Emergency reforms to the Deprivation of Liberty Safeguards are likely to be introduced to ease pressures as plans to replace the system have been shelved for at least two years, Community Care has learned.
Government officials are looking at ways to amend the regulations or the code of practice underpinning the DoLS that would help councils tackle the backlog of more than 100,000 cases that has built up since the Supreme Court’s 2014 ‘Cheshire West’ ruling.
This is because plans drawn up by the Law Commission for a full-scale replacement to the DoLS have been put on hold until at least 2019 because there is no space for it in the government’s programme due to Brexit.
Emergency measures under consideration include relaxing the statutory timescales for DoLS applications and the criteria for DoLS assessors, including best interests assessors (BIAs) and mental health assessors.
Under the current code of practice BIAs and mental health assessors must be different people. The regulations state that mental health assessors must be a section 12 doctor or other registered medical practitioner with relevant experience, whereas a BIA must be an Approved Mental Health Professional, social worker, occupational therapist, nurse or psychologist.
The regulations also dictate standard DoLS authorisations must be processed within 21 days and urgent cases within seven days. However, official figures revealed that some 42% applications made in 2015-16 were not signed off by the end of the financial year. The average duration of applications not signed off was 205 days – almost seven months – for ‘urgent’ applications and 223 days for ‘standard’ cases.
Another option being looked at is whether the government should issue official practice guidance on prioritising cases and the use of desktop assessments to help clear DoLS backlogs. The Association of Directors of Adult Social Services has issued its own advice but officials are considering whether councils would feel more reassured by a government issued version.
The Cheshire West judgment effectively lowered the threshold for what constitutes deprivation of liberty in care, triggering a surge in cases that has left councils routinely failing to meet their statutory duties.
The situation prompted ministers to ask the Law Commission to devise a replacement scheme for the DoLS. But with the promise of primary legislation to replace the DoLS now off the government agenda for the foreseeable future, officials are examining the interim measures in a bid to find ways of saving costs and relieving some of the pressure on councils.
Any amendments to the DoLS regulations would have to be laid before parliament and any changes to the code of practice would likely need consultation. Consideration is also been given to piloting elements of the Law Commission reforms that are focused on practice, so would not need legislative reform.
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