The Ombudsman found Staffordshire County Council failed to process Deprivation of Liberty Safeguard applications in accordance with legislation and statutory guidance.
The Local Government and Social Care Ombudsman received a complaint which prompted investigation into Staffordshire County Council's conduct in relation to Deprivation of Liberty Safeguard (DoLS) applications. DoLS provides legal protection for individuals who lack mental capacity to consent to care or treatment in a care home or hospital, by authorising those arrangements if they are in the best interests of the individual. Without authorisation the public body is potentially breaching the individual's right to liberty under Article 5.
Staffordshire CC received a number of DoLS applications and categorised these as 'low, medium or high priority' once received, though we are unsure what these categories actually meant. From May 2016, low and medium priority DoLS applications were not processed, whereas high priority DoLS applications were significantly delayed.
Staffordshire CC agreed that they were at fault but argued that there were a lack of financial resources in place to manage the amount of DoLS applications. They estimated that it would cost approximately £3.5 million to clear the backlog of DoLS requests, but this would only be at the expense of reducing spending on other essential services. At the end of March 2018, there was a backlog of 2,927 DoLS applications with the oldest dated as 11 August 2014. 1,957 DoLS applications were closed after May 2016 by Staffordshire CC as the applicant had passed away.
The Ombudsman commended Staffordshire CC for reviewing its current policy surrounding DoLS applications. The Ombudsman recommended that an action plan should be produced by the Council within three months of the amendment to the Mental Capacity Act 2005 being finalised by Parliament. The action plan should detail how Staffordshire CC would deal with all incoming DoLS applications going forward and how it would deal with the backlog of unassessed DoLS applications. The Ombudsman suggested that the action plan is regularly reviewed, taking account changes in law and government guidance.
Ultimately this report is a sad indictment on the state of social care funding at present, if a local authority claims that it does not have the finances to meet its statutory obligations. Unless the trend of funding cuts is reversed failures such as these will only increase and people will be left without vital support or safeguards. We recognise that the DoLS system needs urgent reform. We've long-awaited an overhaul of the DOLS system, which is not fit for purpose and left thousands of people, including those of us with mental health problems, without vital legal protection.
We have written a previous legal newsletter about the changes to DoLS coming through the Mental Capacity (Amendment) Act 2019. One of the objectives of the Liberty of Protection Safeguards is to provide a less cumbersome process, which should ease the burden on local authorities.
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