1. Deprivation of Liberty Safeguards Jim Dean Audit Manager – Cheshire West and Chester Council 17 June 2016 1

2. What is DoLS Audit Approach Findings and Risks Developments and Next Steps Questions

3. Deprivation of Liberty Safeguards – What is it about? MCA 2005 - lacking capacity to consent to care/treatment –Standard: Care homes/hospitals – 18yrs+ –Court of Protection: Community Settings (own homes, supported living, shared lives) and/or 16yrs+ Restraints and restrictions allowed if in the person’s best interests Safeguards needed if this amounts to deprivation of liberty – article 5 ECHR 3

4. Examples Older person in care home with advanced dementia prevented from going out alone Restrictions placed on a person with learning disabilities to ensure they do not suffer harm eg in respect of cutlery/food etc Person with brain injury required to be sedated/restrained to administer treatment 4

5. Assessment and Authorisation Care homes/hospital settings - providers apply to LAs –Assessments a statutory duty: Six assessments to determine if conditions met including age, mental capacity, best interests Authorised for up to a year Authorisation to be determined within 21 days (standard authorisation) or 7 days (urgent) Rights to representation and challenge Community Settings – LAs apply to CoP 5

6. Deprivation of Liberty – A definition March 2014 – Supreme Court Ruling (P v CWaC and P&Q v Surrey CC) The “acid test”: –Is the person subject to continuous supervision and control –Is the person free to leave (not just if they want to leave) 6

7. Impact of Supreme Court Ruling Deprivation of liberty threshold lowered – not just a matter of objection DoH guidance March 2014 “local authorities must review their allocation of resources….to ensure they meet their legal responsibilities”. 7

8. Impact of Supreme Court Ruling Significant increase in provider referrals/CoP applications - 100 to 2,500 pa Prioritised approach adopted per ADASS guidelines –Urgent cases assessed first –Criteria agreed by Local Safeguarding Adults Board –Endorsed by Audit and Governance Committee 8

9. Audit approach Interviews – Adult Social Care and Legal teams Review of end to end process – provider referrals/ CoP Review of sample of applications to CoP Other LAs contacted to compare approach 9

10. Key Findings (1) All those potentially affected not identified –“Reasonableness” (volume/proportion) of referrals by provider not considered –Lack of comprehensive overview covering all specialities and community settings –Self funders and out of area placements not considered 10

11. Key Findings (2) Delays in dealing with referrals and submitting CoP applications –70% of priority cases within 7 day target –2,000 + standard referrals not assessed –350 known service users in community settings where no CoP application submitted 11

12. Key Findings (3) Lack of understanding of DoLS requirements –CoP applications poorly prepared leading to inefficiencies/delays –Inadequate evidence of consultation Interested parties views? Suitability of the person undertaking the consultation Views of the service user?!! –DoLS not embedded in care planning Assessment, review and re-assessment – not a one-off 12

13. Risks Unlawful deprivation of liberty – HRA 1998 Damage to reputation/financial impact Substantive breach v procedural breach Case law: Substantive breach = approx £4,500 pm damages Backlog cases: Potential £80K liability for one case alone v £1m needed to clear backlog! Can’t insure for breaking the law! 13

14. Conclusions Measured and proportionate approach taken but not compliant with MCA In line with other LAs and potentially better than some: –CoP applications at least double those of other LAs contacted Likelihood of substantial breach low but potential for high financial and reputational impact 14

15. Developments Law Commission review - final report due late 2016 Legislative change likely but not before 2018/19 Potential changes: –Responsibility for establishing case for deprivation of liberty shifted from provider to commissioning body (LA) –Commissioning body also to arrange provision of advocacy and consult with family members –First-tier Tribunal to replace Court of Protection 15

16. IA - Next Steps Follow-up review Adults DoLS16/17 Review of Children’s DoLS –Acid test applies to 15yrs and below too –Deprivation authorised through: CoP for 16-18 (currently!) High Court for 15yrs and below –DoLS awareness?? 16

17. Questions