Cheshire West, DOLS and the Law of Unintended Consequences.
Minister announces speeding up of Law Commission Review.
On 17th June 2015, Ann Coffey (Stockport) (Lab) introduced a debate in the Commons ‘that this House has considered deprivation of liberty safeguards assessments’. In doing so she highlighted a) the financial consequences of the current situation for a ‘typical’ local authority and b) the operational consequences for Care Homes and Coroner Courts.
“Between 1 April 2014 and the end of January 2015, Stockport received 612 applications. It now has about 230 cases that have not yet been processed. All cases agreed will be reassessed automatically in 12 months’ time. Stockport council is now spending almost £1.2 million a year on DOLS assessments and employing six new social workers, a special DOLS co-ordinator and a part-time solicitor. The council has also had to draft in a private agency, because each average assessment takes about nine to 12 hours. That is a lot of time and money when social care budgets are being squeezed.
One of the main aspects worrying me on behalf of my constituents is the consequences of guidance issued by the Chief Coroner to local coroners in December 2014, subsequent to the Supreme Court judgments. The guidance stated that all deaths of people subject to a DOLS order must be investigated by the coroner, whether the death was from natural causes or not, and that such people were deemed to be “in state detention. As a result, when a dementia sufferer subject to a DOLS dies in a care home, GPs have to notify police, who must come and sit with the body until it is collected by the coroner’s mortician to be taken to the hospital mortuary, where it has to be formally identified before a formal inquest process starts. That system is causing untold distress to relatives and leading to an increased workload throughout the public sector. I understand that Peter Fahy, the chief constable of Greater Manchester police, has written to adult social care teams looking for information amid concern about how the changes will impact on police time and resources.”
Alistair Burt, newly appointed Minister for Community and Social Care, replied, acknowledged the urgency of the situation and announced a ‘speeding up’ the The Law Commission’s review, with the target of a draft Bill, by the end of 2016.
“The case for a thorough review of the legislation in this area is unambiguous. The legislation underpinning DOLS was introduced by the then Government in 2007. It was criticised by Select Committees of both Houses, even before the implications of the Supreme Court judgment became clear. Following the judgment, the Government are funding the independent Law Commission to review the legislation underpinning DOLS. It will launch a four-month public consultation on a proposed new scheme on 7 July 2015.
Following the Hon. Lady’s intervention, it has occurred to me that she and other parliamentary colleagues may appreciate a dedicated consultation event with the Law Commission on the parliamentary estate. If she agrees, I shall endeavour to make arrangements for that. I will contact the Law Commission to suggest such an event and I hope that it might want a session here so that it can listen to the expertise of colleagues. I am sure the commission would benefit from such expertise, and I will write to her and let her know what it makes of that suggestion.
Given the criticism of the current DOLS legislation, and bearing in mind the likelihood of unintended consequences, I strongly believe that it is important for the Law Commission to be given the time to consider the entire legislation in the round and, if appropriate, propose a comprehensive solution. It would be unwise to rush into specific legislative changes, the repercussions of which might not be clear, so I am not tempted at the moment to make any changes to the regulations.
However, I agree with the hon. Lady on greater urgency. The Law Commission’s review was scheduled to be completed, in the form of detailed policy proposals and a draft Bill, in the summer of 2017. I think, having taken up my duties, that that needs to happen quicker. Accordingly, I have proposed, and the Law Commission has agreed, an acceleration of the review to ensure that it will now be completed, in the form of detailed policy proposals and a draft Bill, by the end of 2016. I know that that is still some time away, but bearing in mind the complexity of the issue, I do not think we can afford to get the next bite at this wrong, so I hope that the hon. Lady welcomes that news.
In the interim, my Department has been working with various partners to support the system’s response to the Supreme Court judgment. I reiterate now that the response to that judgment must be rooted in the principles and values of the Mental Capacity Act. Our efforts have to be focused primarily on realising real benefits for individuals. DOLS are about people, not paperwork. My Department has issued clear guidance that has emphasised the importance of a proportionate Mental Capacity Act-centred approach, and emphasised that so-called bulk applications for all the residents of a care home are not acceptable. DOLS apply only to those who lack the specific capacity to consent to their accommodation. Many in care homes and hospitals will have that capacity and so not be eligible for DOLS. That must be made clear.
We recognise that the scale of the challenge set by the Supreme Court means that some local authorities will be unable to process DOLS applications within the 21-day legal timeframe. The Care Quality Commission has been clear that providers will not be unfairly punished for such technical breaches. However, the CQC has been equally clear, quite rightly, that a do-nothing approach is unacceptable, so providers and local authorities must have a plan in place for ensuring that those who stand to benefit most from a DOLS assessment receive one in a timely manner.
The Department has funded a reduction in the non-statutory bureaucracy accompanying the DOLS process, reducing the number of application forms from 32 to 13. The Association of Directors of Adult Social Services, which delivered that project, deserves particular praise for the support it has provided to its member organisations since the Supreme Court judgment.
The Department has funded the Law Society to produce excellent comprehensive guidance, in collaboration with practitioners, to assist in identifying a true deprivation of liberty, and in March this year, the Government announced that they would provide local authorities with an extra £25 million to support their efforts on DOLS in 2015-16.
I reassure the hon. Lady that I understand the concerns that some local authorities have about the cost of DOLS, and I praise the hard work of local DOLS teams. However, I am aware that there is considerable variation among local authorities as regards the number of applications that they have been able to process. Clearly, it is important that we identify and learn from current best practice, so my officials are in close contact with providers and local authorities, and I have instructed them to make further visits across England this summer to continue to understand the local response.
Although some may baulk at the idea of 100,000 DOLS applications a year, we should remember that every one of those applications represents a person having their care independently scrutinised. DOLS can help to shine a light on care that is unnecessarily restrictive and does not put the person’s views first and foremost. Therefore, we should strongly back the principles of DOLS. Our shared challenge now is, through the Law Commission review, to understand how those principles can be better applied in the day-to-day reality of the health and care system and after the unintended consequences of the judgment.”
Rescare will keep you updated on developments. For further background information see this previous article and embedded weblinks.