New social care rules – what are the risks?

  • Deciding when it is appropriate to deprive a person of their liberty is one of the most challenging decisions a care professional can face
  • New rules are set to shift the burden for establishing the case for deprivation of liberty away from care providers and on to care commissioners, which includes local authorities
  • We discuss how these rules could increase the risk of legal claims, and how local authorities can manage this risk

The Deprivation of Liberty Safeguards (DoLS) – which determine when it is appropriate for a person receiving social care in a hospital or care home to be deprived of their liberty – have been widely criticised in recent years.

In the context of further austerity these new responsibilities are likely to be challenging.”
Clive Speed, Regional Senior Claims Service Manager, Zurich Municipal

A House of Lords report in 2014 branded DoLS “not fit for purpose” and proposed they be replaced. A subsequent Law Commission review highlighted several specific concerns about the safeguards. It argued that they did not take full account of a person’s rights to a family life under the European Convention of Human Rights (ECHR). They also created a one-size-fits-all approach that was not appropriate for every kind of care setting.

The Law Commission says new legislation is required, and it is expected to publish a draft bill in December, which will then be reviewed by the Government.

What the new law could mean for local authorities

While the details of the new legislation remain to be seen, the Law Commission says a new system will have to include safeguards to protect people’s rights under the ECHR. This should include the right to bring legal proceedings to challenge deprivation of liberty decisions, and the right to advocacy.

Since the publication of the Interim Report we have of course had the public vote on Brexit. How this will impact on the ECHR and the possible introduction of a UK Bill of Rights are issues that will no doubt be debated over the coming months.

For local authorities, a crucial change could be the Law Commission’s proposal to shift the responsibility for establishing the case for a deprivation of liberty away from the care provider and on to “the commissioning body (such as the NHS or local authority) that is arranging the relevant care or treatment”.

This change comes against a backdrop of rising DoLS caseloads. Since a Supreme Court judgement in 2014 known as Cheshire West, which broadened the definition of what constitutes a deprivation of liberty, there has been a tenfold increase in DoLS applications in England and a 16-fold increase in Wales.

Clive Speed, Regional Senior Claims Service Manager, Zurich Municipal, says: “Local authorities have struggled to cope with what is being asked of them currently, and in the context of further austerity these new responsibilities are likely to be challenging.”

Some local authorities have become so concerned about their caseloads that they have launched a legal challenge against the Government. They argue that they have been given insufficient funding to carry out their statutory duties.

How claims might emerge

A key concern will be whether or not the combination of rising caseloads, and the shifting of responsibility for deprivation of liberty decisions onto local authorities, will lead to an increase in claims – for example if it is alleged a DoLS decision has been made incorrectly, or delayed unnecessarily.

Speed says: “If a local authority cannot fulfil its statutory obligations for whatever reason, and as a consequence somebody’s human rights are breached, there will be the potential for that authority to face legal action.”

What local authorities should do next

We would encourage you to consider carefully the recommendations included in the Law Commission’s Interim Statement on Mental Capacity and Deprivation of Liberty, to help understand the likely impact on your organisation and to ensure that you have adequate resources in place to cope with the demand on your services.

Speed says: “You should also consider different scenarios to determine which risks could be transferred through your risk transfer programme and which could not.

“For example, there are some risks, such as breaches of the European Convention of Human Rights, that may not be insurable, and at Zurich Municipal we will look at each case on its own merits.”

You can find out more about the proposed changes and the implications for local authorities by reading the Law Commission’s interim statement on Mental Capacity and Deprivation of Liberty, the Deprivation of Liberty Consultation Summary or this Law Society Gazette article.