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What now for deprivations of liberty?

What will the effect of the postponement of the Liberty Protections Safeguards be on local authorities? Local Government Lawyer asked 50 adult social care lawyers for their views on the potential consequences.

Ombudsman raps council for decision only to assess high priority deprivation of liberty cases

The Local Government & Social Care Ombudsman (LGO) has criticised Staffordshire County Council’s decision not to assess thousands of vulnerable people who may have been unlawfully deprived of their liberty.

The LGO investigated Staffordshire’s decision in May 2016 to stop carrying out any assessments except those cases it classified as high priority.

“At the time it made the decision, it was aware it would not be complying with relevant legislation and statutory guidance, but made the decision because of a lack of finances,” the Ombudsman said following an investigation.

Staffordshire created its own guidance for ranking Deprivation of Liberty Safeguards (DoLS) requests into three priority bands. This was based on guidance issued by the Association of Directors of Adult Social Services (ADASS) regularly used by councils.

However, the county council used an adapted version meaning fewer requests were categorised as high priority.

At the end of June 2018, the council had a backlog of 3,033 DoLS requests for which it had not carried out the relevant assessments. Some dated back to August 2014.

Since May 2016 the council told the Ombudsman it has closed nearly 2,000 applications without assessment because a person had died before one could take place.

The LGO said Staffordshire should produce – within three months of the amendment to the Mental Capacity Act 2005 being finalised by Parliament, taking into account any changes to the law and Government guidance – an action plan for how it is going to deal with all incoming DoLS requests and the backlog of unassessed requests;

This action plan should include a mechanism for addressing those cases where the request is eventually not approved, and an unlawful deprivation of liberty has had a potentially harmful impact on that person.

The council should also review the action plan should there be any further changes to the law or Government guidance, the LGO added.

Michael King, Local Government and Social Care Ombudsman, said: “We issued a focus report in 2017 highlighting the problems we were seeing in this area, and although we believe Staffordshire’s response is at the extreme end of the way councils are dealing with DoLS issues, I would urge others to look at how they are carrying out assessments to ensure they comply with relevant law and guidance.

“Resource constraints can never be a legitimate reason for not carrying out the assessments required by law or statutory guidance. While councils may decide how to prioritise cases, it is not acceptable that the only way low and medium priority applications are resolved is because the people involved move away or die.”

Mr King added: “Because the council does not assess the majority of requests we simply do not know if there are people waiting in the backlog who are wrongly being deprived of their liberty when they actually have capacity, or when less restrictive options are available.

“Its decision may also have had an impact on those providing care – for example, when care providers need to liaise with the emergency services for someone they don’t have the right authorisations for.

“I now commend the council’s attempts to review its policies and tackle its backlog of requests and ask it to take on board my recommendations to ensure people are properly assessed before depriving them of their liberty.”

Responding to the LGO report, Staffordshire said it had seen a rise of more than 1,000% in requests for assessment in a three-year period since the Cheshire West test case.

Alan White, Deputy Leader of Staffordshire County Council and Cabinet member for Health, Care and Wellbeing, said: “The test case put a huge additional burden on every council and we, like others, have prioritised DoLS applications to ensure those assessed as being at the highest risk are properly supported.

“No-one has complained about the policy of prioritisation since its introduction, no individual has suffered injustice and no-one’s life or health has been put risk.”

Cllr White added: “The Government and the Association of Directors of Adult Social Services have backed a prioritising approach and it is generally accepted that the current DoLS legislation is no longer fit for purpose.

“Despite the finding we are not being asked to change what we do on a day-to-day basis until it’s time to implement the amendments to the Mental Capacity Act 2005, which will be next year at the earliest.”

He said: “Looking after the most vulnerable in our communities is a key concern and we will continue to focus upon it. We will also be lobbying Government so that the changes envisaged for this complex area are supported by appropriate funding.”