CQC urges action on backlog in Deprivation of Liberty Safeguards applications

The Care Quality Commission has urged local authorities to address – “as quickly as possible” – the backlog in applications to use the Deprivation of Liberty Safeguards (DoLS).

The watchdog described the rise in applications since March 2014 as “rapid and unprecedented” and acknowledged that it was putting pressure on local authorities.

The CQC noted that at the end of September 2014, there were still 19,429 applications where a decision was still to be made. This contrasted with the end of 2013/14 when there were just 356 where a decision was still to be made.

“While we recognise the pressure local authorities are under, this represents a worryingly high number of people being deprived of their liberty without external scrutiny and authorisation,” the Commission said.

“We expect local authorities to do all they can to assess the backlog of requests for authorisation and prevent its recurrence, for example by using the triage tools created by the Association of Directors of Adult Social Services, and we will monitor their progress throughout the rest of 2014/15.”

The dramatic increase followed the watershed Supreme Court ruling in Cheshire West, which clarified the test on who has been deprived of their liberty and thus enjoys the DoLS protections under the Mental Capacity Act.

Since this clarification, there had been an eight-fold increase in the number of applications from hospitals and care homes, the CQC said. The numbers of applications to the Court of Protection for authorisation relating to community settings “are also climbing, and are predicted to climb higher”.

The watchdog’s comments came as it published its fifth annual report on use of the safeguards, covering 2013/14.

The Commission said it welcomed the rise in applications “as it shows willingness among providers to protect the rights of individuals, and encourages external scrutiny of their care when a vulnerable person might be deprived of their liberty”.

In its report, which can be viewed here, the CQC recommended that:

• Local authorities continue to consider the use of advocacy for all those subject to the Deprivation of Liberty Safeguards.
• Local authority leads for the MCA and DoLS should create good working relationships with their local coroners. “This is likely to be of great benefit to ensure that a consistent message is given to providers and so that they can work together in dealing with the considerable extra activity as a result of the Supreme Court judgment.”
• Local authorities and Independent Mental Capacity Advocacy (IMCA) providers work together to enable IMCAs to carry out their role to support the person or their unpaid Relevant Person’s Representative (RPR) to challenge an authorisation to the Court of Protection when it is the person’s wish, "whatever the IMCA’s views on the rightness of the authorisation".

This report also found amongst other things that there continue to be regional variations in application rates.

The Commission said: ““The safeguards are most often used to protect the rights of older people, who may be living with dementia so we expect to see more Deprivation of Liberty Safeguards applications in parts of the country with a relatively older population.

“However, even adjusting the figures to take account of demographic factors (for example, the relatively young population of London), variations have persisted.”

The watchdog said in its report that it was committed to encouraging improvement and raising awareness of the MCA including the Deprivation of Liberty Safeguards.

“We will continue to listen to people’s experiences of the Safeguards, and consider how the MCA is being used by providers as part of our inspections of services for people aged 16 and above. We will make sure that our inspectors have the confidence and competence to recognise good practice, and will use our inspections and reports to encourage improvements in practice.”

It added that “where necessary to protect users of services”, it would take enforcement action to drive improvement. “This includes where we find that providers are failing to notify us of Deprivation of Liberty Safeguards applications and their outcomes.”