ADASS responds to Supreme Court ruling on Deprivation of Liberty Safeguards

On June 2, the Supreme Court overruled the Cheshire West ruling on the meaning of deprivation of liberty. Rashpal Bishop is the Executive Director of Adults, Social Care and Health at Sandwell Council and the ADASS Vice President. She is also the ADASS Lead on Deprivation of Liberty Safeguards, and responds to the judgement.

We will continually update our guidance as more information or advice becomes available.

Rashpal Bishop said: “The Deprivation of Liberty Safeguards (DoLS) system will continue to be needed but will in time focus on a smaller group of people who are likely to be unhappy with their care arrangements and are actively objecting to their placement, or where the restrictions are extreme and there is a need to provide the legal safeguards and the ability to challenge their detention.

“Along with making sure people who are still deprived of their liberty have access to the right safeguards, we recognise that the other significant risk to organisations actually arises from those people who have been assessed and have authorisations in place prior to the judgement. These people may no longer need the DoLS authorisation and this will also need to be considered. We will be working with the Department for Health and Social Care (DHSC) and other sector leaders to make sure care providers understand that whilst having a deprivation of liberty safeguard in place enables them to deprive a person of their liberty, this doesn’t need to be enforced if it isn’t necessary.

“There will be a period of time whilst we consider how to manage and review the large numbers of people whose authorisations are already in the system. We believe work on these cases can be paused whilst guidance is developed and agreed. 

“I remain optimistic that in time these changes will allow the refocusing of resources on those people most in need. This is not only financial resources but the workforce resource of Best Interest Assessors who will be able in the future to share their expertise with the wider workforce. DoLS Leads and assessors have gone above and beyond since the decision in Cheshire West, working with expediential rises in numbers and no additional funding, we are extremely grateful and proud of their dedication.

“In terms of people’s rights, DoLS are just one legal framework and the Care Act, The Human Rights Act and above all the Mental Capacity Act provide great protections and also empowerment for people with impaired mental capacity.

“The judgement provided a welcome reminder that the European convention focuses on the rights of all people to be treated with dignity and to have their voices heard and we welcome the focus on a concept of valid consent even where the person lacks decision specific capacity.

“The ruling provides the potential for reducing backlogs and reducing numbers of applications, but this will not be instantaneous but will be spread over time. In the immediate aftermath of the decision there will be a need for potentially even more resources to see Councils through this period of transition.  

“We recommend a cautious approach to implementation, that we wait for guidance from DHSC and a time of reflection to evaluate the full implications of the judgment before producing operational guidance. Urgent situations will always require an immediate response but there will need to be a period of time digesting such a complex judgement and such a seismic change and ensuring any processes are legally compliant and sustainable for the future operating model of DoLS.”