With (curiously?) coincidental timing, given that the Mental Capacity (Amendment) Bill returns to the Commons tomorrow, 2 April, the Local Government & Social Care Ombudsman has just (1 April) released a report into Staffordshire County Council’s triaging of DoLS applications, where, since May 2016, the authority had not been carrying out assessment of low and medium priority applications, and had significantly delayed in the carrying out assessments in high priority cases. Whilst recognising the extent to which this situation was not necessarily of Staffordshire’s own making, the LGO found that the approach constituted fault causing injustice.
The report makes important reading at a number of levels, including as a snapshot of the pressures that local authorities are under and the decisions that they are having to take in consequence – as well as the real-life implications for the individuals concerned.
Whilst investigating another complaint, it came to the LGO’s attention that Staffordshire:
- decided in May 2016 not to carry out assessments for most of the DoLS requests it receives;
- was aware this does not comply with relevant legislation and statutory guidance;
- made the decision during an informal cabinet meeting, because of lack of financial resources; and
- had a backlog of 2,927 unassessed DoLS requests at the end of March 2018 (rising to 3,033 in June 2018, with the oldest assessed request dated 11 August 2014).
The LGO decided, of its own motion, that this may have caused an injustice to members of the public and therefore decided to investigate. Staffordshire noted that no one had complained about the policy, that its triage system ensured no harm to individuals was likely because it assessed those cases where there was a real possibility that a person may be deprived of their liberty inappropriately, and that in the unlikely event a person was deprived of their liberty inappropriately, they would have a court remedy and would probably be entitled to compensation. Importantly, the LGO decided to investigate individual complaints being brought “because the people who are likely to be affected are vulnerable, may not be aware of their rights to complain or go to court, and may not be able to complain either in their own right or through representatives.”
The LGO’s investigation found that Staffordshire was using a version of the ADASS screening tool to triage requests, but modified so that, in practice, fewer requests were categorised as high priority. The report outlines how Staffordshire were operating their triage policy, and noted that:
The Council says the priority tool “is not designed to exclude individuals but prioritise the order in which assessments are completed”. However, by deciding not to assess anything but high priority requests, excluding individuals is precisely what the Council is doing.
Staffordshire told the LGO that it would cost about £3.5 million to clear the backlog and deal with all of its incoming DoLS requests within statutory timescales, money which could only be found by reducing spending on other essential services.
Importantly, the LGO examined a sample of the 57 requests that Staffordshire had received in one week. Of these, 16 had been closed because the person had moved or died; 18 were in the unassessed backlog because they were of low or medium priority, 21 had been granted, and 2 were not granted (after 7 weeks and about 12 weeks) because the individuals concerned had regained capacity. In one case, the LGO had “significant concerns” about how the person was being deprived of their liberty and whether it was having a potentially detrimental effect on them. However, as their circumstances were now before the Court of Protection, the LGO could not investigate further. In percentage terms, this means that almost a third of the sample applications had not been considered beyond prioritising based on “the limited information provided by the managing authorities making the request.”
The LGO concluded that Staffordshire were at fault not complying with the legislation and guidance currently in place, causing a potential injustice to about 3,000 people who have had no or delayed access to the proper legal process designed to check that any decision to deprive a person of their liberty is: properly made, lawful; and implemented for only as long as necessary.
The LGO noted that
44. Applying the process properly would not change the outcome for most of the people affected, other than confirming that it is in their best interests to be deprived of liberty. However, it is possible that some of the people stuck in the backlog for years should never have been deprived of their liberty.
The LGO acknowledged the wider context, including the potential for the law to be changed by way of the Mental Capacity (Amendment) Bill, but noted that:
46. [..] the current legislation is still in force. At the time of writing, it is the main legal protection available to vulnerable people deprived of their liberty in care home settings. Resource constraints are not a legitimate reason for failing to carry out assessments required by law or statutory guidance. It is only legitimate for public bodies to deviate from relevant guidance where they have cogent reasons for doing so; a lack of money is not such a reason.
47. We do not criticise the approach of prioritising applications as suggested by ADASS and endorsed by the Government. We also recognise the effort the Council is making to tackle the incoming high priority applications. But it is not acceptable that the only way low and medium priority applications are resolved is because the people involved move away or die.
The LGO set out a series of recommendations, including an action plan to be produced within 3 months of the LPS scheme being finalised by Parliament, including “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.”
Its decision was therefore that:
The Council has acted with fault in deciding not to assess low and medium priority Deprivation of Liberty Safeguards applications. The Council is also taking too long to deal with urgent applications. This is causing a potential injustice to the thousands of people in its area who are being deprived of their liberty without the proper checks that the restrictions they are subject to are in their best interests.
It is important to note that not all local authorities do have a backlog, but it is difficult to escape the impression that many other local authorities will be reading this decision with the twin emotions of (1) simple frustration at the position; (2) relief that they were not the ones singled out in this report which could, with variations, have been written about many others in England & Wales.
Precisely how much society is still divided about the issue of deprivation of liberty can be seen by contrasting this report with the report in the Telegraph on 28 March suggesting that care homes and hospitals are “applying for hundreds more elderly people to be locked inside.” Putting aside the fact that this report fundamentally misunderstands the statistics upon which this assertion is based the fact remains that since the decision in Cheshire West the definition of “deprivation of liberty” is cast so wide as to catch within in it both those vigorously protesting and those actively manifesting contentment. Some may see this as crucial to ensure that there is a “periodic independent check on whether the arrangements made for [all people with impaired capacity] are in their best interests” (Cheshire West at para 57). Others might think that this means that this expansive definition means that we cannot now single out – and hence take all possible steps to eliminate – those situations where the state is either directly inflicting or complicit in private actors taking steps that overcome the will of individuals with impairments.
If the Government’s compromise in relation to the definition of deprivation of liberty – i.e. simply to have guidance in the Code to be regularly reviewed – is accepted, this important question will no doubt go back to the courts.
 Although in this appears to have understood that most of the responsibility would automatically be going to care homes, when this is not the case unless the local authorities/CCGs in question decide this is appropriate.
 The statistics actually relate to applications to the Court of Protection, and therefore include over 1,000 s.21A challenges to DoLS, as well as applications relating to deprivations of liberty in the community.