Agenda item

Sam Newton, Service Manager, Safeguarding Adults, presented a report outlining the significant resource implications for the Local Authority in its role as Care Manager, Care Provider and Supervisory Body as a result of a legal challenge and case law.

The Deprivation of Liberty Safeguards (DoLS) were introduced to the Mental Capacity Act 2005 through the Mental Capacity Act 2007 which required a process to be implemented which ensured that people who were considered to be deprived of their liberty were safeguarded through the DoLS process.  This had been subject to challenge and case law, the most recent of which was the judgement in P v Cheshire West and Chester Council and P & Q v Surrey County Council which was handed down by the Supreme Court on 19^th March, 2014.  The judgement clarified the meaning of ‘deprivation of liberty’ in the context of social and health care which had practical and legal implications for the future of the Mental Capacity Act and the application of Article 5 of the European Convention on Human Rights and Article 5 being a person’s right to liberty.

In order to meet its statutory responsibility following the judgement, the Local Authority would need to invest in additional resources and workforce.  The initial costing for assessment alone could be in the region of £1M with an annual recurrent cost of approximately £700,000 for reviews and new assessments.  This did not include the financial implications in terms of costs for commissioners, legal services, human resources, additional Mental Health Act assessments and implications for Section 117 funding.

An initial action plan had been developed but was likely to change as national guidance emerged.  In order to meet the initial impact and demand, the DoLS Team would have to be immediately increased with a Best Interest Assessor and additional business support in order to priorities all urgent DoLS requests (completion in 7 days). All previous DoLS applications received in the past 2 years that were not granted on the grounds that they did not meet the Council’s then understanding of the threshold for deprivation of liberty would need to be reviewed.

A more detailed scoping exercise would be undertaken to understand how many individuals in Rotherham would be affected including all Adults and Children (those that are 16 years+ and in Foster Care) and those in receipt of health services.  It was proposed that a working party be established to undertake this exercise and would include:-

-          An approach to assessing/reviewing individuals that were impacted upon by the judgement

-          Whether those who lacked the mental capacity to consent would need to be subject to a DoLS authorisation or be detained under a section of the Mental Health Act

-          Proposed planned and measured approach applied in respect of standard requests (completion in 21 days) working with providers to identify, screen and prioritise assessments over a longer time frame e.g. 12 months

-          Future applications not accepted without an appropriate Mental Capacity Assessment and evidence of a well worked best interest decision clearly demonstrating that all other alternatives to a deprivation of the person’s liberty had been explored and ruled out

-          Work with Rotherham CCG in terms of negotiating the availability of Section 12 Approved Doctors practicing within the local area

-          Consideration to recruitment of additional trained Best Interests Assessors from external sources and/or investment in the development of the internal workforce to conduct reviews/assessments

-          Impact of the additional demand on Legal Services

Discussion ensued on the report with the following issues raised/clarified:-

-          Any suitably qualified doctor who had received Section 12 training could carry out the assessment

-          Work was taking place around options for increasing the pool of Section 12 doctors as cost effectively as possible

-          ADASS had commissioned a survey and was working with the Department of Health on the requirements

-          Need to ensure that Social Workers were fully aware of the implications of these rulings especially in relation to their understanding of the Human Rights Act and the Article 5 and the Mental Capacity Act

Resolved:-  That the report be noted.