Care Quality Commission calls for “substantial intervention” into Deprivation of Liberty Safeguards system
Too many people are waiting too long for a Deprivation of Liberty Safeguards authorisation, despite multiple examples of local authorities trying their best to reduce backlogs, the Care Quality Commission (CQC) has warned.
In a report published on Friday (25 October), the CQC highlighted “widespread concern” from local authorities that they are often “significantly under-resourced” to process increasing volumes of DoLS applications, as their funding has not increased in line with the number of people requiring assessments.
The watchdog found that in some local authorities, people had been waiting for an assessment for more than a year. It warned: “We are particularly worried about people’s human rights in these cases, as assessments may highlight that their care is more restrictive than it needs to be.”
The Deprivation of Liberty Safeguards (DoLS) were introduced under the Mental Capacity Act 2005, to protect the human rights of people aged 18 or over if they do not have the mental capacity to consent to their care arrangements and they need to be deprived of their liberty.
DoLS were due to be replaced by the Liberty Protection Safeguards (LPS). These would have extended the scheme to cover 16 and 17-year-olds, applied the safeguards to additional settings, including people’s homes and supported living services, and given responsibility for issuing authorisations to NHS trusts and integrated care boards, along with local authorities.
However, in April 2023, the then government announced that the implementation of LPS would be delayed “beyond the life of this parliament”.
The CQC noted: “At present, it is unclear when or if the LPS reforms will be implemented. We are keen to establish a dialogue with the new government about this.”
NHS England data shows that the number of applications completed by local authorities has increased over the last five years by an average of 9% each year.
In its assessments of local authorities, the CQC observed multiple examples of supervisory bodies trying their best to reduce backlogs and ensure sustainable improvement.
It said: “For example, many local authorities adopt risk-based approaches and tools to prioritise applications. We also saw local authorities recruiting and training more best interests assessors.”
However, the report warned that while DoLS backlogs decreased by 2% in 2023/24, the number of people waiting for an authorisation “remains significant”.
Further, the CQC outlined concern that the use of prioritisation tools may result in some groups of people, such as people with a learning disability or living with dementia, being disproportionately affected by delays in processing DoLS applications.
It said: “A respondent from the National DoLS Leads Network noted that while these people usually meet the requirements for DoLS, they often do not meet the prioritisation criteria and may be 'overlooked'.”
The report observed that in some services, a lack of “person-centred planning” and staffing issues means there are blanket restrictions - depriving all residents of their liberty despite not being necessary for everyone.
Several local authorities told the watchdog that they felt more challenges to DoLS authorisations have been brought to the Court of Protection in recent years.
While observing that it is “positive” people are aware of their rights to challenge a deprivation of liberty and are supported to do so, the CQC acknowledged that this can be a “time-consuming process” for councils, which has a further impact on their resources.
The CQC concluded: “With the volume of applications continuing to increase, the current system means that local authorities remain the only organisations able to process them, and many have told us they do not have sufficient resources to cope with the demand.
“After a decade of chronic and widely documented issues, urgent action is required to ensure the system does not continue to fail people in the future.”
Based on recommendations from supervisory bodies, the report stated that “increased funding, an updated Code of Practice, better training and regulatory oversight” are factors which could help to improve outcomes for people, while waiting for the LPS to be implemented.
A Department of Health and Social Care spokesperson said: “We recognise the vital importance of protecting the rights of people who lack mental capacity to consent to their care arrangements, and we are determined to tackle the challenges facing adult social care and to stabilise the system.
“In addressing these challenges, we will engage a wide range of adult social care stakeholders including people with lived experience of care and their families.”
Lottie Winson
