figure was 2.6%.

Any attempt by councils to delay referrals is likely to be an attempt to keep case numbers manageable and, with most applications legally needing to be completed within 21 days of referral, minimise time limit breaches.

The CQC said it recognised the significant pressures facing local councils but warned they must not “inappropriately minimise” referrals as this increased the risk of people being deprived of their liberty unlawfully.

The government has previously stressed that “providers should not delay” applications, in guidance it issued on complying with the Supreme Court ruling.

The CQC’s annual review found a “huge variation” in providers’ use and understanding of the Dols and said improvement was needed across NHS and social care. Some providers did not have clear and up-to-date policies in place and were inconsistent in making sure capacity assessments were properly carried out and decisions made in the best interests of people.

The regulator concluded that the variation in practice was “unacceptable” and warned the pressures on the system since the Supreme Court ruling were “unsustainable”. The regulator also raised concerns that the financial support for Independent Mental Capacity Advocacy was not meeting demand.

A replacement for the Dols is in the pipeline. The government asked the Law Commission to draw up proposals for a new legal framework to authorise deprivation of liberty. A draft scheme was put out to consultation in July and a final set of proposals will be presented to ministers by the end of 2016.

The CQC said it welcomed the Law Commission’s reform proposals as it was “clear that the current situation cannot continue”.

David Behan, CQC chief executive said: “Until reform occurs, it is important that the current system is complied with in the interests of the people the legislation was put in place to safeguard and, in particular, that the quality of people’s care is not compromised.”

About the ‘Cheshire West’ 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.

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:-

1. they were under continuous supervision and control;
2. they were not free to leave, and;
3. their care arrangements were the responsibility of the state.

The ruling rendered irrelevant factors that had been allowed for in the past, such as whether the person objected to their care arrangements.The Supreme Court also made clear that such a deprivation of liberty would apply in a domestic setting, as well as in health or social care placements.

The judgement was welcomed for extending key human rights safeguards to a broader group of vulnerable people. But it meant that, overnight, many people in care homes, hospitals and supported living arrangements suddenly met the threshold to have their care arrangements assessed or reassessed to see if they were deprived of their liberty and, if so, whether or not this was in their best interests.