Number of deprivation of liberty cases "to rise ten-fold", warn councils

June 10, 2014

Local authorities expect the number of deprivation of liberty safeguards (DoLS) referrals from hospitals and residential settings to rise ten-fold following the Supreme Court’s ruling in Cheshire West and P&Q, according to research.

A survey of adult social care departments conducted by the Association of Directors of Adult Social Services (ADASS) found that they believe referrals will rise from 10,050 in 2013/14 to 93,900 in 2014/15.

The findings were given to the President of the Court of Protection, Sir James Munby, at a two-day hearing last week. The purpose of the hearing was to examine administrative procedures the court might adopt to deal with the impact of the Supreme Court ruling. Judgment has been reserved.

ADASS said the number of DoLS requests from domestic settings where the State has a responsibility, and which end up in court, were also likely to rise from 134 in 2013/14 to 18,633 in 2014/15.

In a statement the Association said: "Put together, these activities reflect an overall 10-fold increase from 10,184 in 2013/14 to 112,533 in 2014/15, while the councils polled anticipate additional costs of £45.195m for 2014/15"

ADASS President David Pearson said: “Our first concern is that people who do not have capacity to make important decisions, or who are not free to leave a hospital, residential home or a domestic setting, receive proper consideration of what is in their best interests.

"We are also keen to ensure that their needs are met in a timely manner and that any process should not cause any undue delay as well as complying with the law. Clearly the judgment by the Supreme Court has clarified that a far greater member of people require an assessment and this has a significant additional extra cost."

In an earlier hearing last month, the CoP President predicted that an “immense burden” would fall on local authorities as a result of the Cheshire West ruling, with the number of deprivation of liberty cases “vastly greater than previously assumed”.

In March this year the Supreme Court said that all three individuals at the centre of the P&Q and Cheshire West cases were deprived of their liberty, and so should benefit from the relevant protections of the Mental Capacity Act 2005.

Lady Hale said people with disabilities, both mental and physical, had the same human rights as the rest of the human race. What it meant to be deprived of liberty “must be the same for everyone, whether or not they have physical or mental disabilities”, she said.

Rejecting the “relative normality” approach favoured by the Court of Appeal in Cheshire West, Lady Hale added: “The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be, should make no difference. A gilded cage is still a cage.”

Both the Department of Health and the Care Quality Commission have issued briefings on the implications of the judgment and actions that should be taken.

Impact of Supreme Court deprivation of liberty ruling “huge”, says council

Dept of Health suggests actions to take after Supreme Court DoL ruling

Watchdog issues briefing on Supreme Court deprivation of liberty ruling