Kent County Council has said it believes it is not possible to comply with a recommendation made by the Local Government and Social Care Ombudsman to process all Deprivation of Liberty Safeguard (DoLS) assessments in a timely manner.
The Ombudsman investigated the council after receiving a complaint from a man whose wife was placed in a care home against her wishes following a hospital stay.
The investigation found that Kent did not complete an official assessment under DoLS until six weeks after it chose to place her in a care home.
The woman was eventually moved to a nursing home at the end of November 2019 and returned home with a care package just before Christmas 2019. She became unwell and died at home in April 2020.
The Ombudsman's investigation found the council did not do enough to communicate with the man during the process or give him sufficient opportunity to express his views. The investigation also found the council did not have sufficient regard to the couple's right to a private and family life under the Human Rights Act, when deciding on the best care for the woman, and did not consider the least restrictive option available for her care.
Michael King, Local Government and Social Care Ombudsman, said because the council did not refer the dispute to the Court of Protection, "the couple were also denied the opportunity to have their case considered by an independent body".
"I have previously reported about another council's backlog of DoLS cases, and it appears that these problems are not isolated to these two council areas.
Mr King added: "I am concerned that the council has told me it has a long backlog of DoLS applications so there may be other people in the county being detained against their wishes and without the proper authorisations in place. The council has agreed to a number recommendations I have made to review its practices to ensure the proper authorisations are in place within the legal timeframes. But it still needs to agree to carry out a review of past cases and ensure all future cases are dealt with appropriately."
In response, Richard Smith, Kent County Council (KCC) Corporate Director of Adult Social Care and Health said: "As always, our priority is to ensure that vulnerable people in Kent are well cared for in a safe environment where all their needs are met, and we take this responsibility very seriously. The Deprivation of Liberty Safeguards (DoLS) were originally designed with a small number of people in mind and were not intended to deal efficiently with the current high levels of demand, which is an area of concern for local authorities nationally."
Kent compares positively to other similar size councils in achieving the requirements for DoLS applications and, through significant investment, is continuing to improve, according to Mr Smith.
"However," he added, "we believe that it is not possible for us to comply with the recommendations to 'ensure all current and future requests for standard authorisations are completed within prescribed timescales' and 'to provide written evidence showing that we have monitored all requests for standard authorisations post-dating the final report and completed them within the legal timeframes described in the report'.
"Whilst some of the delivery of DoLS assessments is within our control, much of it is not. The resources needed, from both within the council (Best Interest Assessors) and externally (doctors), to achieve both recommendations simultaneously, is not available nationally and attempting to achieve them would place a significant burden on an already fragile system."
Mr Smith added: "It is extremely disappointing that the long-awaited Code of Practice for Liberty Protection Safeguards, originally due to go live in October 2020 and which would help to solve these issues, is yet to be published by government and is now delayed until April 2022. We will, therefore, be lobbying government in the coming months to move this forward as the current system is unsustainable and failing all involved."
The Ombudsman's recommendations will be formally debated in line with the legislation at a council committee in the near future.
Outside of the recommendations relating to the outstanding standard authorisations, Kent has agreed to apologise to the man and pay him £500 for his distress.
It has also agreed to make a number of changes to its DoLS procedures and Care Act assessment procedures to ensure they meet standards.