Thanks to the herculean efforts being made across numerous supervisory bodies, the Deprivation of Liberty Safeguards (DoLS) backlog has reduced for the first time since the Cheshire West decision more than ten years ago.
According to the 2023-24 NHS Digital DoLS statistics, published on 22 August, the backlog is down by 2% from last year to 123,790.
Alongside this, and thanks again to those same efforts, the average length of time between applications for standard authorisations being lodged and them being completed has reduced, from 156 days in 2022-23, to 144 days.
This has all been achieved despite the number of applications for DoLS increasing by 11% from last year to an estimated 332,455 applications during 2023 -24.
These reductions may appear quite modest to the external observer and some statistics are either heading in the wrong direction (the proportion of DoLS applications which have an urgent authorisation attached rose from 56% last year to 58% this year), or stubbornly refusing to move (the proportion of standard authorisation applications completed within the statutory timeframe of a maximum of 21 days, as stipulated in Regulation 13(2), DoLS Regulations, remains at 19%).
This is, however, the first real sign that the tide is being turned by the literal army of dedicated DoLS team members, best interests assessors (BIAs) and mental health assessors embedded within supervisory bodies across the country. Although there is still a great deal more to do, dare we hope that there just might be a glimmering of light at the end of the tunnel?
Interpreting the data:
Delving deeper into the figures, 141,630 standard authorisations were granted in 2023-24, with 4,215 being refused. Of that 4,215 only 915 were refused due to the assessment criteria not being met. Meanwhile, 2215 were refused due to a change in circumstances, 1065 due to the person’s death, and 20 due to an administrative error.
On the face of it then, it appears that refusals occurred in only slightly under 3% of all applications which were fully assessed and that, excluding unnotified deaths and moves to another location, refusals only occurred due to the person not meeting one of the DoLS requirements in 0.63% of all cases which were fully assessed.
Does all this number crunching demonstrate that managing authorities and supervisory bodies are getting it right much of the time? Sadly, no. In 81% of cases, the person assessed had been unlawfully deprived of their liberty for a significant period leading up to the assessment. There are, of course, many unavoidable reasons for this. However, the longer someone is detained the more likely it is that, even if they object at the outset, deprivation becomes normal to them and their objections drop away.
For some of them, what also drops away is the ability to perform tasks which require executive cognitive functioning, such as some activities of daily living. This, in turn, may affect the results of any capacity assessment carried out by a BIA or mental health assessor months after the law says it should have been carried out.
In some cases, this may be due to a mental health condition deteriorating “naturally” and in others that deterioration may have occurred due to the environment within the placement, especially if tasks such as cooking, cleaning, and administering medication are being performed by staff, thereby ‘deskilling’ the person, albeit altruistically.
Additionally, the longer someone spends in a nursing or care home, the more likely it is that alternative options will cease to be available. The person’s house is sold to meet the care home’s fees, tenancies are given up and help and support which was available in the community moves on to support others and ceases to be available.
Put simply, if all DoLS assessments were carried out within the first 21 days the person is deprived of their liberty, assessors may come across more people who want to challenge the deprivation and who are capable of demonstrating that they either have the capacity to make that decision, or that a placement in a less restrictive setting (such as their own home with support) would be in their best interests.
The same external observer mentioned above may wonder why, if there are so many people who might object to their placement at the outset, there are not more challenges launched in the Court of Protection. After all, according to figures from the Ministry of Justice, only 653 DoLS challenges were launched between January and March 2024, which appears to be a mere drop in the ocean.
The legal aid challenge:
What is largely unknown outside of legal circles, is that non-means tested legal aid is not available to challenge urgent authorisations. In fact, non-means tested legal aid only becomes available once a standard authorisation is granted.
Anyone subject to an urgent authorisation can contact a solicitor for help, but one of the first things the solicitor will have to tell them is how much it is going to cost. If the person has savings (including capital assets such as a house) over £8,000, then they will have to pay some or all the costs of their solicitor, and a barrister – if needed.
Once a standard authorisation is granted, that legal help becomes free. It is one thing to have to wait for 21 days to obtain free legal help to challenge a deprivation of liberty. It is quite another to have to wait an average of 144.
Interestingly, when the statistics relating to the 653 legal challenges between January and March were released earlier this year, some considerable alarm was expressed, as these figures represented a 43% rise over the quarterly average from the past four years (even though the number of standard authorisations had risen by 34% over the same period – 105,225 in 2020-21 to 141,630 in 2023-24).
The alarm should be at the relatively low number of challenges, the continuing delays in applications for standard authorisations being assessed and the financial restrictions on access to justice for those detained.
So, although some of these figures represent a glimmer of hope, and those involved in making this happen are to be warmly thanked and congratulated, there is a great deal more work that needs to be done to help ensure that the fundamental rights of those deprived of their liberty are protected.
It is, of course, unrealistic to suggest that local authorities and health boards should devote more funding to training BIAs and mental health assessors. The pot is not bottomless, there are many more calls on these funds and such training is not cheap.
What can be done is to ensure that all those in health, social care and nursing and care homes who are responsible for conducting capacity and best interest assessments for cases where DoLS is being contemplated, receive good training in both the DoLS process and how to carry out defendable and dependable capacity and best interest assessments.
That way, the risk of depriving someone of their liberty when they have the skills to keep themselves safe in the community, only for those skills to be eroded as they wait months or even years for their DoLS assessments, are kept to a minimum.
Max Duddles is a solicitor and Bond Solon trainer.
10 September 2024