Related Sector: Health & Social Care
19th March 2024 marks the 10 year anniversary of the announcement of the judgement in P v Cheshire West & Chester Council & Another and P&Q v Surrey County Council (2014) UKSC 19 and the formulation of the Supreme Court’s “acid test” for what was, and what was not, a deprivation of liberty.
The impact of the acid test was, and remains, huge. By clarifying and broadening the legal definition of “deprivation of liberty” it shifted the landscape and threw greater emphasis on the necessity of protecting an individual’s fundamental human rights, particularly their Right to Liberty and Security of Person.
Unfortunately, this wide-ranging judgment, which was intended to support vulnerable individuals and reinforce the importance of protecting their rights has resulted in a considerable backlog in DoLS assessments which continues to increase, meaning that, according to NHS Digital, between 1st April 2022 and 31st March 2023 (2022-23), only 19% of all requests for a Standard Authorisation were being decided within the legally required 21 days.
This is not due to a lack of effort by those working in the DoLS system. In 2022-23 more applications than ever were completed within the 21 day time frame required by Regulation 13(1) of The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessment and Ordinary Residence) Regulations 2008 (known, for the sake of brevity, as “The DoLS Regulations”). However, the percentage of DoLS authorisations or refusals being decided within Regulation 13(1)’s time frame, has decreased over the last couple of years. Thus, resulting in a growing backlog - currently estimated to be 126,100 cases (2% more than the previous year).
The number of applications grows every year. In the 2022-23, there were an estimated 300,765 applications, an increase of 11% on the previous year. Between 2014-15 to 2019-20, the yearly growth rate was 14% each year.
The majority (56% - 161,924) of all applications for Standard Authorisations are not granted. Most, but not all, of these refusals are due to a change in circumstances, such as the person recovering and leaving the hospital or care home they are in. However, in 2022-23, 49,325 people died while waiting for their application to be assessed. Many of those had been waiting for longer than 21 days and so died while being unlawfully deprived of their liberty. 3% (4857) of all refusals occurred because one or more of the DoLS requirements was not met. As the average processing time between a request for the Standard Authorisation being received by the Supervisory Body and the Authorisation either being granted or refused currently stands at 156 days, a large proportion of that 3%, many of whom should never have been deprived of their liberty in the first place, are unlawfully detained for a significant period. Those who are in the 3% have 6 years from the date of their detention, to bring a court case for damages for unlawful detention. If they were to form into groups and launched a successful class action, local authorities across England and Wales could be forced to pay out considerable sums in compensation (case law would suggest around £180 per day of unlawful detention per person), as well as improve their DoLS response.
In their report, “A hidden crisis: Older people of deprivation of liberty in care homes”, Age UK found that although all the local authorities involved in their research had a good understanding of DoLS, in some cases they did not appear to view depriving an older person of their liberty without a DoLS authorisation in place, as anything more than a procedural breach of human rights and “not that big of a deal”, provided those people are kept safe. Perhaps this is because authorisation refusals are relatively uncommon and, in most cases, not a lot seems to happen irrespective of any delay or discharge.
As Age UK observed, this is a simplistic paternalistic approach, which prioritises safety over freedom with no legal basis to it at all. What is more concerning is that these views were apparently expressed by employees of public authorities, and also public servants. They of all people should be aware of the provisions of the European Convention on Human Rights (ECHR).
Article 5(1)(e) ECHR stipulates that everyone has the right to liberty and security of person and that no-one should be deprived of that right, except in a series of highly specialised cases and only then in accordance with a procedure prescribed by law. One such case is where a person is “of unsound mind” (mentally ill) and one such procedure, which includes an assessment for mental illness, is DoLS. “Where a person needs to be kept safe” is not, on its own, a legally recognised reason for depriving someone of their liberty without complying with due legal process. This unlawful approach has similar hallmarks to that taken by Bournewood Hospital utilising the “doctrine of necessity” to detain HL in HL v United Kingdom 45508/99 (2004) ECHR 471. This was the case which led to the implementation of DoLS in the first place. In 2004, the European Court of Human Rights found that there was no place for a common law doctrine in modern jurisprudence. There is no place for a “doctrine of safety” now, especially where that “doctrine” is espoused by a professional involved in the decision to detain and so hardly impartial.
There is an argument allied to this which we at Bond Solon have heard, but which does not appear in the Age UK report. Some professionals argue that if the detained person felt so strongly about their detention, they could always begin Court of Protection (CoP) proceedings under s21A Mental Capacity Act (2005) (MCA). This fails to take account of how such actions will be funded. To instruct a solicitor, many detained people would need to obtain “legal aid”. Legal aid to challenge Standard Authorisations is not means tested and so, essentially, available to anyone subject to such an authorisation who is unhappy with it. Legal aid to challenge Urgent Authorisations, or detention in that period between an Urgent Authorisation coming to an end (at most 14 days after it was first granted) and a Standard Authorisation coming to pass, is means tested. The current upper civil legal aid threshold for capital is £11,000, meaning that anyone with savings or other investments, such as property, above that threshold is unlikely to be eligible for legal aid and so must fund any challenge themselves. For most people subject to an Urgent Authorisation this is completely impossible.
The Joint Committee on Human Rights wrote to the Minister of State for Social Care as there were concerns about:
- The problems with legal aid funding.
- The delays to the implementation of LPS.
- The delays in the processing and completing of DoLS applications.
- Adequate human rights training for those working in the system (now evidenced further by Age UK’s report).
The Minister of State responded to say that:
- The Legal Aid Agency would not be altering its stance on legal aid for DoLS cases.
- The government still accepted the need for change.
- We should expect a revised code of practice to the MCA and DoLS.
- Social Work England and the DHSC would be launching a consultation on reforming the standards for the Best Interest Assessor qualification.
Although we have not seen any evidence of a revised code of practice which incorporates both DoLS and the MCA, there has been a consultation on reforming the standards for the BIA qualification. From the consultation it seems very clear that the intention is to make the qualification more onerous, perhaps on a par with that undertaken by AMHPs. If this does come to pass, local authorities face additional expense in getting their staff qualified as BIAs. It will also be difficult to find people who are prepared to, as AMHPs do, devote themselves to full-time training for an extended period of time.
On the subject of expense, a further argument often advanced is that local authorities simply cannot afford to meet their legal obligations in respect of DoLS. In March 2019, the Local Government and Social Care Ombudsman published their findings following an investigation into Staffordshire County Council’s, then, policy of not carrying out assessments of low and medium priority. Their prioritisation was based on the ADASS Screening Tool formulated in the wake of Cheshire West, but altered slightly so in practice fewer requests came out as high priority. The policy had been in place since May 2016, had been implemented to save money and had resulted in a backlog of 2,927 unassessed DoLS requests. The Ombudsman acknowledged that the Council was struggling with severe financial constraints but made it clear that the legislation is in force to provide legal protection to some of the most vulnerable adults in our society. They went on to observe that:
“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.”
In early 2023, the LGSCO carried out similar investigation into failures by Surrey County Council, who have a population of 1.21 million, over 45,000 of whom are 85 or over. Although the Ombudsman acknowledged the severe resource constraints faced by the Council, they found that this was not an excuse for having the highest backlog in England (and a mean duration for the completion of DoLS assessments of 345 days). Surrey County Council accepted the finding and are now taking steps to recruit more staff and reduce their backlog. It would be unrealistic to expect that the LGSCO’s investigations in this area have now come to an end.
It was, of course, expected that the current situation would be alleviated somewhat by the introduction of the Liberty Protection Safeguards (LPS). They are intended to be more streamlined and to share the burden of assessments with NHS Trusts and ICBs. The government has decided not to implement LPS “in the lifetime of this parliament”, meaning, in effect, that we all must continue to work with DoLS for the foreseeable future. Whether LPS would achieve all that is promised is a topic of some debate but one which might be picked up again when any new government decides how DoLS should best be reformed. This is hardly going to be first business for them, nor should we expect it to be.
Over the next few months, Sue Inker, our Subject Matter Expert in mental capacity law will be discussing how local authorities should respond to these challenges with Max Duddles, the author of this article and our Subject Matter Expert in mental health law.
For now, we want to acknowledge the major impact that 19th March 2014 had on the Deprivation of Liberty Safeguards and therefore the human rights of some of the most vulnerable people in our society.
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