Summary: The Council failed to assess Deprivation of Liberty Safeguards requests in accordance with the timescales set out in the Mental Capacity Act regulations. People may have been restricted unnecessarily or wrongly deprived of their liberty. The Council has agreed our recommendation to address the delays.

The complaint

1. As a result of an investigation into another complaint, we became aware of significant delays by the Council in completing Deprivation of Liberty Safeguards assessments. The delays are likely to have caused uncertainty and frustration. In some cases, people may have been wrongly deprived of their liberty, or subject to more restrictive measures than necessary.

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The Ombudsman’s role and powers

2. We may investigate matters coming to our attention during an investigation, if we consider that a member of the public who has not complained may have suffered an injustice as a result. (Local Government Act 1974, section 26D and 34E, as amended)
3. The Ombudsman has the power to make recommendations to remedy the injustice experienced by complainants and members of the public affected by fault we identify. (Local Government Act 1974 31 (2B)).
4. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I considered information the Council provided during another investigation we conducted. I also considered figures provided by NHS Digital regarding the Council’s handling of DoLS requests during 2021-2022.
6. I considered our guidance on remedies.
7. The Council had an opportunity to comment on my draft decision. I considered its comments before making a final decision.

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What I found

The Deprivation of Liberty Safeguards

8. The Deprivation of Liberty Safeguards (DoLS) are an amendment to the Mental Capacity Act 2005. They provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure for getting authorisation to deprive an individual of their liberty.
9. Without authorisation, a deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation. The ‘managing authority’ of the care must request authorisation from the ‘supervisory body’ (the Council). There must be a request and an authorisation before a person is lawfully deprived of his or her liberty.
10. There are two types of authorisation. Urgent authorisations are made by the managing authority of the care home, for seven days, pending application for a standard authorisation. Standard authorisations are made by the Council.
11. On application, the supervisory body must carry out assessments of the six relevant criteria: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’ requirements. A minimum of two assessors, usually including a social worker or care worker, sometimes a psychiatrist or other medical person, must complete the six assessments. They should do so within 21 days, or, where an urgent authorisation has been given, before the urgent authorisation expires.

National context

12. The Supreme Court decided on 19 March 2014, in the case of P v Cheshire West and Chester Council and another and P and Q v Surrey County Council, that deprivation of liberty occurs when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.
13. The 2014 Supreme Court judgment resulted in a significant increase in DoLS requests to local authorities across England. According to NHS Digital official statistics, there were 13,000 DoLS requests in England in 2013/14. In 2014/15, there was a tenfold increase to about 137,000 requests.
14. The latest NHS Digital statistics say councils in England:
• received about 267,080 DoLS requests in 2021/22; and
• had backlogs totalling about 122,095 requests including 35% (about 43,120) which had been outstanding for more than a year.
15. In response to the increase in demand for DoLS assessments, the Association Of Directors Of Adult Social Services in England (ADASS) has published a screening tool to help councils prioritise DoLS requests. ADASS’s introduction to the guidance cautions that the “use of this tool must be balanced against the legal criteria for the Deprivation of Liberty Safeguards which remains unchanged”. The tool suggests criteria for prioritising requests into ‘higher’, ‘medium’ and ‘lower’ priorities. It does not suggest that councils should not carry out assessments for requests classed as medium or lower priority.

What happened

16. While investigating another complaint we became aware of significant delays by the Council in assessing DoLS requests.
17. I consider that others may be affected by these significant delays. Therefore, I opened a separate investigation regarding the potential impact on others due to delays by the Council in completing DoLS authorisations.

NHS Digital Information

18. Information about Councils’ handling of DoLS requests is contained in NHS Digital figures for England. These figures show that Surrey County Council had 5700 outstanding DoLS requests on 31 March 2022. This is the highest backlog in England.
19. The Council’s backlog increased by 600 during 2021/22.
20. The NHS Digital figures show the mean duration to complete a DoLS assessment in England is 154 days. However, the mean duration for the Council to complete a DoLS assessment is 345 days.
21. The Council completed only 7.6% of the standard requests it received within 21 days. In England the average number of standard requests completed within 21 days is 20.4%.
22. During 2021/22 the Council assessed and made decisions on 3700 requests. Of these decisions the Council
• granted 840 requests
• did not grant 1320 requests because the person had died.
• did not grant 1400 a further requests because of a change in the person’s circumstances, such as a change in care home. A new DoLS request would need to be submitted.

Was there fault?

23. We understand that many councils are struggling with the number of DoLS requests they receive and the lack of resources to address this. The Council appears to be following ADASS advice on prioritising cases. However, the statutory timescales as set out in paragraph 10 still apply, and planned new legislation has not been introduced that may change these requirements.
24. Based on the statistics that I have seen the Council is failing to issue DoLs authorisations within the statutory timescales and in many cases the delay is so significant that the person has moved to another care or nursing home, or has died without the Council’s DoLS authorisation.
25. We cannot remedy the injustice that may have occurred to those who have died without a DoLS authorisation being assessed, who have had unlawful restrictions to their liberty.
26. However, there may be many people who, because of the Council’s delays in assessing DoLS requests, have had restrictions placed on them that were not the least restrictive options, had they been properly and promptly assessed.

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Agreed action

27. I recommended that within three months of my final decision the Council should create an action plan addressing the delays that have occurred in assessing DoLS requests. The Council should state how it will:
• Reduce the backlog of outstanding requests and
• Respond to ongoing new requests in a timely manner.
28. The action plan should consider a remedy in line with our published Guidance on Remedies for those cases where
• A request is not approved, and an unlawful deprivation of liberty has had a potentially harmful impact on that person.
• A request is approved but with less restrictive measures, and an unlawful restriction of liberty has had a potentially harmful impact on that person.
29. The Council should provide us with evidence it has complied with the above actions.
30. The Council has agreed my recommendations.

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Final decision

31. The Council has agreed to remedy the faults in this case. I have completed my investigation and closed the complaint.

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Investigator's decision on behalf of the Ombudsman