Related Sector: Health & Social Care
Bond Solon Trainer, Sue Inker provides a more detailed look at how we got here...
The Local Government and Social Care Ombudsman's (LGSCO) final decision has found that Surrey County Council failed to assess Deprivation of Liberty Safeguards (DoLS) requests in accordance with timescales set out in the Mental Capacity Act, thereby restricting or wrongfully depriving people of their liberty.
The complaint and the Ombudsman's role and powers
The Ombudsman, whilst investigating another complaint, became aware of “significant delays” by Surrey County Council in completing the DoLS assessments. The Ombudsman can investigate separate matters which come to their attention during an existing investigation, where they consider a member of the public, who has not complained, may have suffered an injustice as a result.
The DoLS are an amendment to the Mental Capacity Act 2005. They provide protection for individuals who have a mental disorder, and who lack capacity to consent to their confinement in care homes and hospitals for their care and treatment. The DoLSare fundamentally about protecting the human rights and freedoms of individuals who are deprived of their liberty. They set out a procedure in law for authorising a deprivation of liberty, in accordance with the requirements of Article 5 (1) (e) of the European Convention on Human Rights. Without an authorisation in place, a deprivation of liberty is unlawful.
The DoLS Process
It is the duty of the Managing Authority (Registered Manager of the Care Home or Senior Professional on a Hospital Ward) to commence the process if they consider the safeguards are appropriate. It is the duty of the Supervisory Body (LA in England and LA or LHB in Wales), on the application of the Managing Authority to organise and conduct the six assessments required to establish if the person meets the qualifying requirements for an authorisation. The Supervisory Body selects two assessors, a Best Interest Assessor, and a Mental Health Assessor to conduct the six assessments. If the person meets the qualifying requirements, then an authorisation will be granted for up to a year. Once under authorisation, the person has very important rights, which include the right to review, appeal advocacy, legal aid and monitoring.
There are two types of authorisations with very strict timeframes under which the six assessments have to be conducted and the authorisation granted.
On the 19th of March 2014 the Supreme Court delivered the Judgment in the following cases - P v Cheshire West and Chester Council and P&Q v Surrey County Council. The Court held that the restrictions within the care plan of the three individuals involved in the case, amounted to a deprivation of liberty. This is because the restrictions met “the acid test” of continuous supervision and control and not free to leave. The restrictions within the care plans for the three individuals were significantly lower than the restrictions in the care plan of HL in the leading European Court of Human Rights case of HL v UK 45508/99  ECHR 471. This led to a significant increase in the number of DoLS requests across England and Wales.
In response to the increase in demand for DoLS assessments, the Association of Directors of Social Services (ADASS) published a screening tool to help Councils prioritise DoLS requests. Despite the introduction of the prioritisation tool, the duties under the law remained the same. In the introduction of the guidance, it cautions Councils “that the use of this tool must be balanced against the legal criteria for the DoL Safeguards which remains unchanged”.
In light of the LPS being delayed, the Joint Committee on Human Rights (JCHR) wrote on the 28th May 2023 to the Minister of State for Social Care to express its view that the “delay is deeply concerning, given the serious problems with the DoLS system”.
The Minister, Helen Whately MP responded to the letter on the 14th May 2023 and stated in her reply:
“As you are aware, the Deprivation of Liberty safeguards (DoLS) set out in the Mental Capacity Act 2005 (MCA), is the system that provides for the lawful deprivation of liberty, of adults who lack the relevant capacity in hospitals and care homes, in accordance with article 5 of the European Convention on Human Rights. It is important that everyone concerned upholds this system.I do, however, recognise the challenges facing this system following the Supreme Court judgment in 2014 in the ‘Cheshire West’ case which increased the number of people considered as deprived of their liberty.”
The JCHR asked the Minister in their letter:
‘’What steps are being taken to address the delays to the processing and completion of DoLS applications, with the aim of ensuring that no one is unlawfully deprived of their liberty in a care setting?’’
The Minister replied:
“The Government has made it clear that all individuals and bodies with legal duties under the DoLS must continue to apply these important safeguards to ensure the rights of people without the relevant mental capacity are protected. Local authorities have a duty to make sure that they are processing all cases under DoLS and receive specific funding to process cases in the NHS through the Local Government Community Voices Grant. Annual data on the DoLS clearly shows wide variation in how local authorities are processing and completing their DoLS applications. Many local authorities already use a prioritisation tool to manage DoLS cases, such as that developed by ADASS following the Cheshire West ruling in 2014. The Government has made available up to £7.5 billion of additional funding over two years to support adult social care and discharge – with up to £2.8 billion available in 2023/24 and up to £4.7 billion in 2024/25. Local authorities have flexibility about how to use this funding to meet local needs.”
The Ombudsman’s final decision revealed that Surrey had 5,700 outstanding DOLS requests on 31st March 2022. They noted that this was “the highest backlog in England”. Further statistics contained in the report showed that the mean duration for Surrey County Council to complete a DoLS assessment was 345 days as opposed to the mean duration in England of 154 days.
The LGSCO noted that Surrey Council appeared to be following the ADASS screening tool to prioritise their DoL requests but were not following the legal criteria contained in the Mental Capacity Act 2005 around timeframes. The Report states “the Council is failing to issue DoLS authorisations within the statutory timescales and in many cases the delay is so significant that the person has moved to another care or nursing home or has died without the Council’s DoLS authorisation”.
The Ombudsmen recommended the Council create an action plan addressing the delays which should state how they propose to reduce the backlog.
With the Government’s decision not to implement the LPS “in the lifetime of this Government”, which in real terms effectively means not before 2025 at the very earliest, the DoLS remain law.
Councils will need to take note of this Ombudsmen’s report and the Government’s response to the JCHR’s question on the processing and completion of DOLS applications. Both make it very clear that the ADASS approach to “prioritisation” is of absolutely no relevance whatsoever to the unlawfulness arising from any unauthorised deprivation of liberty. The law is the law.
As Keehan J so eloquently wrote in the case of Birmingham City Council v D and W (2016) EWCOP 8 paras 137 and 138, when the local authority stressed that the outcome of the decision in the case involving the deprivation of liberty of 16- and 17-year-olds would have significant resource implications for this and all local authorities nationally:
“The issue of the resource implications is a matter for the local authority and, ultimately, the Government; it is not, should not and, in my judgment, cannot be a relevant consideration for this court. The protection of the human rights of those with disabilities or the vulnerable members of our society, most especially in respect of the protection afforded by Article 5 (1), is too important and fundamental to be sacrificed on the alter of resources.”
Author: Sue Inker
Date: 18 July 2023