Related Sector: Health & Social Care
The Welsh Government has recently published a summary of responses following its consultation on the Draft Regulations for Wales for the Liberty Protection Safeguards.
Although, to many, this may now seem like a redundant publication, the document did observe that “the Welsh Government has recognised that there are a number of challenges presented by the existing deprivation of liberty safeguards scheme, particularly in light of increased numbers of DOLS applications, and that it will need to consider how to strengthen the regime.”
One of the most pressing of those challenges will be reducing the DoLS backlog. Earlier this year, Care Inspectorate Wales (CIW) published their Deprivation of Liberty Safeguards Annual Monitoring Report for Health and Social Care 2021-22. In it, they found that nearly all Supervisory Bodies in Wales were unable to provide assurance that people’s human rights are not being breached through being unlawfully deprived of their liberty under DoLS. This is mainly due to a significant proportion of requests for Standard Authorisations not being processed within the, maximum, 21-day, time limit. The report states that “Supervisory Bodies must ensure people’s rights are protected and assessment for all applications are undertaken within the stipulated number of days as set out in the DoLS Code of Practice”.
To give an idea of the scale of the problem, in the time frame considered by the CIW report, most applications for standard authorisations were considered by local authorities. In total, 49% (4,808) of all applications made to local authorities were for standard authorisations. Of those considered, 95% were authorised but only 20% of assessments were completed within 28 days. This means that, throughout Wales, around 3,800 people were unlawfully deprived of their liberty in 2021 to 2022. No local authority has been able to get remotely close to completing all their assessments in time, although Merthyr Tydfil did the best, with 56% of their assessments being completed within 28 days. Wrexham, for reasons which really should be carefully explored, seem to have received no requests for standard authorisations.
This situation cannot and should not be allowed to continue. Quite apart from the considerable moral and ethical issues, it is simply not lawful.
More BIAs needed
Since CIW’s report, we have all learnt that DoLS is going to be with us for the next few years, so now is a pertinent time for all Supervisory Bodies to consider how best to strengthen their resources to better meet the needs of those deprived of their liberty. As to fail to do so would be to unlawfully deprive some of the most vulnerable members of our society of their Right to Liberty and Security of Person.
The only way for Supervisory Bodies to ensure they are acting in accordance with the European Convention on Human Rights, something they are required to do by s6 Human Rights Act 1998, is to significantly and permanently increase the number of DoLS assessments carried out. To make inroads into the backlog, this increase should be larger than the number of requests for standard authorisations received, where the overall period of the deprivation of liberty exceeds 21 days. There is only one way to achieve this. More BIAs need to be found. This requires appropriately qualified and experienced volunteers and training.
There is one key reason why the floodgate of challenges to overdue standard authorisations has not come crashing open. It comes down to the way legal aid for DoLS works. Under the legal aid scheme, an applicant is entitled to free and independent legal advice if they wish to challenge an existing standard authorisation. Challenges to urgent authorisations are means tested. This has the effect of significantly reducing the number of these challenges and, effectively, limiting them to the wealthy or those relative few who would qualify for full legal aid in any event. There is considerable pressure being put on the Legal Aid Agency to change their rules on this which has, so far, been resisted by the Government. In England, now, the average wait for a standard authorisation is 153 days. This length of time has increased, and many Judges and prominent barristers are openly expressing their dissatisfaction at the Legal Aid Agency’s current approach. In fact, the Joint Committee on Human Rights recently asking the Department for Health and Social Care (DHSC) if the availability of non-means tested legal aid will be extended to cover urgent authorisations.
So far, the Minister of State for Social Care (Helen Whatley MP) has maintained the current position, but the purse strings have recent been loosened to make non-means tested legal aid available to those under18 who are deprived of their liberty.
Ms Whatley has also made it clear that all individuals and bodies with legal duties under DoLS must continue to apply the safeguards within their legal timeframe to “ensure the rights of people without the relevant mental capacity are protected”.
It seems that, with the prospect of LPS being removed from the table “in the life of this parliament”, the pressure is now firmly on Supervisory Bodies to get their houses in order and act lawfully when considering DoLS authorisations.
Author: Max Duddles
This article was first published on 28 June 2023
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