To provide the committee with information about:

·         the current approach taken by the council in relation to Deprivation of Liberty Safeguards (DoLS) and how they are delivered

·         the approach taken by the council to manage risks in relation to the Deprivation of Liberty Safeguards

in order that the committee may determine any recommendations it wishes to make to the executive with a view to further mitigating risks and securing improvement.

The specialist services manager presented her report which highlighted the current position with regard to deprivation of liberty safeguards (DOLS).

She explained that the purpose of DOLS was to protect members of the public in hospital or residential or nursing home settings where they lacked capacity to agree to be there. DOLS did not apply to people outside of a registered care home or hospital setting.

By way of background, she made the following points:

·         DOLS had been in place since 2008 in response to changes to the Mental Health Act to address a gap in the law, known as the Bournewood gap, where there was no legal process to legally authorise someone’s deprivation of liberty as a requirement of the Human Rights Act.

·         The initial common assumption had been that DOLS applied where someone objected to the arrangements made on their behalf, but in 2014 major case law redefined DOLS and determined that the objection was not the over-riding or relevant factor but whether or not someone was free to leave; whether the person had continuous supervision; or was under continuous care which infringed or restricted them. 

·         This meant that more people met the criteria and this had significant implications in Herefordshire where casework increased 15-fold compared with 10-fold nationally. This led to local authorities being unable to meet demand and therefore meet legal responsibilities within required timeframes, resulting in backlogs. In Herefordshire this backlog had reached nearly 600 cases but despite pressures, had now reduced to 290.

The manager described how the arrangements worked locally:

·         The backlog was carefully triaged in terms of risks to the individual, using the ADASS prioritisation tool to ensure people at high risk were assessed in a timely manner.

·         The triage system looked at a range of factors as they affected the individual, including the level of restrictions, the family’s and power of attorney’s views and safeguarding issues, to reduce impact of restrictions.

·         The process was intensive and involved 6 assessments, which covered age, mental capacity, whether there was anyone who was granted powers such as lasting power of attorney, who it was that was objecting, doctor’s eligibility assessment, doctor’s mental health assessment, and best interest assessment to determine that criteria was met and that it was in the person’s interest and proportionate to the risk of harm.

·         The process was complex, and required a senior officer for final authorisation. The authorisation could last up to 12 months, after which, if the person were in the same setting, it would be necessary to repeat the process. Although a streamlined process was in place to make it quicker, it still took time to evidence the 6 assessments.

·         The requirements meant that the process took time and effort for the 13000 referrals, with a backlog of 290, although compared with other authorities, this was good service performance. 

The director for adults and wellbeing commented that some councils had invested funding to clear their backlogs but the funding had to be sustained to keep up with  ...  view the full minutes text for item 7