BUT THIS IS NOT the only story. There have been other stand-out challenges that have been faced: for  example - how the sector pulled together to ensure the continuity and reassurance of care for over 33,000 older people in the maelstrom of the collapse of Southern Cross. Or how adult social care embraced and championed personalisation, with now 80 per cent of service users exercising real choice and independence.

These examples of innovation and creativity are all a consequence of the leadership and culture within local government. Unrestrained largely by central diktat, local government does what it says on the  tin - locally governs. Staff are encouraged to think out of the box and the work of organisations such as ADASS help to harness this creativity in a local, regional and national context.

The Supreme Court Judgment earlier this year regarding Deprivation of Liberty Safeguards (DoLS) is a more recent example of widespread change and challenges to face the sector, and the response has been equal in measure and magnitude.

Earlier this year the Supreme Court Judgment substantially widened, overnight, the number of people legally subject to DoLS. And while nobody disputes the moral imperative of protecting and upholding human rights, the impact on councils to respond appropriately  to increased activity cannot be ignored.

The consequences of the judgment are multiple and could be described as creating the conditions for a `perfect storm’ - increasing referrals and ongoing reviews. No compensating additional resource. Individuals’ rights not being addressed. Threat of legal challenge as response to referrals exceed statutory time scales. Reduced capacity to respond to increased referrals, and so on…

The evidence to describe the worsening scenario is plain to see. ADASS undertook a snapshot survey in April 2014 where councils anticipated the Supreme Court judgment would cost them an additional £88 million in 14/15 to uphold and protect the rights of individuals. These were not just the cost of dealing with additional referrals, but also the built-in costs of having to secure and train additional best interest assessors.  

This evidence has recently been triangulated by the voluntary collection of DoLS activity, collated and  reported by the NHS Information Centre. These quarterly data point to a sustained increase between April and June 2014 at a pace and scale that outstrips current capacity pegged to the DoLs grant levels set out by the government.

So what about this innovation and creativity?  The ADASS response was almost immediate as the activity level began to jump, and the reaction took a number of various routes.

Firstly, with the valued support of LGA, ADASS became party to a review of the judgment by the Court of Protection. In this legal setting we presented evidence, drawing upon the ADASS survey, as well as presenting a proposal to fast-track DoLS cases through the courts by streamlining the process. 

The outcome of the Court of Protection hearing had identified the process for submitting requests from community settings. This is a new area of  work for local authorities and therefore the ADASS task force has extended its time limited role in order to have a meeting specifically to give some guidance around this.

Secondly, again with the LGA, we have presented evidence of the financial impacts of the judgement to the Secretary of State for Health and have sought an urgent government twin-tracked response both to meeting fully the additional burdens  and to  reviewing existing legislation to minimise burdens and make the system more effective and efficient.

The government has previously instructed the Law Commission to review current  DoLS legislation in relation to clarifying its application to include community and hospital settings. The outcomes of this review is not expected until 2017. While this review is welcomed, we have stressed that this does not deal with the urgency of the situation, particularly the inconsistency of dealing with DoLS referrals between residential and community settings and how councils can contribute to making the system more effective for the public purse and - importantly - for individuals.

These discussions are  both detailed and ongoing. We are hopeful that the government will honour its commitment to meet new burdens and will simplify the system to make  more effective and efficient.

Finally, ADASS has stepped into the space of leading a practical response, leading a taskforce to include representatives across the ADASS DoLS networks, DH, NHS England and providers. The Taskforce has already begun making a difference in terms of sharing good practice, developing support tools and seeking ways to maximise scarce resources and capacity.

However, the  situation is predicted to get tougher and much now relies upon the government making a positive response. Practical solutions are a mere sticking plaster  without the backing of adequate resources to meet the ambitions of ensuring individuals rights are protected, upheld and promoted.

Sarah Norman
Joint Chair
ADASS Mental Health Network Chair, and Policy Lead

The outcome of the Court of Protection hearing had identified the process for submitting requests from community settings. This is a new area of  work for local authorities and therefore the ADASS task force has extended its time limited role in order to have a meeting specifically to give some guidance around this.