Care Quality Commission warns delays in implementing Liberty Protection Safeguards mean “ongoing problems” likely to continue

The Care Quality Commission (CQC) has warned of “ongoing problems” with the current Deprivation of Liberty Safeguards system, and has said that problems with people’s access to care in England is an “enduring issue” in its latest State of Care report.

State of Care is the CQC’s annual assessment of health care and social care in England. The report evaluates access to care, quality of care, inequalities, the health and care workforce, the Deprivation of Liberty Safeguards and systems.

On the Deprivation of Liberty Safeguards (DoLS), the report noted that in 2022/23, the number of applications to deprive a person of their liberty increased to over 300,000, with only 19% of standard applications completed within the statutory 21-day timeframe.

The CQC noted that “ongoing problems” with the current system had left many people who are in vulnerable circumstances without legal protection for extended periods, and that delays in implementing the Liberty Protection Safeguards meant these challenges were “likely to continue”.

The Liberty Protection Safeguards (LPS) were introduced in the Mental Capacity (Amendment) Act 2019 and were due to replace the current DoLS system.

The key proposals were as follows:

• It would apply to more people, including 16- and 17-year-olds and people in hospitals, supported living and their own home.
• ‘Responsible Bodies’ could authorise the arrangements without a court order.
• Local authorities and NHS bodies would be ‘Responsible Bodies’, tasked with organising the assessments needed and ensuring there is sufficient evidence to justify a case for deprivation of liberty.
• There would be an extension of rights to an Independent Mental Capacity Advocate (IMA) and non-means tested legal aid for challenging an authorisation where a person was being deprived of their liberty outside of hospitals and care homes.
• There would be a duty to consult those caring for the person and those interested in the person’s welfare before a deprivation of liberty occurs.

However, On 5 April 2023, the Government announced its decision to delay the implementation of the LPS ‘beyond the life of this Parliament’.

Commenting on this delay, the CQC said in its report: “We are concerned about what this means for people being potentially deprived of their liberty unlawfully, for their family and friends, and for providers and local authorities.

“Disabled people and older people are more likely to require the safeguards offered by DoLS and will therefore be disproportionately affected by the decision to delay LPS.”

Data from NHS England revealed that in 2022/23, the average DoLS application took 156 days - over 7 times the statutory timeframe of 21 days. Over 39,000 people had been waiting for longer than a year for their application to be completed as of 31 March 2023, the report noted.

The CQC said that to tackle resourcing issues, some local authorities were carrying out remote assessments in cases where there were no concerns. However, a member of its Expert Advisory Group “questioned the suitability” of this type of assessment, especially for people who have conditions such as advanced dementia, which may affect communication.

The CQC warned that it continues to see that some providers have a “limited understanding of the DoLS framework”, adding that staff do not always implement the conditions attached to a DoLS authorisation.

According to members of its advisory group, some local authorities have “held off implementing support to process DoLS applications, instead waiting for the new Liberty Protection Safeguard framework”, the report noted.

The CQC welcomed the Government’s announcement of an updated Mental Capacity Act Code of Practice, adding: “improved understanding of the Act is an important step that will also help to implement the Liberty Protection Safeguards in the future”.

Looking at access to care, the report found that getting access to services remains a “fundamental problem”, particularly for people with protected equality characteristics.

Further, “insufficient capacity” in adult social care is continuing to contribute to delays in discharging people from hospital.

The CQC flagged the quality of mental health services as an “ongoing area of concern”, noting that recruitment and retention of staff is still one of the biggest challenges for the sector.

The full report can be seen here.

Lottie Winson