Staffordshire County Council’s decision not to assess some vulnerable people who may have been unlawfully deprived of their liberty has been criticised in an investigation by the Local Government and Social Care Ombudsman.
Certain assessments need to be carried out before depriving someone of their liberty can be authorised, if it is believed this is in the person’s best interests and necessary to protect them from harm. But in May 2016, Staffordshire County Council decided it would stop carrying out any assessments except those cases it classified as high priority.
At the time it made the decision, it was aware it would not be complying with relevant legislation and statutory guidance, but made the decision because of a lack of finances.
The council created its own guidance for ranking Deprivation of Liberty Safeguards (DoLS) requests into three priority bands. This was based on guidance issued by the Association of Directors of Adult Social Services (ADASS) regularly used by councils, but Staffordshire used an adapted version meaning fewer requests were categorised as high priority.
At the end of June 2018, the council had a backlog of 3,033 DoLS requests for which it had not carried out the relevant assessments, with some dating back to August 2014. Without the correct authorisation in place, there is a risk that people are being unlawfully deprived of their liberty.
Since May 2016 the council told the Ombudsman it has closed nearly 2,000 applications without assessment because a person had died before one could take place.
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.
“Because the council does not assess the majority of requests we simply do not know if there are people waiting in the backlog who are wrongly being deprived of their liberty when they actually have capacity, or when less restrictive options are available.
“Its decision may also have had an impact on those providing care – for example, when care providers need to liaise with the emergency services for someone they don’t have the right authorisations for.
“I now commend the council’s attempts to review its policies and tackle its backlog of requests and ask it to take on board my recommendations to ensure people are properly assessed before depriving them of their liberty.”
The Ombudsman decided to investigate this matter after investigating a complaint during which the council’s decision to focus the assessment process came to light.
In certain cases, the Ombudsman can investigate under the Local Government Act 1974, where it believes other people may have been caused an injustice. In this case 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 Local Government and Social Care Ombudsman’s role is to remedy injustice and share learning from investigations to help improve public, and adult social care, services. It also has the power to make recommendations to improve a council’s processes for the wider public. In this case, the council should produce an action plan for how it is going to deal with all incoming DoLS requests and the backlog of unassessed requests.
It should produce the action plan within three months of the amendment to the Mental Capacity Act 2005 being finalised by Parliament, taking into account any changes to the law and Government guidance.
The action plan should include 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.
The council should also review the action plan should there be any further changes to the law or Government guidance.