On 13th April 2015, Cabinet was updated on the emerging implications for the Council of the Supreme Court judgement on the Cheshire West and Surrey cases in March 2014, which related to the use of the Deprivation of Liberty Safeguards 2009, and the impact upon the Social Services Directorate’s capacity to meet statutory obligations under the safeguards.


The Cardiff and the Vale Deprivation of Liberty Safeguards / Mental capacity Act (DoLS / MCA) Team continued to fulfil the Supervisory Body responsibilities required for DoLS on behalf of Cardiff and Vale UHB, City of Cardiff Council and the Vale of Glamorgan Council.  This was overseen by a partnership management board consisting of senior representatives from each Supervisory Body.  On behalf of the three Supervisory Bodies, the team was responsible for the following:

  • Co-ordination of DoLS assessments as requested by Managing Authorities
  • Supervised and managed the workload of over 40 Best Interest Assessors
  • Advised and supported health and social care teams across the sector in relation to MCA / DoLS issues
  • Provided training for care homes and all in-patient sites across the hospitals of Cardiff and the Vale of Glamorgan.

Since the Supreme Court ruling, the team had seen a 10 to 15 fold increase in the number of referrals, particularly from Care Homes.  


It was notable that the number of referrals from hospital wards had not increased at the same rate.  


Table A within the report showed the number of DoLS referrals per Supervisory Body.  In terms of the Vale, the number of referrals had increased from 6 in 2013/14 to 401 between April 2014 and the end of January 2015.  This represented 30% of the team’s activity.  


Table B showed the number of completed DoLS assessments for each of the three Supervisory Bodies.  For the Vale, 119 assessments had been completed which had accounted for 21% of the overall team activity.  At present, there were still 282 outstanding assessments to be completed.  


Where a Managing Authority (Care Home for the Local Authority or hospital ward for the LHB) made an Urgent Authorisation following a sudden and unforeseen event, they were in effect authorising themselves to deprive a person of their liberty for up to 7 days.  The Managing Authority must request a Standard Authorisations from the Cardiff and Vale MCA / DoLS team at the same time as issuing their own Urgent Authorisation.  The team then had 7 days to undertake a full DoLS assessment to consider an ongoing Standard Authorisation.  


Standard Authorisation requests were made where a Managing Authority had reason to believe that they were depriving a person of their liberty or would deprive a person of their liberty within the next 28 days.  The Supervisory Body then had 21 days to undertake a comprehensive DoLS assessment in order to consider authorising the Deprivation of Liberty.


The report outlined that Supervisory Bodies were at risk of legal challenge for not complying with the statutory timescales within the DoLS process.  Essex County Council was recently ordered to pay damages of £60,000 following a breach of statutory timescales.  


A breakdown of team demand and capacity was provided, which was as follows:

  • Number of requests for DoLS Authorisations was between 150 and 200 per month

-    Each DoLS assessment would take between half and a full day to complete
-    Each DoLS assessment must be authorised by a senior manager within the Supervisory Body (half an hour per authorisation)

  • Team Best Interests Assessors (BIAs) were currently undertaking approximately 60 to 70 DoLS assessments per month
  • Rota BIAs were undertaking approximately 20 assessments per month
  • A shortfall of between 50 and 100 DoLS assessments per month was leading to an increasing backlog of outstanding referrals.

The team would require an additional two full time Best Interest Assessors to reduce the backlog of care home DoLS and to ensure compliance for all new DoLS requests.  This would cost the Cardiff and Vale Local Authorities in the region of £60,000 and £40,000 respectively.


In relation to people living in domestic settings, the report outlined that supported living arrangements provide care and support that may necessitate continuous supervision and control and require the person to live in a particular property where the support could be provided.  This would constitute a Deprivation of Liberty.  Within the Vale there were 150 people living in supported living accommodation with a potential that 75 of these cases to be deprived of their liberty.


Members were asked to note that people living in supported accommodation stood outside the Deprivation of Liberty Safeguards, so care managers / care co-ordinators for all identified individuals should consider an application to the Court of Protection for authorisation of the care regime.  On the basis of legal advice, Cardiff and Vale Councils had identified a number of individual care arrangements (4 and 2 respectively) to take to the Court of Protection for consideration.


The Court of Protection was experiencing significant challenges in hearing the increased volume of cases and it had recently revised application arrangements to speed up the process.


The Chairman queried whether the recruitment of two best interest assessors had been fully costed and whether the service would appoint them.  In reply the Head of Adult Services advised that the service would be getting the two new appointments, but the challenge would be in assessing whether this was sufficient to deal with the backlog. This would be something that the service would keep an eye on and report back to Scrutiny in due course.  Further to this, a Committee Member queried as to what the situation would be like during 2015/16.  In response the Head of Adult Services stated that in terms of personnel, this was something that the service could actively control and that there would be opportunity if needed for social work staff to be redeployed.  He commented that there must be a ceiling in terms of numbers of people within care homes as there were a finite number of places but he was not sure whether the ceiling had been reached within hospitals as the same level of increase had not been seen.  He also alluded to the need to review a person’s situation after 12 months, which would also have an impact upon resources.  


In answer to a Committee Member’s query as to whether the court’s verdict in respect of DoLS covered the whole of the United Kingdom, the Head of Adult Services stated that he was not sure as Scotland came under a different judicial system.  He agreed to clarify this and report back to Members.  He went on to make mention of the £25m made available to Authorities within England, and that no additional support had been made available by the Welsh Government.  For this reason, the Association of Directors of Social Services had made representations to Welsh Government, but as yet no decision had been made.  He also stated that there was a need to streamline the assessment process and to look at how work was undertaken.  


Further to this query, the Director of Social Services made a generic point in relation to the issue of how social services budgets were managed and the impact that case decisions made by Courts could have on services and resources.  The Council would need to decide how it could manage the situation.  It could either divert resources or increase funding.  


A Committee Member questioned as to why there was a need to review the case after a period of 12 months and whether this was down to a person’s condition worsening.  The Head of Adult Services advised that this may indeed be so but, regardless of this, after a 12 month period the service would have to re-examine a person’s situation to determine if it was still right to deprive the individual of their liberty.  The service could determine to deprive a person of liberty for a shorter period, but this was less common. The main client group would be people who were in nursing / residential care homes and those at the end of life stages.


A Member commented that depriving a person of their liberty was a very serious matter and queried as to where all these cases had come from.  In response, the Head of Adult Services explained that all referrals would come via care homes as this was something that the homes had to do when there were issues around a person’s mental capacity and they were unable to leave the home, often for their own safety.  These homes had a responsibility to bring these cases to light as, if they did not, they could be open to criticism.  He went on to state that following the change in law the service would need to make judgements between maintaining a person’s liberties or keeping them safe.


Officers were asked to clarify, in terms of cost, what could happen if the Council was taken to court.  The Head of Adult Services advised that a recent case within Essex in which the Local Authority had breached the statutory timescales had resulted in a £60,000 fine for that Authority.  He also advised that the backlog did present a significant risk for the Authority but that the Vale of Glamorgan was no better or worse than any other area within the UK.  


Having considered the reference, the Committee


RECOMMENDED – T H A T Cabinet be requested to contact Welsh Government in order to seek financial support in view of the additional work that had been created.


Reason for recommendation


In order to address the need to mitigate the risks associated with deprivation of liberty safeguards within the Vale of Glamorgan.”