Ombudsman finds thousands without legal protection

A decision by Staffordshire County Council to stop assessing a majority of Deprivation of Liberty Safeguards (DoLS) requests ha left thousands of people with no or delayed access to proper legal protections. Those are the findings of the Local Government and Social Care Ombudsman.

Staffordshire council had decided not to carry out assessments of low and medium priority DoLS applications  received from care homes following the implementation of a system that created its own guidance for ranking requests.

According to the ombudsman, around 3,000 people had no or delayed access to the proper legal process that was designed to check whether a decision to deprive a person of their liberty is lawful.

“It is possible that some of the people stuck in the backlog for years should never have been deprived of their liberty,” the Ombudsman said.

A council responded  and defended the system, stressing that “no-one’s life or health” was put at risk. The new system was implemented in response to budgetary constraints.

In May 2016 Staffordshire council took the decision to stop carrying out assessments for DoLS requests that it classed as low or medium priority.

The decision was made in response to a “lack of financial resources” caused by a huge rise in the number of requests it had received from care homes following the Cheshire West ruling.

The council’s system was based on guidance published by ADASS (the Association of Directors of Adult Social Services), which aims to help local authorities identify high priority cases that need an urgent response.

Staffordshire adapted the guidance and altered the criteria, meaning fewer requests were categorised as high priority, meaning fewer cases met the required ‘high’ threshold for assessment.

The Ombudsman found that records demonstrated, since July 2017, Staffordshire had met or done better than the 21-day timescale for assessing standard requests which it had classed as high priority.

However, the Ombudsman found that the council had classed most requests as low or medium priority and these were not assessed.

The Ombudsman concluded that the council was at fault because it stopped assessing a majority of DoLS requests in response to financial pressures. It’s findings stated that the council had failed to comply with the legislation and guidance, the Mental Capacity Act (MCA) 2005 and DoLS code of practice.

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.

Even though it was acknowledged that the government is amending the MCA to overhaul the DoLS system, with a new set of safeguards, dubbed the Liberty Protection Safeguards, the Ombudsman reminded Staffordshire that the current law was still in place and said financial difficulties were no excuse for unlawful practice.

Staffordshire council have been asked to produce an action plan for how it would deal with all incoming DoLS requests and the backlog of unassessed DoLS requests.

Meanwhile the amendments to the Mental Capacity Bill are still progressing through Parliament with suggested changes made by the Lords as the bill passes back to the Commons. Given the current National situation there is no date yet for an implementation of the new Liberty Protection Safeguards.