‘Chronic’ DoLS backlogs leaving many without human rights protections, warns CQC

“Chronic” Deprivation of Liberty Safeguards (DoLS) backlogs are leaving many people without the human rights protections the system was designed to provide, the Care Quality Commission has warned.

People will continue to be failed without “urgent action” to overhaul a system that “has needed reform for over 10 years”, the CQC said, in a damning verdict on DoLS, delivered in its annual State of Care report, published last week.

The regulator found councils lacked sufficient assessors to deal with the volume of cases they received from care homes and hospitals, but also identified a “wide variation” in how authorities managed applications and in backlog levels.

It also said that a lack of knowledge of the DoLS, and the wider Mental Capacity Act 2005 (MCA), among provider staff was leading to unnecessary DoLS applications and overly restrictive practices in relation to people needing care and support.

A mounting DoLS caseload

The report comes ten years after a House of Lords committee dubbed the DoLS “not fit for purpose” on the grounds that thousands of people were being unlawfully deprived of their liberty without safeguards. At the time, councils in England were receiving about 13,000 applications a year.

In the same month as the committee’s report, the Supreme Court’s landmark Cheshire West judgment widened the definition of a deprivation of liberty, resulting in a tenfold rise in the number of DoLS cases from 2013-14 and 2014-15.

Application numbers have continued to mount since, reaching a record 332,455 in 2023-24. While councils have vastly increased the number of cases processed over the same time – with a record 323,870 completed in 2023-24 – this has not stopped a huge backlog emerging, with 123,790 cases left incomplete as of 31 March 2024.

Planned reform stalled

Despite legislation to replace the DoLS with a more streamlined system – the Liberty Protection Safeguards – passing into law in 2019, the Conservatives failed to implement this, while Labour has given no indication, as yet, that it will do so.

“At present, it is unclear when or if the LPS reforms will be implemented,” said the CQC. “We are keen to establish a dialogue with the new government about this.”

The CQC said the issues raised by the Lords committee in 2014 had been “exacerbated by the stark increase in the volume of applications” since.

Like several previous reports, it highlighted that, because of the backlogs, many people were being deprived of their liberty unlawfully, without the safeguards required by the European Convention on Human Rights that are supposed to be provided by DoLS.

Lack of assessors ‘a primary barrier to performance’

Based on a survey of the National DoLS Leads Network, the CQC heard “widespread concern” that councils were “often significantly under-resourced” to deal with caseloads, as their funding had not kept pace with the increasing number of people requiring assessments.

It found that a lack of assessors, many of whom are social workers working as best interests assessors (BIAs), was a “primary barrier to performance”. Many councils were struggling to recruit and several were “relying significantly on independent assessors to manage the volume of applications”.

Some respondents also reported high turnover, describing DoLS as a practice area in which practitioners either thrived or, more often, left the service.

‘Wide variation’ in local authority approach

The CQC found significant differences in backlog levels, driven by factors including budgets, demography and the numbers of care homes and hospitals in an area, but also said there was also a “wide variation” in how councils managed applications.

Many were making use of the Association of Directors of Adult Social Services’ (ADASS) screening tool to prioritise applications. This grades applications into higher, medium or lower priority, based on factors such as whether the person was actively objecting to their arrangements, the level of restraint or sedation they were experiencing and whether they were in a settled placement.

However, the CQC said it was concerned that certain groups, such as people with dementia or learning disabilities, risked facing disproportionate levels of delay due to being classified as lower priority.

The tool was also reliant on councils receiving detailed, accurate applications from care homes or hospitals, which some authorities were not confident that they were given.

Lack of DoLS knowledge among provider staff

Councils also told the CQC that a lack of knowledge among provider staff was an ongoing factor contributing to delay, either because of unnecessary applications being made or authorities having to go back to the provider to seek further information.

“This risks people who need the safeguards getting lost in the high volume of referrals, or not having an application made when they need one,” the regulator said.

The CQC saw examples of applications that did not include mental capacity assessments, did not specify what and why specific restrictions were needed and failed to acknowledge less obvious restrictions that were already being implemented, such as sensor movement trackers or bed rails.

There was a “misconception among some providers that a DoLS application equated to an authorisation being in place”, while in a few services, providers were applying blanket restrictions that deprived all residents of liberty, despite this not being necessary for everyone.

Poor understanding of MCA

The CQC also found issues with providers’ understanding of the MCA more generally. For examples, in some services, there were cases of organisations assuming that, because a person lacked capacity to make one decision, they were unable to make all decisions, contrary to the requirement for capacity assessments to be time- and decision-specific.

In some services for people with learning disabilities or autistic people, there was a lack of consideration of the least restrictive option when making decisions, contrary to the fifth principle of the MCA.

Analysis of 139 CQC decisions to refuse providers’ applications to register, or to impose conditions on registrations, found 66 related to the MCA, nearly all of which were due to a lack of knowledge of the act.

Other issues raised in the report included poor communication with those subject to a DoLS application or their family members, including because of lack of interpreting services or tools to support non-verbal communication.

Reform urgently needed, says CQC

However, despite the many practice issues it raised, the CQC concluded by calling for urgent reform to the DoLS.

“The DoLS system has needed reform for over 10 years,” it said.

“Unless there is substantial intervention, we are concerned that these challenges will continue, leaving people at the heart of this process without the key human rights safeguards that the DoLS system was intended to offer.”