LocalGovernmentLawyer Adult Social Care 2017 5 Cheshire West – whether by councils or the court – had been successful. One respondent described “a poor attempt at triaging and prioritising”. Another said the overall response had been “a poor one”, adding that “the lack of clarity and organisation from the court service through the case law and process has limited the authority with which lawyers can advise the client team”. This was no criticism, merely a comment, they insisted, pointing out that “the lack of adequate funding/recognition from central government has severely hampered the best efforts of all involved with this area of work”. This issue of funding prompted four local authorities – Nottinghamshire County Council, the London Borough of Richmond-upon-Thames, Shropshire Council and Liverpool City Council – to bring a legal challenge over government finance for implementing DoLS post- Cheshire West. The claimants told the High Court that the financial shortfall suffered by councils across the country was somewhere between one third of a billion pounds and two thirds of a billion pounds, and contended that the Government should meet that shortfall. They sought a declaration that, by his failure to meet those costs, the Health Secretary had created an unacceptable risk of illegality and was in breach of a policy known as the "New Burdens Doctrine". They also sought a mandatory order requiring the minister to remove that risk and to comply with that doctrine. Mr Justice Garnham, however, agreed with the defendant ministers, finding amongst other things that the claim was brought out of time (and there was no need to extend time), and that the authorities had not established that there was a principle of public law that "when public authorities establish a system of safeguards they are under a duty to ensure the system does not give rise to an unlawful risk of illegality”. The judge also found that the evidence did not come close to establishing that any of the claimant councils was unable to meet the costs of complying with its duties under the DoLS regime, and there had been no breach of the New Burdens Doctrine. (For a summary of the case from 11KBW’s James Goudie QC, click here) Two months before the High Court judgment, the Law Commission noted in its final report, Mental Capacity and Deprivation of Liberty, how many consultees, particularly NHS bodies and local authorities, had “pointed to the practical and financial impact of Cheshire West, such as the increasing backlog of cases, referrals for authorisation being left unassessed, the legal timescales for authorisations being frequently breached and shortages of people qualified to perform roles under the DoLS provisions”. The Government’s law reform advisory body concluded that the DoLS were failing those they were designed to protect and should be replaced “right away” with a new scheme, to be called the Liberty Protection Safeguards. “Article 5 rights must be practical and effective,” the Law Commission argued. “It is not acceptable to continue with the current system under which many people’s rights have become theoretical and illusory.” Of course we will have to wait and see whether its Fig 1