A council’s decision to stop assessing a majority of Deprivation of Liberty Safeguards (DoLS) requests left thousands of people with no or delayed access to proper legal protections, the Local Government and Social Care Ombudsman has found.
Staffordshire council decided not to carry out assessments of low and medium priority DoLS applications it received from care homes after the council created its own guidance for ranking requests, which it says was in response to financial pressures.
According to the watchdog, this meant that around 3,000 people had no or delayed access to the proper legal process designed to check whether a decision to deprive a person of their liberty is lawful.
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“It is possible that some of the people stuck in the backlog for years should never have been deprived of their liberty,” the Ombudsman said.
A council representative has since defended the system, stressing that “no-one’s life or health” was put at risk.
During an informal cabinet meeting in May 2016, Staffordshire council took the decision to stop carrying out assessments for DoLS requests it classed as low or medium priority.
The council explained to the ombudsman that the move was in response to a “lack of financial resources” caused by a 14-fold increase in the number of requests it had received from care homes following the Cheshire West ruling.
Impact of Cheshire West:
The Supreme Court’s Cheshire West judgment in 2014 widened the definition of what had constituted a deprivation of liberty in domestic law, stating that it concerned situations where a person was subject to continuous supervision and control and not free to leave their place of confinement.
Cheshire West led to a huge increase in the number of DoLS cases and applications to the Court of Protection to authorise deprivations of liberty in settings not covered by DoLS. As of 31 March 2018, there was a backlog of 125,630 uncompleted DoLS applications.
In order to identify high priority cases, the council created its own guidance for ranking DoLS requests, which categorised cases as low, medium or high priority. A rota of appropriately qualified staff was then tasked with examining and prioritising all incoming requests.
The council’s system was based on guidance published by the Association of Directors of Adult Social Services (ADASS), which aims to help councils identify high priority cases that need an urgent response.
However, the council adapted the guidance and altered the criteria, meaning fewer requests were categorised as high priority, meaning fewer cases met the required ‘high’ threshold for assessment set by Staffordshire.
Assessments late or incomplete
Council records demonstrated that, since July 2017, Staffordshire had met or done better than the 21-day timescale for assessing standard requests which it had classed as high priority.
However, the ombudsman found that the council had classed most requests as low or medium priority and these were not assessed at all. It was also shown that 74% of all standard requests were not assessed or assessed late and 92% of urgent requests were not assessed or assessed late.
Meanwhile, the backlog of DoLS requests continued to grow, increasing from 2,927 requests in March 2018 to 3,033 requests by the end of June of the same year. The oldest unassessed request was dated 11 August 2014.
Failure to comply with legislation and guidance
The ombudsman concluded that Staffordshire council was at fault because it stopped assessing a majority of DoLS requests in response to financial pressures. It said that the council had failed to comply with the legislation and guidance, the Mental Capacity Act (MCA) 2005 and DoLS code of practice.
“Without an authorisation in place, the people that are the subject of these applications are being unlawfully deprived of their liberty,” the ombudsman said.
“Because the council does not assess the majority of incoming requests, we simply do not know whether there are people waiting in the backlog who are wrongly being deprived of liberty when they actually have capacity or when less restrictive options are available.”
Despite acknowledging that the government is currently amending the MCA to overhaul the DoLS system, which will be replaced with a new set of safeguards for protecting people deprived of their liberty, dubbed the Liberty Protection Safeguards, the ombudsman reminded the council that the current law was still in force and said financial difficulties were no excuse for unlawful practice.
“Resource constraints can never be a legitimate reason for not carrying out the assessments required by law or statutory guidance,” the ombudsman argued.
“While councils may decide how to prioritise cases, it is not acceptable that the only way low and medium priority applications are resolved is because the people involved move away or die.
“I would urge others to look at how they are carrying out assessments to ensure they comply with relevant law and guidance.”
Huge additional burden on councils
Responding to the ombudsman’s report, Staffordshire council’s deputy leader, Alan White, defended the council’s policy:
“The test case put a huge additional burden on every council and we, like others, have prioritised DoLS applications to ensure those assessed as being at the highest risk are properly supported.
“No-one has complained about the policy of prioritisation since its introduction, no individual has suffered injustice and no-one’s life or health has been put risk.
“The Government and ADASS have backed a prioritising approach and it is generally accepted that the current DoLS legislation is no longer fit for purpose.”
White added that the new system for safeguarding people would need “appropriate funding” to help councils process applications, but the council would continue to focus on protecting the “most vulnerable” in the community.
Meanwhile, an ADASS spokesperson said: “We are working with the CQC and the Department of Health and Social Care to find a sustainable way to deal with the backlog of deprivation of liberty applications.
“Any new approach should aim to help reduce the cost to councils of processing these applications, while also making sure that they meet their legal requirements and safeguard people who lack the capacity to consent and need to be deprived of their liberty.”
The ombudsman has recommended that Staffordshire council produces an action plan for how it would deal with all incoming DoLS requests and the backlog of unassessed DoLS requests.
It said that the plan should be produced within three months of the Mental Capacity (Amendment) Bill, which would introduce LPS, being finalised by Parliament. This is due to happen very shortly.
It added the action plan should include a mechanism for addressing those cases where the request is eventually not approved, and an unlawful deprivation of liberty has had a potentially harmful impact on that person.