A council left over 1,000 people unlawfully deprived of their liberty in care homes or hospitals because they deemed their cases “low or medium priority” and so had not assessed them under the Deprivation of Liberty Safeguards.
In at least one case, Cheshire East Council had delayed assessing a Deprivation of Liberty Safeguards case for over six years, the Local Government and Social Care Ombudsman has found.
The watchdog uncovered the situation in an investigation concerning a care home resident, Mr Y, whose urgent DoLS authorisation – which by law should be handled within a week by the local authority other than in exceptional circumstances – was not reviewed for nine months.
In the report, completed in November 2020, the ombudsman found Cheshire East, like many councils, had been triaging cases and had left 1,032 deemed low or medium priority uncompleted, the earliest of which dated back to April 2014.
As a result, the people who were the subject of the applications had been unlawfully deprived of their liberty. The ombudsman said it was possible that in some cases they should never have been detained for their care and treatment in the first place, with less restrictive options used instead, causing potential injustice to them.
Cheshire East has agreed to the ombudsman’s recommendations to produce an action plan to deal with incoming DoLS applications and the backlog of unassessed applications, taking into account the implementation, due next April, of the Liberty Protection Safeguards (LPS) to replace DoLS.
It will also include a mechanism for addressing cases where a request is eventually not approved and unlawful deprivation of liberty had a potentially harmful impact on that person.
DoLS backlogs: the national picture
Councils in England have faced significant backlogs since the 2014 Cheshire West judgment led to a huge rise in case numbers by, in effect, reducing the threshold for a deprivation of liberty requiring legal authorisation. In 2019-20, English councils received 263,940 applications from care homes and hospitals to deprive a person of their liberty through DoLS, about 20 times as many as they received in 2013-14.
During 2019-20, councils completed 243,300 applications, by granting or not a DoLS authorisation, which was a record number. However, by the end of the year, 129,870 cases were left incomplete. This is despite the Mental Capacity Act placing a 21-day time limit on completing a standard DoLS authorisation, with urgent authorisations – where the provider initially self-authorises the deprivation of liberty – needing to be assessed within seven days.
Figures published on the first half of 2020-21 (April to September) show that the number of DoLS applications received by councils fell by 3.3% compared with the first half of 2019-20. The number of applications completed fell even more quickly, by 16.5%, suggesting that the backlog will have increased during 2020-21.
In 2016, the Association of Directors of Adult Social Services (ADASS) produced a tool for councils to triage DoLS applications into high, medium or low categories, based on the degree of control and restrictions the person was subject to and the extent to which they or loved-ones were objecting. It also proposed using desktop assessments to manage low-priority cases.
Mr Y, who has dementia, moved to a care home in March 2018 following a hospital admission, and the care home immediately made an urgent DoLS authorisation, enabling it to deprive him of liberty for seven days, during which the council was required to complete an application for a DoLS authorisation.
The ombudsman found the council failed to carry out a DoLS assessment before the urgent authorisation expired, which was a fault.
The council had a backlog of DoLS applications and told the ombudsman it used a triage process to prioritise applications, but the council could not provide any triage record for the application for Mr Y.
Its records show a council officer told Mr X, Mr Y’s son, in 2019 that the council originally categorised the application as “medium priority”. The council could provide no evidence to show it reviewed the application before January 2019, a nine-month delay that the ombudsman said was a fault. It completed the application and issued a standard authorisation in February 2019.
While the council was at fault for taking almost 11 months to process the care home’s DoLS application for Mr Y, the ombudsman found this did not cause him injustice, as he was well cared for, in an environment which, several best interests decisions confirmed, was right for him.
In its response to the ombudsman’s enquiries, Cheshire East said its current operating procedure for triaging DoLS applications was dated August 2020. This formalised a process it followed earlier, though the ombudsman said that the absence of a formal triage procedure until last year was also a fault.
For every medium or low priority application awaiting assessment, the council said it contacts the managing authority (the care home or hospital that submitted the application) every six months, requesting an update on the individual’s circumstances.
Based on this information, the council decides whether to re-categorise the person as high priority, at which point, their case is allocated immediately for assessment.
The watchdog acknowledged the national context where DoLS applications to councils across England increased hugely in 2014-15 and subsequent years, on the back of the Cheshire West judgment, and many councils are still battling significant backlogs in dealing with them.
Failure to comply with law
However, the ombudsman said the council was at fault for having such a backlog of DoLS applications awaiting assessment.
“For each case in the backlog, the council is failing to comply with the MCA 2005 and DoLS Code of Practice [and] without an authorisation in place, the people that are the subject of these applications are being unlawfully deprived of their liberty,” he said.
While applying the process properly may not have changed the outcome for many of the people affected, other than confirming that it was in their best interests to be deprived of liberty, the ombudsman concluded it was possible some of the people stuck in the backlog should never have been deprived of their liberty or there may have been less restrictive options available to meet their needs.
Laura Jeuda, Cheshire East Council cabinet member for adult social care and health, said: “We have agreed to remedy any injustice to those affected and to prevent similar problems in future. We will produce an action plan for dealing with DoLS cases and that will reflect the changes in law and government guidance resulting from the Mental Capacity (Amendment) Act 2019.
“The action plan will include a mechanism for addressing cases where a request is not approved, and unlawful deprivation of liberty could have a potentially harmful impact on that person.
“The action plan will be submitted to the ombudsman by 18 February and we look forward to the ombudsman’s approval of the plan.”