Councils rapped for telling care providers to delay deprivation of liberty applications

The Care Quality Commission has expressed concern that some local authorities may be advising care providers to “delay, stagger or minimise” applications they are making under the Deprivation of Liberty Safeguards (DoLS).

The watchdog warned that this would increase the likelihood of people being unlawfully deprived of their liberty.

The warning came in the CQC’s sixth annual monitoring report on how hospitals and care homes in England are using the DoLS, which protect the rights of people who are deprived of their liberty so that they can be given necessary care and treatment.

The annual report revealed that there had been a tenfold increase in applications from providers to deprive individuals of their liberty, from 13,715 in the year ending March 2014 to 137,540 by March 2015. This followed the Supreme Court Cheshire West ruling in March 2014.

The CQC also said there was still a significant backlog of applications received by local authorities, with 56,835 applications where the outcome was not decided by March 2015, compared with 359 across the previous year.

“The cause of this increase in the backlog is largely a change in the interpretation of the law rather than a change in the way care is being provided. It does not necessarily mean that people are any more or less at risk of receiving good or poor care,” the regulator noted.

“However, the backlog does mean that there is a delay in people who may be deprived of their liberty receiving the independent assessments, advocacy and representation provided by local authorities.”

The regulator did, however, acknowledge that local authorities and organisations such as the Association of Directors of Adult Social Services had taken action in response to the rise in the backlog.

The CQC meanwhile warned that its inspection regime showed continued variation between providers in their understanding and implementation of the DoLS regime. Staff awareness, understanding and training of the safeguards varied, it said, despite the Supreme Court judgment clarifying the meaning of ‘deprivation of liberty’.

The regulator also criticised some providers for not having up-to-date policies in place, and not implementing processes consistently.

“We are continuing to find examples where providers may be unlawfully depriving people of their liberty,” it said.

The CQC reported that there was continued evidence of low notifications to the Commission about the outcomes of deprivation of liberty applications. It was a legal requirement for providers to inform the CQC of DoLS applications and their outcome together, when the outcome is known, it pointed out.

The regulator set out a range of recommendations for providers and local authorities, and details the actions it proposes to take (see below).

The CQC said it welcomed the Law Commission’s current review of the DoLS and would continue to engage with the law reform advisory body on this project. The regulator said it hoped the Law Commission’s final proposals would simplify the system.

THE CQC’S RECOMMENDATIONS AND ACTIONS

What providers must do

• Take action to meet the requirements of the Mental Capacity Act, in line with the Codes of Practice for it and the Deprivation of Liberty Safeguards. This includes making sure that their staff understand the MCA including the Deprivation of Liberty Safeguards, have access to training, consistently undertake capacity assessments where it is appropriate for them to do so and apply best interest decision-making processes for people who do not have capacity.
• Make sure that they have in place clear policies and processes relating to the Deprivation of Liberty Safeguards.
• Continue to request authorisations when they think that people may need to be deprived of their liberty, while always seeking less restrictive options to meet individual needs.
• Make sure that they notify CQC about Deprivation of Liberty Safeguards authorisation applications and their outcome (when the outcome is known), so that the CQC can fulfil its monitoring role.

The CQC also recommends that

• Local authorities learn from good practice initiatives being put in place by other local authorities, through the Association of Directors of Adult Social Services (ADASS) regional leads programme, and to continue to use available tools such as those created by ADASS.
• Local authorities must not advise providers to delay or inappropriately minimise their applications as this increases the likelihood of people being unlawfully deprived of their liberty.

What the CQC will do

• Clearly define what ‘good’ looks like in relation to the Deprivation of Liberty Safeguards.
• Continue to use its inspections and reports to encourage improvements in practice.
• Continue to challenge providers if they are not meeting legislative requirements, which may include taking enforcement action.
• Continue to ensure that its inspectors are able to recognise good and poor practice, and to improve its own reporting and recording about the MCA, including the Deprivation of Liberty Safeguards.
• Continue its own work and engage with stakeholders to improve the notifications process for providers.
• Continue to engage with the Law Commission as they carry out their review.

Source: Monitoring the Deprivation of Liberty Safeguards in 2014/15 published by the Care Quality Commission.