A council has argued that the legislation dealing with when it is legitimate to deprive someone of their liberty is ‘no longer fit for purpose’ after being criticised by the social care ombudsman.

An investigation by the Local Government and Social Care Ombudsman found that vulnerable young people may have been deprived of their liberty because Staffordshire County Council had not carried out ‘proper assessments’.

Local authorities need to carry out certain assessments before responding to Deprivation of Liberty Safeguards (DoLS) requests by care homes and hospitals. These requests are made if it is believed depriving someone of their liberty is in that person’s best interests.

In May 2016, Staffordshire CC decided it would stop carrying out full assessments except in those cases it classified as high priority.

The council created its own guidance for ranking DoLS requests into three priority bands, based on guidance issued by the Association of Directors of Adult Social Services (ADASS).

Ombudsman Michael King found, however, that the council was using an adapted version of this guidance which resulted in fewer requests being categorised as high priority — a move which resulted in fewer requests being properly assessed.

Mr King said that the council made the decision because of a lack of finances and was not complying with relevant legislation and statutory guidance.

At the end of June 2018, the council had a backlog of 3,033 DoLS requests for which it had not carried out the proper assessments, with some dating back to August 2014.

Since May 2016 the council told Mr King it has closed nearly 2,000 applications without assessment because a person had died before one could take place.

‘Resource constraints can never be a legitimate reason for not carrying out the assessments required by law or statutory guidance,’ said Mr King.

‘While councils may decide how to prioritise cases, it is not acceptable that the only way low and medium priority applications are resolved is because the people involved move away or die.

‘Because the council does not assess the majority of requests we simply do not know if there are people waiting in the backlog who are wrongly being deprived of their liberty when they actually have capacity, or when less restrictive options are available.’

Responding to the Ombudsman’s report, Alan White, deputy leader of Staffordshire County Council and cabinet member for health, care and wellbeing, said that ‘no-one’s life or health has been put at risk because of the assessment policy.’

‘The Government and the Association of Directors of Adult Social Services have backed a prioritising approach and it is generally accepted that the current DoLS legislation is no longer fit for purpose,’ he said.

‘Regarding the implications of the Ombudsman’s findings, I would emphasise that no-one has complained about the prioritisation scheme, no individual has actually suffered injustice and we are not being asked to change what we do on a day-to-day basis until it’s time to implement the recommendations of the Government’s amendment to the Mental Capacity Act 2005, which will be next year at the earliest.’

The Ombudsman decided to investigate this matter after a complaint during which the council’s decision to focus the assessment process came to light.