Sophie Maloney, specialist Court of Protection and community care solicitor notes some of the key concerns of the CQC in its annual report on the state of health and social care published on 20 October 2022 and provides some insight.
“Ongoing problems with the Deprivation of Liberty Safeguards process mean that some people are at risk of being unlawfully deprived of their liberty without the appropriate legal framework to protect them or their human rights” [pg9]
Even though someone may be placed in a care home with locked doors and need constant supervision by care staff to keep them safe, the arrangements may amount to a deprivation of their liberty – even if their family agree to the arrangements. It is important that any care arrangements are only as restrictive as necessary; that they are the least restrictive option to meet the person’s care needs.
The Deprivation of Liberty Safeguards (DOLS) are an important part of the Mental Capacity Act (MCA) 2005. They can be used in care homes and hospitals. Where someone lacks capacity to consent to their residence and care, the DOLS scheme is crucial in providing a safeguard to ensure that any deprivation of liberty only occurs if necessary, proportionate and in their best interests. There are a series of six assessments which must be undertaken before a DOLS authorisation is granted. This includes assessments by a psychiatrist and best interests assessor. Family members should be consulted when the best interests assessment is undertaken. It is important for family members to be aware that these assessments can be challenged.
The DOLS system also ensures that a Relevant Persons Representative (RPR) is appointed who must keep the arrangements under review and challenge the arrangements if necessary. For example, if someone is objecting to the arrangements and asking to return to their own home, or to a different care home closer to their family, the RPR must request a review and can instruct a Solicitor to issue an application to the Court of Protection to appeal the arrangements (a s21A appeal). Non-means tested legal aid is available for these cases.
If there are delays in granting a DOLS authorisation or one is not put in place, this is unlawful and takes away the safeguards and access to non-means tested legal aid to challenge care arrangements put in place by a local authority.
“It is reported that half a million people may be waiting either for an adult social care assessment, for care or a direct payment to begin, or for a review of their care” [pg 8].
The Care Act 2014 provides that assessments of need for social care must be undertaken “where it appears to a local authority that an adult may have needs for care and support”. This is called a needs assessment. It should identify any care needs that require support to be provided. This is a low threshold to trigger the assessment by a social worker – when the local authority is notified / it comes to their attention that someone may need care and support, they must undertake a needs assessment. The assessment should be done “over an appropriate and reasonable timescale” in accordance with the Care and Support Statutory Guidance. The Care Act also provides local authorities with powers to meet urgent care needs where they have not yet completed an assessment – the local authority should provide an immediate response and meet any urgent needs requiring support.
Failure to undertake needs assessments, or provide support to meet care needs, may be unlawful.
“There are large numbers of patients who are stuck in hospital longer than they need to be, due to a lack of available social care packages” [pg 21]
When someone is in hospital and it’s it appears to the NHS that they need care and support, they must give notice to the local authority - to enable a needs assessment to be done by a social worker. Discharge planning should commence at the earliest opportunity. The NHS must consult the patient and any carer before referring them for an assessment. If there are any doubts about the patient’s mental capacity to decide where to be discharged to and what care and support he / she requires, then mental capacity assessments must also be undertaken.
Wherever possible, people should be supported to return to their own home for the assessment to be done to avoid delays in discharge. Short term support should be funded to facilitate the return home with the assessment for longer-term care and support being done in the most appropriate setting and at the optimal time for the person.
“Mental health services are struggling to meet the needs of children and young people. This increases the risk of their symptoms worsening and people reaching crisis point – and then being cared for in unsuitable environments” [pg 9]
The privatisation of secure placements for children has led to a shortage of suitable placements available to local authorities. It is common for children to be placed in unsuitable placements due to a lack of suitable options. Children often end up in hospital when in crisis simply because there is no where else for them to go, and they may have reached crisis point due to the lack of care and support provided. There have been several reported cases of the courts refusing to approve (and authorise deprivations of liberty) at placements which are clearly unsuitable to meet the child’s needs.
Clinical Commissioning Groups were replaced with Integrated Care Systems in July 2022, with a view to delivering more joined-up care that better meets the needs of local people. The ICSs bring together NHS organisations, local authorities, and others to ensure a more collaborative approach to health and social care. The impact of this restructure is awaited and the extent to which this will improve the state of health and social care is unclear.
The combination of increased wages to retain staff, increased running costs and the withdrawal of government support for COVID-19, have increased financial pressures on social care. If financial pressures continue, capacity to deliver adult social care will further reduce which will in turn continue to put additional pressure on the NHS through the winter.
For further information about Stephensons’ Court of Protection department and how we can assist you, please contact 01616 966 229.