A fifth of directors of adult social services have "no confidence" that their budgets will be sufficient for them to meet their Deprivation of Liberty Safeguards duties this year (DoLS).
The finding, from the Association of Directors of Adult Social Services' as yet unpublished spring survey, was revealed in a joint letter from ADASS and the British Association of Social Workers (BASW) to care minister Stephen Kinnock, urging him to end the "uncertainty" on reforming DoLS.
Kinnock 'not entirely convinced' about LPS reform
It was sent in response to Kinnock saying last month that he was "not entirely convinced" by the case for replacing DoLS by the Liberty Protection Safeguards (LPS) and that the government would be continuing with the current system for the time being.The LPS was legislated for through the Mental Capacity (Amendment) Act 2019 to replace the DoLS and the parallel use of Court of Protection orders to authorise the deprivation of liberty of people for the purposes of their care and treatment, where they lack the capacity to consent.
The reform was intended to streamline the system and thereby manage the huge and sustained rise in case numbers since the landmark 2014 Cheshire West judgment widened the definition of what constituted a deprivation of liberty under Article 5 of the European Convention on Human Rights (ECHR).
However, the reform was delayed repeatedly and then shelved by the last government, while Kinnock's remarks have thrown into doubt the Labour administration's intent to carry out the changes.
BASW and ADASS concerned by ongoing 'uncertainty'
In their letter, ADASS president Jess McGregor and the chair of BASW's policy, ethics and human rights committee, Annie Ho, said they were concerned that "despite passing through parliament six years ago, there is still uncertainty as to whether or when LPS will replace [the] Deprivation of Liberty Safeguards (DoLS)".Though practitioners managed to reduce the number of cases left incomplete at the end of the year, the financial year ended with a backlog of 123,790 referrals, while completed cases took an average 144 days to conclude, against a statutory timeframe of 21 days.
Quoting results from ADASS's spring survey, Ho and McGregor said it was "very worrying to see that, provisionally, a fifth (20%) of directors [had] no confidence that their budgets [would] be sufficient to meet their statutory duties around DoLS for 2025-26".
Unlawful deprivations of liberty 'lasting longer than they should'
"When assessments are delayed, staff face the challenge of keeping people safe while protecting their rights," said McGregor and Ho."People are being unlawfully deprived of their liberty for longer than they should, or where less restrictive options could have been identified sooner."
The LPS is designed to reduce the administrative burdens of authorising a deprivation of liberty by:
- Removing the need to seek Court of Protection authorisation for cases outside of a care home or hospital or those involving 16- and 17-year-olds;
- Spreading responsibility for authorisation in England between councils and NHS bodies, unlike with DoLS, where the burden falls on local authorities alone;
- Enabling greater use of previous or equivalent assessments than is permitted under DoLS to make authorisation decisions;
- Integrating the authorisation process with standard health and social care processes, such as Care Act assessments;
- Reducing the need to use specially trained professionals;
- Allowing authorisations after the initial one and first renewal to last for up to three years, whereas all DoLS authorisations last a maximum of one year.
Status quo 'is not viable option'
In their letter to Kinnock, Ho and McGregor said that, were the LPS implemented, "not only would more people be protected, but further savings could be made by local authorities not needing to take community DoLS cases to the Court of Protection for authorisation".However, they warned that, were it not to go ahead, the status quo was "not a viable nor a sustainable option".
Ho and McGregor said that, iff DoLS were to be retained, it needed to be reformed in line with changes planned under the LPS, including removing the 12-month time limit on reusing previous assessments, extending the maximum authorisation time to three years and expanding the pool of professionals that can carry out assessments. This is currently restricted to best interests assessors, who are typically social workers with specialist training, and mental health assessors, who must be doctors with specialist psychiatric expertise.
They said such changes could save councils £50m a year while improving outcomes for people, and could be implemented through the government's current Mental Health Bill.
Urging Kinnock to set out the government's plans, one way of the other, they added: "It is imperative that the government seeks to end this lengthy and prolonged delay by providing much needed clarity on its plans for phasing in LPS."
