‘Demands of deprivation of liberty cases mean delays are inevitable’

By Stephen Chandler 

Since the landmark Supreme Court ruling in the Cheshire West case in 2014, which significantly expanded the definition of deprivation of liberty, councils have been tackling a huge increase in the number of applications to deprive people of their liberty. There was a tenfold increase in Deprivation of Liberty Safeguards applications, for people in care homes and hospitals, in 2014-15, while councils have also had to make many more applications to the Court of Protection to deprive people of liberty outside of these settings.

The importance of working through these cases efficiently and accurately cannot be overestimated – no one should be deprived of their liberty unless there is absolutely no doubt that this is in their best interests, that no less restrictive option is available, and it is the only way to safely provide the care and treatment that they need; to ensure this is so, appropriate safeguards must be in

place.

Doing nothing not an option

The Association of Directors of Adult Social Services (ADASS) has been clear from the outset that doing nothing is not an option, and I’d like to take the opportunity to highlight some of the work that’s been taking place.

Since the Supreme Court ruling, ADASS has worked proactively to provide leadership and support councils while representing the voices of directors of adult social services in top-level meetings.

In the most practical terms, advice notes have been produced for councils, while a tool (available on the ADASS website) to help with prioritising cases was developed with the sector, helping councils to take a pragmatic approach to the increased workload.

Tool to prioritise cases

The highest priority should be given to cases where restraints are frequently used, contact with friends and family is limited, continuous one-to-one care is given, or there have been objections from the individual or those close to them. Less urgency can be applied to those cases where there are no objections to the placement, there is no evidence of restraints being used, or in end-of-life and intensive care situations where there would be no benefit to the person from safeguards. The types of situations described apply to both the statutory scheme and those outside it whose authorisations need to be approved by the Court of Protection.

DoLS leads from around the country have been supported to develop and share best practice, and ADASS led a complete review of DoLS forms, which resulted in new forms and guidance to improve the process for councils, vulnerable people and their carers.

Enormous task

Shortly after the Supreme Court ruling, ADASS also began the enormous task of emphasising and articulating to government the impact of the judgements, ultimately resulting in additional in-year funding in 2015-16 worth £25m.

Unfortunately, delays in determining DoLS applications are almost inevitable, given the process that must – quite rightly – be followed. In relation to applications to the Court of Protection to deprive people of their liberty, even when those who may need authorisation by the court have been identified – no small task in itself – the amount of time and staff required to process an application is significant.

Council solicitors need to complete large parts of the required forms, followed by further input from a social worker. Interviews need to be carried out with the person to whom any court order authorising deprivation of liberty would apply by both the social worker and an independent person, and those with an interest in the person’s care need to be consulted. Medical evidence must also be sought, followed by the completion of a detailed care plan.

Several weeks to complete process

It can take weeks – if not months – to complete an application. There is only so much each worker can do in any one week, accepting all of the statutory duties placed on them.

There is also, of course, the issue of using reserves to cover the costs of DoLS applications. Councils do have money in reserves – that’s required by law. Unfortunately, they can’t be dipped into to cover every budget shortfall, especially when significant cuts to council funding over the last parliament have left shortfalls in more than a few areas.

As outlined above, there is a significant staff and time cost involved in processing applications, not to mention training and other associated costs. This is why we’ve called repeatedly on the government to provide additional funding for DoLS under new burdens legislation.

If anyone needs advice on DoLS from ADASS, please visit our website.

Stephen Chandler is ADASS’s mental health lead