Health: Deprivation of Liberty Safeguards

Lord Bradley Excerpts

Monday 16th March 2015 Lords Chamber

[Lord Bradley (Lab)]

My Lords, I congratulate the noble Baroness, Lady Finlay of Llandaff, on securing this short debate and on her excellent speech on the issues of deprivation of liberty safeguards and healthcare, particularly in respect of hospices and homecare support. I also congratulate the noble and learned Lord, Lord Hope, the noble Baroness, Lady Hollins, and the noble Lord, Lord Howard, on their very wise and detailed contributions, particularly around hospice care. This debate effectively complements the debate last week on the excellent Select Committee report on the Mental Capacity Act 2005, when the noble Baroness, Lady Finlay, rightly stated that the laudable principles of the Act have clearly not been realised as was hoped.

The House of Lords Select Committee made nine recommendations that related to deprivation of liberty and the Government responded to them in June 2014. I will return to one or two of them shortly but I want to concentrate in the limited time available on some of the consequences of the Supreme Court judgment. In March 2014 the UK Supreme Court handed down two judgments, which are commonly known as the Cheshire West judgment. As the noble and learned Lord, Lord Hope, has eloquently explained, these judgments outlined the test that must be used in the determination of whether arrangements made for the care and treatment of an individual lacking capacity to consent amount to a deprivation of liberty. As the British Medical Association commented, in its judgment the court said that:

“The benign purposes of care arrangements are not relevant to the question of whether a person was deprived of liberty … What would be a deprivation of liberty for a non-disabled person is also a deprivation for a disabled person … The key feature is whether the person concerned is under continuous supervision and is not free to leave … The person’s compliance or lack of objection, the purpose of the placement or its relative normality are immaterial”.

As a consequence of this judgment there has been a significant increase in the number of DoLS applications received by local councils, as we have already heard. Government figures show that there were 13,000 DoLS applications in 2013-14. Following the judgment, there have been 86,500 applications so far this year, according to the Association of Directors of Social Services. The number of applications has increased every quarter. Further, as ADASS has stated, as well as significant cost implications, this places great strain on the ability of staff and local councils to meet their statutory duties. Most importantly, it makes it harder to meet the needs and protect the best interests of the most vulnerable people in society in a timely way.

I shall illustrate this further. In my council, Manchester City Council, there has been a fivefold increase in DoLS applications since the Cheshire West judgment. In 2013-14, there were 236 applications; this year to date, there have been 1,147 applications. There is also a backlog of 200 cases which the council is working through, having recruited additional assessment capacity. The cost of a straightforward application is £900 in court costs, and court costs will be significantly higher for disputed applications. Therefore, Manchester is experiencing significant cost pressures in court fees and assessment costs to meet the needs of the most vulnerable people and their families. ADASS has suggested that each case needs 10 hours of assessment time. Manchester agrees with that. For Manchester, it equates to 10 full-time equivalent practitioners to deal with the additional assessment requirements following the Supreme Court judgment. To aggregate this, and against a backdrop of considerable strain on resources in adult social care, it is estimated that the cost to councils is in the region of £98 million over and above the current funding for DoLS activity in 2014-15. Furthermore, the BMA has stated that the authorisation for DoLS is cumbersome, bureaucratic and time-consuming and, crucially, will inevitably divert resources from front-line care.

As a consequence, the Local Government Association and ADASS are calling on the Government to fully fund the cost of the changes to DoLS and to ensure that the healthcare of vulnerable people is not affected. I spoke at a Mencap conference in Cardiff today on learning disabilities and access to justice. It expressed concern that the costs imposed by DoLS might deflect from the direct care of people with such disabilities. Will the Minister explain the Government’s position on the funding arrangements?

I return to the Select Committee report and the Government’s response. The House of Lords Select Committee rightly asserted:

“Better understanding of the purpose behind the safeguards is urgently required”.

Part of the Government’s response was to request the health and social care sector to establish a multiagency task force to determine the impact of the Supreme Court judgment on local authorities and to identify potential solutions, such as pooled training and sharing good practice. This is clearly welcome but, as ADASS pointed out, even with extensive sector-led activity, local authorities cannot hope fully to mitigate the impact of the judgment without additional resources. Further, as we have heard, the BMA is calling for an urgent review of DoLS with a view to simplifying and streamlining the system. I would welcome the Minister’s response to that call.

Another key point is that considerable uncertainty remains in a wide range of circumstances about whether care or treatment will amount to a DoLS. This uncertainty could lead to confusion for health professionals and a defensive and bureaucratic mindset, as the BMA pointed out. This is partly through the failure to deliver effective training in this area, as the noble Baroness, Lady Finlay, pointed out in last week’s debate, and can lead to staff being understandably risk-averse in the assessment process.

Investment in training in all aspects of mental health and learning disability legislation and services is essential, particularly in relation to the Mental Capacity Act and the related DoLS. Many organisations support that view, including Mencap, which clearly recognises the specific training needs of staff working with people with learning disabilities. My views on the crucial importance of training, for what they are worth, have been shaped by my involvement in the national rollout of liaison and diversion services for people with mental health and learning disabilities who come into contact with the criminal justice system. Those multiagency programmes rely on training not only within individual organisations but, more importantly, across organisations to ensure that there is a common understanding of the needs of the individual, breaking down organisational and cultural barriers.

While it is welcome that the Government have recognised some of the issues that have been identified as a result of the Cheshire West judgment, faster action and more resources need to be considered properly to respond to the Select Committee’s nine recommendations on goals and to ensure that the health and social care needs of some of the most vulnerable people are properly met. I hope that the Government therefore respond in a more speedy and timely manner on those issues.