ADASS calls for cautious approach to implementing Supreme Court ruling on deprivation of liberty, but warns of potential for litigation

However, Rashpal Bishop, ADASS Vice President and Executive Director of Adults, Social Care and Health at Sandwell Council, also warned of potential litigation for unlawful deprivations of liberty from individuals who no longer need Deprivation of Liberty Safeguards (DoLS) authorisation.

She said councils may need additional resources in the immediate aftermath of what she described as a “seismic” change.

Bishop said ADASS would wait for guidance from the Department of Health and Social Care.

She added that there should be “a time of reflection to evaluate the full implications of the judgment before producing operational guidance”.

The Supreme Court earlier this week took the rare step of departing from the Cheshire West ruling, saying it was wrongly decided in many respects.

Lord Sales and Lady Simler, who gave the unanimous judgment, criticised the so-called ‘acid test’ set out in the 2014 ruling for deciding whether there was a deprivation of liberty as "crude" in its application.

They said the jurisprudence from the European Court of Human Rights called for a multi-factorial test looking at a wide range of factors instead.

However, three charities that intervened in the case described this week’s ruling as “the biggest rollback of disability rights in a generation”.

Bishop, who is also the ADASS Lead on Deprivation of Liberty Safeguards, said the DoLS system would continue to be needed but would in time focus on “a smaller group of people who are likely to be unhappy with their care arrangements and are actively objecting to their placement, or where the restrictions are extreme and there is a need to provide the legal safeguards and the ability to challenge their detention”.

She added: “Along with making sure people who are still deprived of their liberty have access to the right safeguards, we recognise that the other significant risk to organisations actually arises from those people who have been assessed and have authorisations in place prior to the judgment.

“These people may no longer need the DoLS authorisation and as such there is the potential to sue for unlawful deprivation of liberty. We will be working with the Department for Health and Social Care (DHSC) and other sector leaders to make sure care providers understand that whilst having a deprivation of liberty safeguard in place enables them to deprive a person of their liberty, this doesn’t need to be enforced if it isn’t necessary.”

ADASS’ Vice President said there would be “a period of time whilst we consider how to manage and review the large numbers of people whose authorisations are already in the system. We believe work on these cases can be paused whilst guidance is developed and agreed.”

She added that she remained optimistic that in time these changes would allow the refocusing of resources on those people most in need.

This was not only financial resources but the workforce resource of Best Interest Assessors who would be able in the future to share their expertise with the wider workforce.

Bishop said DoLS Leads and assessors had “gone above and beyond” since the decision in Cheshire West, working with exponential rises in numbers and no additional funding.

ADASS’ Vice President also noted that in terms of people’s rights, DoLS are just one legal framework and the Care Act, The Human Rights Act and the Mental Capacity Act “provide great protections and also empowerment for people with impaired mental capacity”.

She said the Supreme Court’s judgment this week had provided “a welcome reminder that the European convention focuses on the rights of all people to be treated with dignity and to have their voices heard and we welcome the focus on a concept of valid consent even where the person lacks decision specific capacity.”

Bishop added that the ruling provides the potential for reducing backlogs and reducing numbers of applications, but she suggested that this would “not be instantaneous but will be spread over time”.

In the immediate aftermath of the decision there will be a need for potentially even more resources to see councils through this period of transition, she argued.

“We recommend a cautious approach to implementation, that we wait for guidance from DHSC and a time of reflection to evaluate the full implications of the judgment before producing operational guidance.

“Urgent situations will always require an immediate response but there will need to be a period of time digesting such a complex judgment and such a seismic change and ensuring any processes are legally compliant and sustainable for the future operating model of DoLS.”  

Annie Ho, chair of the Policy, Ethics and Human Rights Committee of BASW, the professional association for social work and social workers, meanwhile said the Supreme Court’s judgment has “profound implications for how social workers protect and promote the rights of people when they lack capacity to make decisions about where they are accommodated for care and treatment arrangements”. 

She said: “It is unclear how adult social and health care organisations and professionals translate the judgement with immediate effect, in the current situation of substantial backlogs of DoLS applications from care homes and hospitals as well as Court of Protection applications for community deprivation of liberty authorisations in other settings. 

"It is also unclear what safeguards will now apply for many people and their families under this definition of deprivation of liberty as set out by the Supreme Court in AGNI."