Story updated 25 November
Practitioners completed over 200,000 Deprivation of Liberty Safeguards (DoLS) cases last year but the backlog in applications left unfinished has continued to grow.
The number of completed applications in England reached a record 216,005 in 2018-19, 42% more than the 151,970 recorded two years previously, annual official figures from NHS Digital have shown.
However, the number of completed cases fell short of the number of new applications received in 2018-19 – 240,455, up from 227,400 the year before – meaning the number of applications left unfinished at the end of the financial year has continued to grow, though at a slower rate than previously.
This stood at 131,350 as of 31 March 2019, up from 125,630 the previous year and 108,545 in 2017. Also, the average length of time taken to complete an application has risen from 138 days in 2017-18 to 147 days in 2018-19 – substantially more than the 21-day statutory limit to complete a standard DoLS authorisation.
DoLS – who does what?
Managing DoLS applications – which come from care homes and hopsitals – are the responsibility, in England, of local authorities in their role as ‘supervisory bodies’, a statutory responsibility that tends to be vested in council MCA or DoLS teams.
Individual cases are managed by best interests assessors (BIAs), who are also responsible for carrying out the most significant of the six assessments required in every case – which involves determining whether the person is deprived of their liberty in the relevant care setting, whether this is necessary to prevent harm to the person, proportionate to the likelihood and seriousness of that harm and in their best interests. The vast majority of BIAs are social workers with additional training in the Mental Capacity Act 2005 and the law around deprivation of liberty.
Cheshire West impact
Last year’s rise in the number of DoLS cases is the latest in series of hikes driven by the 2014 Cheshire West judgment, which has taken the annual number of cases from 13,000 in 2013-14 to its current total, a rise of more than 17-fold. That ruling by the Supreme Court in effect lowered the threshold for what constitutes a deprivation of liberty in law: that a person is subject to continuous supervision and control and not free to leave their setting, with the purpose of their confinement and whether it is ‘relatively normal’ for a person of their level of disability rendered irrelevant.
In parallel with the rise in the number of DoLS cases has been a hike in the number of applications made to the Court of Protection (CoP) to secure orders authorising a deprivation of liberty in settings other than care homes and hospitals, such as supported living or Shared Lives arrangements, and in relation to those aged 16 and 17. Following the Cheshire West judgment, a streamlined system was set up to process cases such as these where the decisions made about the person concerned were not contentious, named after a subsequent judgment in 2014, Re X.
There were 110 Re X applications in the first quarter of 2015 (January to March) but this rose to 928 in the latest quarter for which figures are available, April to June 2019, official figures show. These cases are also subject to significant delay. Minutes of last month’s meeting of the Court of Protection User Group – which is made up of legal practitioners involved in CoP business – showed that there were 2,015 Re X cases awaiting determination with the oldest being eight months old.
Liberty Protection Safeguards
The volume of DoLS and Court of Protection cases is one of the reasons that the government, through the Mental Capacity Amendment (Act) 2019, has established a new system for authorising deprivations of liberty in health and social care, the Liberty Protection Safeguards (LPS).
While this encompasses 16 and 17-year-olds and deprivations of liberty in all settings, unlike DoLS, it is also designed to provide a more streamlined system for handling individual cases of deprivation of liberty, and spread the load of managing cases across NHS bodies and care homes, as well as councils.
The LPS is due to come into force in October 2020 but that may be delayed as a result of the forthcoming election and the repeated delays to Brexit.
Find out more about the LPS
You can find out more about what the LPS by reading our short guide to the new system, written by lawyer Tim Spencer-Lane, who worked on the legislation that created it.
A longer version of this guide is available to subscribers to Community Care Inform Adults, where you can also listen to Tim answer key questions on the LPS in one of our Learn on the go series of podcasts and read an in-depth guide to the Mental Capacity (Amendment) Act 2019.
This story was updated on 25 November to correct figures for Court of Protection applications relating to deprivation of liberty under the Re X process.