Costs of assessing when mentally vulnerable patients can be detained in hospitals and care homes soar following supreme court rulingCosts of assessing when mentally vulnerable patients can be detained in hospitals and care homes soar following supreme court ruling
Local authorities are struggling to cope with a tenfold increase in assessments of mentally vulnerable patients when hospitals or care homes want to deprive them of their liberty. A court ruling in March,increasing the number of patients protected under the Mental Capacity Act deprivation of liberty safeguards (DoLS), has seen assessments soar from just over 10,000 last year, to a predicted 94,000 this year, according to the Association of Directors of Social Services. While the ruling brings welcome clarity to the area, it could cost councils nationally an extra £80m this year, Adass calculates.
DoLS were first introduced in 2009, following the so-called "Bournewood gap" court case, brought by the foster carers of "HL", a man with autism and learning difficulties, who were prevented from taking him home from hospital. Although the case was unsuccessful in the domestic courts, the European Court of Human Rights ruled in 2004 that he had been unlawfully detained and that the law needed to be changed so that there was a legal mechanism for challenging someone's informal detention. "What happened to us just couldn't happen now," says one of HL's carers. "Then, it was just a clinical decision by the doctor to keep him there."
Doctors may decide to apply to deprive an individual of their liberty because they believe the patient, who usually has dementia or severe learning difficulties, would come to harm otherwise. Since 2009, if a hospital or care home wants to deprive a patient of their liberty – by limiting where they can go, or what they can do – it must get any such restrictions approved by the local authority. Any restrictions must be the minimum necessary. Patients' views and best interests must be taken into account and decisions must be reviewed regularly. Those wishing to appeal can challenge any decision to curb their liberty in the court of protection. Similar safeguards apply where the person whose liberty is restricted is living in their own home, but the decision to deprive their liberty is taken by the court of protection, not the local authority.
Until March 2014, the safeguards were not thought to apply if the conditions under which a person's liberty was restricted were standard for someone with that level of disability. Following the Cheshire West case, brought on behalf of three learning disabled people, the supreme court ruled that people lacking mental capacity should not face a tougher standard of being deprived of their liberty. Now the safeguards must be followed whenever a patient is being deprived of their liberty, regardless of how comfortable or contented they appear to be with their lot. "A gilded cage is still a cage," the supreme court ruled.
And until the recent ruling, there was no consensus over how great the restrictions on a patient had to be before DoLS was triggered. The supreme court's judgment has now set an "acid test" for when DoLS must be applied: is the patient under constant supervision; if they tried to leave, would someone stop them? The change has been welcomed by campaigners, including Mark Neary, who appealed to the court of protection in 2011 after his autistic son Steven was kept in a hospital "positive behaviour unit" under a DoLS authorisation. After a year battling with Hillingdon council, Steven was allowed to come home. Had Hillingdon had its way, "Steven would have faced a life in public care that he did not want and does not need," the court judgment concluded.
"There must be tons and tons of people in those kinds of places who weren't previously covered by DoLS, which made it almost impossible for them to get access to the courts," says Neary. "Without DoLS, Steven would probably still be living in that ward, rather than having his own place, as he does now."
David Pearson, the president of Adass, agrees this level of scrutiny is needed in order to protect patients he describes as "the most vulnerable of the most vulnerable", but says additional staffing and legal costs generated by the hike in DoLS applications is putting already hard-pressed council budgets under strain. "There will have to be further cuts to pay for the cost of this additional work," he says. And with a large proportion of DoLS assessments comprising older people with dementia, costs are set to rise further as the population ages.
Many local authorities say they have been caught out by the scale of change imposed by the supreme court. "We had no time to prepare for it," says Andrew Webb, director of services for people at Stockport council. "It has put us under huge pressure." Webb estimates that dealing with the extra DoLS applications could add £700,000-£1.1m to Stockport's social work budget.
And in Shropshire, DoLS applications are up 600% from the same period last year. Lorraine Currie, Mental Capacity Act and DoLS lead for the county says: "We did 165 for the whole of last year. We exceeded that in just the first quarter of this year, with 218 applications." Shropshire is streamlining where it can, reallocating staff and bringing in temporary cover, but "it's only a sticking plaster solution". Timetables are starting to slip and some assessments are taking longer than they should to process, she adds.
Apart from the problem of delay – during which some patients may be kept in hospital when they could go home, causing them and their families great distress – another concern is that local authorities may curb how long they spend establishing individuals' wishes.
Typically, a DoLS best interest assessor (BIA), who is a specially trained social worker, will spend around 15-20 hours working out what the patient would want if they did have capacity. But some worry local authorities may start to cut corners to reduce costs. "There is lots of good work being done. Care plans are being amended and people are allowed home," says Roger Hargreaves, a former mental health social worker and DoLS lead for the Mental Health Alliance. "DoLS works well, if there's enough time. If you have to cut it down to three or four hours, the safeguard vanishes."
Even a small adjustment to a care plan can make a big difference. Sophy Miles, the solicitor who acted for Steven Neary, and is chair of the Law Society's mental health committee, cites the example of a woman who was barred from entering the kitchen, to stop her getting hold of knives. After her case was assessed, her DoLS authorisation specified that the knife drawer should be kept locked. "So she was free to go into the kitchen if she wanted to get a biscuit or something," says Miles.
Despite the changes, campaigners worry the system provides insufficient independent oversight of councils' decisions. "DoLS is based on the assumption that the local authority is a neutral party, who can hold the ring. It's not," says Hargreaves. "I know from my own experience as a former local authority manager, there is a financial incentive to put people in residential care."
And because it is councils who assess whether decisions to deprive people of liberty are warranted, the experts making those assessments have often been involved in planning the patient's support package. For example, in the Neary case, the head of the DoLS team also attended Steven's care planning meetings. Another difficulty is that the council is the gatekeeper to expertise that would help a family to challenge a DoLS decision. Families are meant to be put in touch with an independent mental capacity adviser to steer them through the process, but councils do not always appoint them soon enough.
Even so, appeals to the court of protection challenging decisions to deprive liberty are also spiralling. Proposals to streamline the appeal process are expected imminently.
The Law Commission is reviewing DoLS, following a critical report by a House of Lords select committee in March, which said DoLS were not fit for purpose. But the commission's recommendations are not due until 2017 and some worry that even then reforms won't go far enough. "The government does not seem to be talking about a root and branch review," says Hargreaves. "It just has its head in the sand and its hands over its ears on this issue."