The Ombudsman, DoLS and triaging – asking the impossible?

Alex Ruck Keene KC (Hon) examines a recent Ombudsman report following a complaint about the Deprivation of Liberty Safeguards authorisation process.

Old-fashioned novels sometimes have elaborate subtitles. I might slightly impertinently suggest that if such a novel was being written about the decision of the Local Government and Social Care Ombudsman in the complaint against Stockport Metropolitan Borough Council (23 009 985), it would have the subtitle “in which the Ombudsman recommends that a local authority does something legally impossible.” 

The complaint arose out of significant problems in the Deprivation of Liberty Safeguards (DoLS) authorisation process for a Mrs Y.  The story is summarised elegantly in the article about the case in the Local Government Lawyer, and I do not repeat it here. For present purposes, what I want to note is that one of the agreed actions was that “within three months, the Council will review its triaging procedures for DOLS requests to ensure they comply with the requirements of Schedule A1 to the Mental Capacity Act 2005.”

The small problem with this agreed action is that there is no ‘triaging’ procedure within Schedule A1 to the MCA 2005.  Schedule A1 was enacted on the basis that:

• In the event of a planned move into hospital or a care home, the standard authorisation procedure would and could be completed before the move took place (an authorisation being capable of taking effect up to 28 days after it is granted).
• In the event of a situation which could genuinely not be anticipated, and in which an urgent authorisation could therefore be in play, the process of considering whether to grant a standard authorisation would and could be completed before the urgent authorisation expired.

Schedule A1 is self-evidently law that does not match current realities, such that ‘triaging’ to identify which deprivations of liberty are ‘merely’ technical, and which are (or may be) causing harm to the person is required. Some might feel that it would be helpful if the Ombudsman (and, for that matter, CQC) explained how to square the law with current realities.

Alex Ruck Keene KC (Hon) is a barrister at 39 Essex Chambers. This article first appeared on his Mental Capacity Law and Policy blog.