In the first of our blog mini-series on Court of Protection Deprivation of Liberty (CoPDoL), Fergus Campbell, NHS Midlands and Lancashire’s (NHS ML) Clinical Lead for Court of Protection / Mental capacity Act and a qualified social worker, considers the rising numbers of Deprivation of Liberty Safeguards (DoLS) applications made to the high court.

Liberty Protection Safeguards

The Liberty Protection Safeguards (LPS) were introduced in the Mental Capacity (Amendment) Act 2019. However, in April 2023 the government announced a delay to the implementation of LPS. With a new government unlikely to announce proposals soon, the current DoLS framework remains in place. If a person aged 18 or over is being deprived of their liberty in a care home or a hospital, DoLS authorisation is required, and an application will be made to the relevant local authority. 

Following a judgment by the supreme court in 2014, P v Cheshire West & Chester Council [2014]; P & Q v Surrey County Council [2014] UKSC 19, colloquially known as ‘Cheshire West’, a person can also be deprived of their liberty in the community, such as their own home or alternative care provision, if the person lacks the ability to consent to their care arrangements and their care arrangements meet the ‘acid test’.  

In such circumstances, an application needs to be made to the Court of Protection (CoP). Responsibility for such applications sits with the responsible commissioner for that individual’s care arrangements.

If the care is being funded through local authority funding, it would be the local authority (LA) who is responsible for the application. If the funding is from the NHS, then in England, the local integrated care board (ICB) would be responsible for making the application. 

For individuals who have joint funding, such as Section 117 aftercare under the Mental Health Act 1983, the application will be a joint responsibility of the ICB and LA. 

NHS England Digital published a report on 22 August 2024 which identified that there was a backlog of 123,790 uncompleted DoLS cases in England as of 31 March 2024. The report also highlighted a total of 332,455 applications received during this period, an increase of 11% from the year before [1]. However, the number of deprivation of liberty applications has grown consistently since as far back as 2011. The Ministry of Justice published their report on 26 September 2024 which stated that the Court of Protection received 1,831 applications about deprivation of liberty from April to June 2024, an increase of 28% on the number made in the same quarter in 2023, with 1,010 orders made in the same period [2].

While the number of CoPDoL applications is known, the number of individuals deprived of their liberty in the community without an authorised DoL is unknown, as this information is not reported at a national level. Given the significant increase in CoPDoL applications over the last 13 years and an estimated 800,000 individuals receiving care at home in England, it is likely that some are being deprived of their liberty without the appropriate legal frameworks in place.

Though a DoLS would not be relevant in many of these circumstances, it is anticipated that this number will continue to rise, given the need to annually renew all applications to ensure legislative responsibilities are met, and the best interests of the individual receiving care are maintained.

Our support for you

At NHS ML, we have a specialist team of Court of Protection practitioners and best interests assessors who can assist public bodies with a wide range of Court of Protection matters, including:

– Identifying deprivations of liberty

– Deprivation of liberty applications

– Capacity assessments

– Best interests assessments

– Decision making  

If your CoPDoL caseload is growing, ML is here to help. As part of the NHS, we can deliver a robust, efficient CoPDoL service to supplement your current activity, relieve the pressure on your teams and systems, and deliver the best value for every pound spent within our NHS.

Drop us an email and we’ll get in touch to see how we can help. 

Contact details

E: mlcsu.personalisedhealthcare@nhs.net  

W: https://www.midlandsandlancashirecsu.nhs.uk/personalised-healthcare-commissioning-services/our-services/

References

1. https://digital.nhs.uk/data-and-information/publications/statistical/mental-capacity-act-2005-deprivation-of-liberty-safeguards-assessments/2023-24#highlights [Accessed 23 August 2024]

2. https://www.gov.uk/government/statistics/family-court-statistics-quarterly-january-to-march-2024/family-court-statistics-quarterly-january-to-march-2024#mental-capacity-act—court-of-protection [Accessed 23 August 2024]