A quick post on why Deprivation of Liberty Safeguards (DoLS) are a shared problem.
It is perhaps the most depressing part of recent social media comments I've read that describe DoLS as an industry within social care. This fails to recognise that Local Authorities (LAs) are responding to the 2014 Chester West & Chester Council v P judgment which found that LAs were applying DoLS (part of the 2005 Mental Capacity Act) incorrectly.
The response to this judgment is that councils up and down the country have had to scramble reassessments to ensure that their placements were within the law. Figures gathered by Andy McNicol show that 110 councils have identified almost 18,000 cases.
The essential problem is that judicial oversight is required because people's liberties have been compromised. Despite the attempts of Justice Mostyn to rule for a more 'common sense' approach to DoLS, that has been overruled by a higher court. Given where we are, the current consensus is that judicial oversight is better than the alternatives.
The difficulties that LAs have is that this additional cost comes out of current budgets and resources. There is no unlimited Whitehall pot to draw down funding for the assessments and the court costs. A one-off £25m has been found but this is inadequate given the scale of the problem. The time and the majority of the expense has to be found internally. This at a time when LAs grants are being squeezed considerably. Half a million people have stopped receiving social care support as a result of austerity in local government. Diverting money to resolve the DoLS crisis adds to that number.
There is no benefit to LAs for this situation as it creates a beggar my neighbour approach in deciding budget expenditure. To call it an industry ignores other service users who are seeing their services reduced or cut and it also ignores that LAs have had this additional workload thrust upon them.
The lack of court applications shown by Andy McNicol (286 applications out of 17,829 identified cases) is further evidence of this crisis. There is simply not the resources available to cope. An industry? LAs are being criticised for not making applications as Steve Broach does in his recent blog on the subject.
The author of the "industry" quote, Mark Neary, has an interesting blog on how DoLS assessments are being extended to assess supported living arrangements such as his son Steven by Hillingdon Council. This extends the provisions into the area that Lucy Series has argued should have been the case since 2005. My suspicion is that the broad concept of 'Wellbeing' in the 2014 Care Act has informed Hillingdon's decision here.
If you talk to everyone involved with DoLS, they'll tell you that we need to find a better way of protecting people's rights without the level of cost or legal requirements currently involved. Everyone will be in favour of a Goldilocks solution. Getting agreement on that Goldilocks solution however feels a long way away. How do you enforce a framework without recourse to the law? What happens if judicial oversight is re-enforced by a further Supreme Court judgment (a back to square one scenario)? What if you cannot separate DoLS from judicial oversight as trust in LAs are non-existent (see Mark Neary)?
This is a shared problem between service users, carers, local authorities and the legal system. If everyone acts in opposition to each other then hope for a reformed DoLS working will be pie in the sky. There is no magic framework that the Law Commission can provide or an unlimited cheque from Whitehall to fund judicial oversight or increase social care budgets to resolve this issue. The first step is to accept it is a shared problem. Only then can we move towards resolving it.
