Agenda Item No. 7











Cabinet were updated on the implications of a Supreme Court Ruling in March 2014 regarding implementation of the Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards 2009.


The Deprivation of Liberty Safeguards set out a legal and procedural framework for authorising the care arrangements that deprived a mentally incapacitated person of their liberty where that care was determined as being in the person's best interests.


The Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards 2009 service was partnership led and managed by the Vale of Glamorgan Council.  There was a tripartite management board with representation from Cardiff and Vale University Health Board, Cardiff City Council and the Vale of Glamorgan Council.


The team provided coordination of Best Interest Assessments, advice and support to health and social care teams and training for Assessment Care Management Teams, Care and Social Services Inspectorate Wales -registered care homes and all in-patient sites across the Vale of Glamorgan and Cardiff areas.


On 19 March, 2014, the Supreme Court passed judgement on two cases - MIG and MEG (Surrey) and P (Cheshire West) - overturning previous judgements by the Court of Appeal.  It published a revised test for deprivation of liberty which extended the protection of the Deprivation of Liberty Safeguards and the Court of Protection to a wider population of people being cared for in care homes, hospitals and within their own homes.


The Supreme Court clarified that there was a deprivation of liberty for the purposes of Article 5 in the following circumstances:

  • The person was under continuous supervision and control; and
  • Was not free to leave.

The Supreme Court also clarified that the purpose and relative normality of the care regime or the person's compliance or lack of objection to the care regime was not relevant when making a determination about deprivation of liberty.


The Supreme Court held that a deprivation of liberty in domestic settings (such as Supported Living and Adult Placement), where the State was responsible for imposing such arrangements, must be authorised by the Court of Protection.


The effect of these changes provided a substantial increase in the number of people who required the protection of the DoLS or the Court of Protection. 


In common with other local authorities, Adult Services in the Vale of Glamorgan had not been able to ensure that these arrangements had been put in place with immediate effect.  Since the Court ruling on 19 March, 2014, the number of requests for authorisations had risen significantly.  The number in June 2014 was 224, compared to 12 in June 2013. 


In these circumstances, a planned approach to implementation through appropriate prioritisation had been the only realistic option.  Additionally, Vale of Glamorgan staff had made representations through Association of Directors for Social Services Cymru to ensure that the issues and the increased costs had been considered by Welsh Government.


The DoLS team was jointly funded by the Vale of Glamorgan Council, the City of Cardiff Council and the Cardiff and Vale University Health Board according to the formula shown in Table 1 below (based on predicted workload demand).  The cost of any additional resources in the DoLS team would be distributed across the three organisations.


Table 1



  Total Cost

Vale of Glamorgan



City of Cardiff



Cardiff and Vale UHB




This was a matter for Executive decision.




(1)       T H A T the implications of the Supreme Court Ruling and the potential increased risk of legal challenge to local authorities be noted.


(2)       T H A T, when planning the budget for Adult Services, the increased financial liabilities placed upon the Council as a result of the Supreme Court Ruling be considered.


(3)       T H A T the report be referred to Scrutiny Committee (Social Care and Health) for information.


(4)       T H A T the Council make representations to the Welsh Local Government Association and Welsh Government in relation to the financial implications of the Supreme Court Ruling.


Reasons for decisions


(1)       To be aware that the Supreme Court Ruling extended the scope of the Deprivation of Liberty Safeguards, which meant that a local authority had a duty to ensure that all care arrangements for people lacking mental capacity did not deprive anybody of their liberty without an independent legal process to authorise the care regime.


(2)       To be aware of the increased financial pressures upon the Council and upon Adult Services as a result of the Ruling.


(3)       To ensure that the matter received appropriate oversight and scrutiny.


(4)       To ensure the WLGA and WG were aware of the Councils views on the financial implications of the Supreme Court Ruling.


Attached as Appendix – Report to Cabinet 28 JULY 2014