The dedicated social care team at law firm Royds Withy King outlines five key challenges facing the sector in 2020.
Roger Hargreaves has kindly given me permission to reproduce two more posts for a Facebook discussion group on the DoLS about the Mental Capacity (Amendment) Bill. I was going to stick them at the bottom of another post, but I think they deserve their a post of their own:
In support of the Mental Capacity (Amendment) Bill, the government notes in the Impact Assessment that “only about 4-8% of those assessed under DoLS are thought to have improved care as a result of the process. For over 90% the staff could not identify benefits.” The Briefing Note to the Lords then sets out one of the main reasons, that the stable door is being shut long after the horse has bolted: “DoLS require that the care home or hospital in which a person is deprived of liberty must apply to a local authority for authorisation. The Law Commission notes that…
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The process of assessing a person’s mental capacity is often misunderstood by social care practitioners as they seek to apply the principles of the Mental Capacity Act 2005 (MCA) and the lessons from case law. But help is at hand with the launch of a set of resources which aims to support practitioners improve their …
As the Law Commission publishes an interim statement on its reform proposals, Ben Troke and Rebecca Fitzpatrick set out how its initial plans have stripped back
Experts say the case could soon be talked of as having a similar impact to Cheshire West itself in terms of the role of the state and its obligations to 16- and 17-year-olds
, Deprivation of liberty, Mental Capacity Act
Cheshire West ruling has led to several AMHP teams facing surge in requests for Mental Health Act assessments, report finds
The fallout from a landmark Supreme Court ruling on deprivation of liberty is putting Approved Mental Health Professional services under ‘unprecedented pressure’, according to new research.
A report published by The College of Social Work’s AMHP network reveals that the March 2014 Supreme Court ruling, known as the ‘Cheshire West’ ruling, has triggered a surge in requests for Mental Health Act assessments at some local authorities. The ruling has also provoked anxieties among some practitioners over the interface between the Mental Capacity Act and Mental Health Act and when each framework should be applied for deprivation of liberty cases on psychiatric wards, the report found.
AMHPs are the group of mostly, but not exclusively, social workers who coordinate Mental Health Act assessments. One respondent said their AMHP team had seen “unprecedented” requests for Mental Health Act assessments in the wake of the ruling. A second respondent said their team had witnessed a “doubling” in assessments that has left AMHPs unable to “give the time they would otherwise have done to the people on their caseloads”.
The Supreme Court ruling
The Supreme Court ruling effectively lowered the threshold for what constitutes deprivation of liberty in care.
In doing so, it broadened the group of people in care homes, hospitals (including mental health wards) and other settings that are likely to require any deprivation of their liberty to be authorised under a legal framework.
Where a patient is in hospital to receive treatment for a mental disorder and lacks the capacity to consent to their care then, in principle, there are some cases where either a Deprivation of Liberty Safeguards (Dols) authorisation or detention under the Mental Health Act are options. Professionals must decide which legal framework is the most appropriate. Relevant factors include whether the person is objecting to the care arrangements or not.
The report, authored by Emad Lilo, the vice chair of the AMHP network, gathered feedback on the ruling’s impact from AMHPs working in 24 local authorities. It found that the ruling’s implications were most for local authorities where a large proportion of best interests assessors – specially trained staff who coordinate Dols cases – were drawn from their AMHP teams.
“The levels of activity have caused unprecedented pressure on already limited and stretched AMHP services across the country,” the report concluded.
“Notwithstanding this, there has been impressive response by services in working collaboratively and in partnerships with stakeholders including mental health trusts, higher education institutions and legal experts.”
The report makes nine recommendations. These include a recommendation that local authorities consider increasing their AMHP workforce capacity and for providers to put policies in place to deal with with circumstances where disagreement results in an inability to take a decision as to whether the Mental Health Act or Dols should be used to give legal authorisation to a deprivation of liberty.
Deprivation of liberty webinar
The report marks the latest evidence of the seismic impact the Cheshire West ruling has had on the health and care system. The judgement has also triggered a ten fold increase in Dols cases, with statutory timescales for assessments being breached as councils rack up case backlogs.
The government has asked the Law Commission to review the legal frameworks for authorising deprivation of liberty, including the Dols. Next week the Commission will publish its draft proposals for a new deprivation of liberty scheme. Tim Spencer-Lane, the lawyer leading on drafting the proposals, will present the draft framework at a free Community Care webinar on Tuesday 7 July. Sign-up here.
Councils have made just 1.6% of court applications they feel may be needed to ensure community care placements comply with landmark Supreme Court ruling, Community Care research finds
Unlawful deprivations of liberty in care placements are widespread, experts have warned, after research by Community Care found councils made just 1.6% of court applications they believe may be needed to comply with a landmark Supreme Court ruling.
Figures obtained from 110 of 152 English councils under the Freedom of Information Act revealed that local authorities made 286 applications to the Court of Protection to get legal authorisation for deprivations of liberty in community care placements, such as supported living, in 2014-15.
The total constitutes just 1.6% of the 17,829 applications the councils have identified could be needed to comply with the Supreme Court’s Cheshire West ruling of March 2014.
There are signs that the backlog of applications is not restricted to uncontentious care arrangements that are seen as lower priority. One local authority that identified 90 ‘high priority’ cases likely to require authorisation due to risk or conflict around the placement had only made eight applications.
The 17,829 figure given for potential deprivations of liberty in need of authorisation is also likely to be an underestimate. Several councils said they anticipated identifying more cases, some predicted hundreds more, and 10 councils had yet to carry out a scoping exercise.
‘Unlawful deprivation of liberty’
Our findings are the latest evidence of the huge pressure being placed on councils and social workers by a surge of deprivation of liberty cases triggered by the Cheshire West ruling.
Legal experts said they sympathised with the dilemmas facing council bosses and frontline staff in managing the ruling’s impact but warned that the low number of court applications amounted to “an acknowledgement of widespread unlawful deprivation of liberty”.
Local government leaders said they were committed to the principles of the safeguards and were prioritising risky cases but accused the government of failing to provide sufficient funding to help teams cope with a huge increase in demand.
The Association of Directors of Adult Social Services (Adass) estimate the ruling is likely to add £136m to annual deprivation of liberty costs for councils. Yet the government has only found £25m in one-off funding for 2015-16 to plug the gap in the short-term.
The government has also asked the Law Commission to table proposals to reform deprivation of liberty law across all settings. But this draft bill is not due until 2017 (Update: This afternoon the government brought forward the timetable for the Law Commission review. A draft bill will now be published in 2016), after which the government would have to publish legislation itself, have it passed by Parliament and then spend time preparing the social care and legal systems to implement it.
A Department of Health spokesperson said the government knew the “scale of the challenge” set by the Supreme Court ruling had led to difficulties in councils processing deprivation of liberty cases. The DH said the Law Commission project will help determine a way forward and in the interim councils should have a “proportionate plan” in place to manage the pressures.
The Supreme Court ruling effectively lowered the threshold for a deprivation of liberty in care.This meant many more people who lacked the capacity to consent to such arrangements required human rights protections.
Applications by providers to detain people in care homes or hospitals must be authorised by councils in England under the Deprivation of Liberty Safeguards (Dols). Dols cases rose ten-fold in the year after the Supreme Court ruling.
The figures we publish today reveal the ruling’s impact on deprivations of liberty in community settings, such as supported living or Shared Lives schemes. In these cases local authorities must apply to the Court of Protection for authorisation for any deprivation of liberty that is the responsibility of the state.
Preparing a court application involves a series of assessments and input from social workers, doctors and local authority legal teams (see box at foot of article). Social workers estimate that each case can take the equivalent of between two and four days dedicated time to put together depending on complexity.
The flood that failed to materialise
Following the Cheshire West ruling, research by the Association of Directors of Adult Social Services (Adass) predicted court applications would hit around 18,000 in 2014-15, up from about 150 the previous year. That prediction was a key driver for the Court of Protectionintroducing a streamlined process, known as Re X, last November in anticipation of a flood of cases.
Our figures show that the predicted surge has yet to materialise. Almost half of the 286 applications made in 2014-15, came from just 11 local authorities. There were 52 councils that made no court applications despite scoping that almost 6,000 might be needed between them.
The Re X process, set up to handle thousands of applications by allowing for uncontentious cases to be processed without the need for an oral hearing, was used around 176 times. And over a year after Cheshire West, 10 councils had not completed any scoping exercise on the judgement’s impact.
Factors behind the lack of applications
Social workers, providers, legal experts and local authority leaders identified a range of factors for the lack of court applications. These included that:
- Social work teams and council legal departments were struggling to handle the substantial extra demand on top of existing casework.
- Councils faced juggling preparation for new duties introduced under the Care Act from April 2015 alongside deprivation of liberty pressures.
- Some authorities prioritised clearing backlogs for Deprivation of Liberty Safeguards cases last year above community placements.
- Each application brings a £400 application fee and costs could be far more if a hearing is needed.
- Some council legal teams felt that the risk of litigation for not making applications was low.
- Social workers lacked confidence on the court application process due to some receiving minimal training.
‘A breach of fundamental human rights’
Steve Broach, a barrister at Monckton Chambers and specialist in disability law, said our findings were further evidence that “a very large number of people” were likely to be deprived of their liberty without legal authorisation.
“That is a breach of disabled people’s fundamental human rights. So everyone has to do better. We have to have a workable process, but we also need public authorities to make more applications and, in each and every case, where disabled people are deprived of their liberty it needs to be properly authorised.”
Lucy Series, a research associate at Cardiff Law School and an expert on mental capacity law, said the figures amounted to “an acknowledgement of widespread unlawful detention”.
Series said the situation was “unacceptable” and that the variation in application rates between councils was concerning. However, she said she sympathised with the position facing local authorities and recognised that some progress was being made in shining a much-needed spotlight on issues with care packages involving deprivations of liberty.
Sophy Miles, chair of the Law Society’s mental health and disability committee, said our findings meant a “substantial number” of people were being deprived of their liberty without authorisation.
“I’m sure there are lots of reasons why local authorities are not managing to make anywhere near the numbers of applications they feel might be needed. I have lots of sympathy for the situation they are in. However, it is concerning that even with a simplified procedure we are still seeing real difficulties in statutory bodies making court applications.”
Councils’ ‘committed to the principles’
Responding on behalf of Adass and the Local Government Association, Lorraine Currie, Adass lead for Dols, told Community Care that councils were committed to the principles of the Cheshire West ruling and said that the low numbers of court applications had to be seen alongside the pressures on councils to also process more than 100,000 extra Dols referrals.
“The cases that haven’t been brought to court yet should be ones triaged as relatively low priority because, for example, someone is settled and there is no conflict or disagreement about the placement,” she said.
“That’s not to say the safeguards for those people aren’t important but the shortage of resources provided for this work means local authorities are being forced to prioritise and contentious cases should be brought more quickly.”
However, best interests assessor and trainer Daisy Bogg said that, while there was a real issue with the capacity of teams, some councils weren’t taking their responsibilities to make applications seriously.
“Too many are basically sticking their fingers in their ears and hoping all of this will just go away and be superseded by something else,” she said. “Some local authorities are waiting for the Law Commission rather than applying the law.”
The strain on frontline staff
Bogg said frontline staff were feeling the strain: “We’re facing change after change after change. The deprivation of liberty pressure is huge and the disagreements between judges on interpreting the Supreme Court ruling really isn’t helping practitioners. The Care Act has come in as well. People are really trying hard. They are knackered. You can only stretch teams so far.”
One social worker said preserving the quality of assessments for Dols and court applications was becoming harder as teams were increasingly overworked.
“The government seem to have their head in the sand over this. The reliance on the outcome of the Law Commission review is frightening and naïve,” he said.
To further complicate matters, a Court of Appeal judgement issued yesterday raised question marks over the Re X process. The judgement hasn’t overturned the process butlegal experts said it has raised critical procedural issues for the Court of Protection to address.
Broach said, in the meantime, councils should not use the issues around Re X as an excuse to delay applications.
“Public bodies need to make the applications and it will be for the Court of Protection to resolve a fair process based on the issues raised by the guidance from the Court of Appeal,” he said.
A Department of Health spokesperson said: “We know the scale of the challenge to local authorities and health and care providers set by the Supreme Court has meant difficulties in processing potential deprivation of liberty cases in the timeframes they would wish.
“The public consultation by the Law Commission, to start in July, will carefully consider the views of all stakeholders and determine a way forward. In the interim we would urge providers and local authorities to make sure they have a proportionate plan to ensure individuals who stand to benefit from scrutiny by the Court do so in a timely manner and without detracting from other vital service provision.”
Applying to the Court of Protection: a lengthy process
Making a Court of Protection application is a complex process. The bulk of each application will be completed by a social worker, either a case carrying community social worker or a best interests assessor. However, input from doctors and a council’s solicitor will also be required. Much of this work will be completed on top of the professionals’ existing casework.
Elements that must be in the application include:
- An assessment of the person’s capacity and copy of their care plan
- A mental health assessment confirming the person’s unsoundness of mind
- The facts of the deprivation of liberty, including arrangements for supervision and control of the person
- A statement of why the local authority feels the deprivation of liberty is in the person’s best interests and the least restrictive option
- Evidence of consultation with other people who have an interest in the person’s welfare (such as friends or family)
- Evidence of consultation with the person
Local authorities must pay a fee of £400 for each application. If an application leads to a court hearing, councils will face additional costs.
The time an application takes to complete varies from case-to-case but social workers told Community Care they feel the court process often takes a lot longer than the Dols process, which involves six assessments.
‘………….By Ben Troke
Clarity on the law in relation to deprivation of liberty cannot come soon enough in the light of another landmark case, explains Ben Troke of law firm Browne Jacobson
This morning, the Court of Appeal handed down a landmark judgment on the ‘Re X’ process for authorising deprivations of liberty in the community.
This is the latest chapter in a story that started last March when, in the Cheshire West judgement, the Supreme Court clarified the definition of a deprivation of liberty as a person being “under continuous supervision and control and not free to leave” the place they were in, regardless of whether this arrangement would be appropriate or ‘normal’ for a person with those particular needs.
This made it obvious that there were tens or hundreds of thousands of people who are deprived of their liberty by the arrangements made by the state for their health and social care who lack capacity to consent to this. Their right to liberty and security under Article 5 of the European Convention on Human Rights rights would be breached unless a due legal process were in place to review and authorise this. Without this, people deprived of liberty unlawfully would have a right to compensation.
Colossal increase in cases
The result was a colossal increase in applications to the Deprivation of Liberty Safeguards (Dols) system, which exists to allow authorisation of a deprivation of liberty in a care home or hospital setting only. But arguably the greater challenge concerned cases in other settings, for example for people with dementia or learning disability in their own homes or supported living who have very intensive care packages likely to amount to being under continuous supervision and control and not being free to leave.
For those cases, outside the scope of Dols, the deprivation of liberty can only be lawfully reviewed and authorised by the Court of Protection. Following Cheshire West, no one knew how many applications to court will have to be made to authorise or review such placements, but it would certainly be tens of thousands.
The onus would on the public body responsible for the situation to bring the case to court – usually the local authority or CCG which commissions the care package that may amount to a deprivation of liberty.
In the light of Cheshire West, the court processes previously in place for handling these cases, geared and resourced to deal with a couple of hundred such cases a year, needed serious rethinking.
This is what Court of Protection president Sir James Munby was trying to achieve in proceedings, which came to be known as ‘Re X’, in which he pulled together a sample of relevant cases, and convened a hearing in June 2014. At this, many individual parties, as well as representatives from government, local government, the Law Society and other interested parties, addressed him on the kind of process that should be implemented.
In August and October 2014 Sir James Munby published judgments in which he set out his thinking on some of the key procedural and practical issues. He asserted, for example, that it was permissible for a process to review a deprivation of liberty without P (the person deprived) being a party to proceedings, and that while such cases must be reviewed by a judge, rather than a court official, this could be done on the papers, without a hearing, where there was no substantive dispute.
Reflecting these judgments, a new practice direction and Court of Protection form (COPDOL10) were published in November 2014, establishing the ‘Re X’ process along these lines, and a raft of judges around the country have been trained up, ready to deal with the expected flood of cases. There’s also been an amendment to the Court of Protection Rules, due into force on 1 July 2015, which requires the court to consider whether P’s participation can be secured and interests protected in another way, without being a party to proceedings.
Two of the individuals in the Re X cases went to the Court of Appeal arguing, among other things, that a process determining their deprivation of liberty without them being a party was not fair and breached their human rights. Others joined the appeal on related issues for a hearing in February 2015.
Each of the individual appellants had in fact been made a party to the proceedings to review their deprivation of liberty, and so had arguably no standing to say that they were adversely affected by the Re X approach. That said, when the court did hear argument about the issue of party status, there was a lot of doubt that the process could be fair if P was not to be joined as a party.
The judgment published this morning includes a fully reasoned contribution from each of the three judges, led by Lady Justice Black. The headlines are that:-
- Though sympathetic with the challenges facing Sir James Munby, all three judges were critical of the unorthodox approach taken to deal with the issues (for example, in paragraphs 58, 127 and 146 of the judgement).
- However, they concluded that the Court of Appeal had no jurisdiction to overturn the ‘Re X’ process, which should instead be properly challenged by judicial review against the practice direction (paragraph 50).
- Crucially, they all said that if they actually did have the jurisdiction to decide this, they would have said that P should be a party to any deprivation of liberty proceedings.
Why P should be a party
On the last point, Lady Justice Black said: “…it is not appropriate in my view for P’s participation in proceedings to turn in any way upon whether he wishes to participate, or indeed on whether he expresses an objection to the form of care that is being provided or proposed. There is too high a risk of slips ups in such a scheme. Article 5 requires greater protection from arbitrariness.
“I do not go so far as to say that no scheme in relation to deprivation of liberty would comply with Article 5 unless it provided for deprivation of liberty proceedings in which P was formally a party … [but] given the tools presently available in our domestic procedural law, I see no alternative to that being so in every case.” (paragraphs 103-104)
Lady Justice Gloster said that Sir James Munby’s conclusion that P need not be a party “is not consistent with fundamental principles of domestic law and does not provide the degree of protection required by the Convention or the Strasbourg jurisprudence” (paragraph 127). Lord Justice Moore-Bick said essentially the same thing at paragraph 171.
A fatally flawed process
Strictly, the views on the substantive issue of P’s party status is just non-binding as the court had already decided that it didn’t have jurisdiction to decide these issues in this appeal. But there’s no doubt that this leaves the current Re X process in confusion, if not fatally flawed.
There is already grave concern at the relative small take up of the Re X process, with only 200 or so applications made to date nationwide, and this reversal for attempts to streamline the process may not help encourage more engagement.
If P must be a party to any proceedings, with a litigation friend, and all the issues of access to representation and funding which that involves, this will inevitably be a lot less streamlined than Sir James Munby may have hoped, with consequences for delay, costs and the resources and time needed generally to get the huge number of cases through the process.
Law Commission review
Unfortunately, the ‘cavalry’ – the Law Commission proposals for reform of the whole system – is still some distance away. Though its consultation is due out in a few weeks on 7 July 2015, draft legislation is expected to be two years behind that in Summer 2017, and will take some time to implement, even if adopted. Though there may now be even more pressure to accelerate that timescale, with a debate in Parliament scheduled for tomorrow afternoon, it is hard to see any new system being in place sooner than 2018.
In the meantime, and despite the best attempts of some judges to pare back the impact of Cheshire West by finding ways to disapply it in community settings, we have the ongoing problem of widespread unlawful deprivation of liberty, potentially incurring significant liabilities and, for the community settings in particular where Dols cannot be used, the well intentioned attempt to produce a ‘streamlined’ route through the Court of Protection now in some confusion.
Worst of all words
We await any formal response from the Court of Protection or the Ministry of Justice with interest, but this is not just of academic interest. At the frontline we risk being left with the worst of all worlds – with individuals identified as having rights without the practical means for these to be readily implemented, and already stretched public bodies with obligations that cannot practically be met. The cavalry cannot arrive soon enough!
Ben Troke is a partner at the law firm Browne Jacobson and head of its health and social care advisory team. This article was originally published in Browne Jacobson’s health law bulletin.
Original post from Community Care
‘…………£25m falls well short of local authority demands but will help manage caseload pressures triggered by Cheshire West judgement