DoLS: older people routinely having rights breached because of failure to tackle ‘huge’ backlog, warns charity

Older people are routinely having their human rights breached because of a failure to tackle the “huge” Deprivation of Liberty Safeguards (DoLS) backlog and a system in “complete disarray”.

That was the verdict from an Age UK report that warned many people were being unlawfully deprived of their liberty because of the government’s failure to reform DoLS, significant under-resourcing, best interests assessor shortages and a culture of emphasising safety over rights.

There was a backlog of 126,000 uncompleted cases in England as of 31 March 2023, up 2% on the total 12 months previously, while completed DoLS applications took an average of 156 days during 2022-23 – over seven times the 21-day statutory timescale.

This is despite councils – who are responsible for assessing all DoLS cases and deciding whether to authorise deprivations – completing record numbers of cases (289,150) in 2022-23, up 14% on the year before.

Unlawful deprivations of liberty

Depriving a person of their liberty without this having been authorised through a legal procedure is unlawful.

“This means that many older people and others who lack, or are perceived to lack, mental capacity, will have been unlawfully deprived of their liberty for long periods of time before a DoLS assessment was carried out and a DoLS authorisation issued, without anyone external to the care setting checking whether this was in their best interests,” said the Age UK report.

Liberty Protection Safeguards shelved

At the same time, the government has shelved its plan to replace DoLS with the Liberty Protection Safeguards (LPS) until after the next election, following repeated delays to its planned implementation date.

LPS was designed to minimise backlogs by providing a more streamlined alternative to DoLS for safeguarding people who needed to be deprived of their liberty for their care or treatment but who lacked the capacity to consent.

Age UK said LPS had been “effectively kicked into the long grass for a future administration to deal with” – though there is no indication of whether an incoming Labour government would implement the system.

This means that DoLS will likely remain in place for the for the foreseeable future.

‘Chronic underfunding’ of DoLS

However, Age UK said there was “chronic underfunding” of the system. The government’s original impact assessment for DoLS said just 21,000 would be subject to the safeguards in England and Wales on a “worst case scenario”, the total in England alone is now 300,765.

The disparity is rooted in the Supreme Court’s 2014 Cheshire West judgment. This set a much lower threshold for what constituted a deprivation of liberty than had previously been applied in law and led to a tenfold increase in case numbers within a year.

However, while the government has increased funding for adult social care generally since 2023, none of this is ring-fenced for DoLS, and Age UK said it feared that the system would not get prioritised because of the other pressures on social care.

Lack of BIAs and training opportunities

As well as a lack of money, research commissioned by Age UK in early 2023 for the report found that a lack of staffing – particularly of best interests assessors (BIAs) – was undermining councils’ abilities.

Researchers spoke to six family members of people subject to DoLS, six care home staff who referred DoLS cases and eight local authority practitioners responsible for authorising cases.

As many BIAs had substantive social work roles, council representatives said that it was often difficult to secure their time to cover DoLS rotas, forcing authorities to turn to independent assessors to cover gaps.

But they were often challenging to recruit because of poor pay and the high levels of responsibilities independent BIAs had to bear.

Also, before LPS was shelved, some councils stopped putting social workers on BIA training courses because the role would have been scrapped under the new system

As previously reported in Community Care, DoLS leaders have warned that many universities stopped providing BIA training for the same reason.

Focus on safety over rights

However, the Age UK report also identified a view among some staff that unlawfully depriving an older person of liberty was not a significant breach of human rights so long as they were safe.

One local authority representative said the backlogs were “not that big of a deal” because people were safe and “if there were concerns, they would be raised and prioritised”.

“I struggle to see why you have to jump through all of these hoops for someone in a nursing home, when they’re happy there and don’t want to leave,” said another. “It seems a waste of resource.”

Age UK said that it was not possible to assume that older people were safe without the oversight provided by DoLS, as “resource pressures in care homes mean that care is not always delivered to a high standard and that some older people will experience neglect or abuse”.

The report added that “a focus on ‘safety’ as mattering above all else is both paternalistic and inappropriate”, and contrary to the Mental Capacity Act 2005’s emphasis on promoting a person’s autonomy.

‘Shortage of trained professionals and funding’

The Association of Directors of Adult Social Services echoed several of the report’s findings.

“We know that many councils have long delays to assess whether people are getting the right care, in the right place. This is down to a shortage of trained professionals to carry out the assessments, lack of funds to recruit them, further confused by the no timetable from the government to implement proposed reforms to the system.

“ADASS has consistently called on the government to work with directors of adult social care to streamline the current process, ensure that resources can be focused on people the system was intended to protect and that an independent check is in place to protect their rights and best interests.”

For the British Association of Social Workers England, the co-chairs of its adult group, Margaret Young and Jackie Mahoney said: “It is very concerning to hear that there continue to be significant delays within local authorities in ensuring that DoLS are in place, especially with the ongoing difficulties in recruiting social workers.

“The main issue is that the government has delayed the implementation of Liberty Protection Standards – this policy needs to be reviewed with urgency.”

Recommendations

On the back of the report, Age UK said:

• The government should ring-fence resources to ensure DoLS was properly funded, as well as fully funding LPS, should it be implemented, to enable councils and NHS bodies – who would also authorise deprivations under the proposed reforms – to meet their legal obligations.
• Ministers should also as quickly as possible what the future system for authorising deprivations of liberty will be, whether LPS is implemented or not, “as delays and indecision are having a significant impact on the day-to-day functioning of the system and leaving many unprotected”.
• Local authorities – with the help of greater certainty over the future direction of travel – should continue to recruit BIAs until DoLS is replaced.
• A cultural shift is required within social care to ensure that older and disabled people’s rights are recognised and protected.

DoLS ‘ensures people get care they need’

In response to the report, a Department of Health and Social Care (DHSC) spokesperson said: “Protecting the most vulnerable is a priority and our current Deprivation of Liberty Safeguards system ensures people who lack the mental capacity to consent can receive the care or treatment they need.”

They added that older people and others who had issues in relation to mental capacity would benefit from the DHSC’s “historic funding uplift” for adult social care and accompanying reforms to the system, including “significant investment in the adult social care workforce, technology and support for unpaid carers“.