The DoLS backlog is out of control – What should Supervisory Bodies do?

Related Sector: Health & Social Care

DoLS are here to stay, at least for the “life of this Parliament” and so, it seems, are the backlogs which followed the Cheshire West judgment in 2014. According to NHS digital, English Councils received a 5.5% rise in the number of DoLS applications in 2021-22 and the backlog itself increased by around 16,000 cases.

This increasingly dire situation is resulting in tens of thousands of the most vulnerable people in our society to have unlawful restrictions placed on their liberty for far longer than the statutorily allowed period. It is also clearly untenable and requires resolving before matters escalate even further. With the only possible solution (LPS) being kicked into the long grass, what should Supervisory Bodies do now?

The Local Government and Social Care Ombudsman, whilst investigating another complaint, became aware of significant delays in Surrey County Council completing DoLS assessments and so began an investigation into how extensive those delays were. Their final report was published last week. It appears that Surrey may well be the Local Authority with the highest DoLS backlog in England, but the report provides sobering reading for any Chief Executive.

The Ombudsman acknowledges that many councils are struggling with DoLS requests and a lack of resources to meet them, but observes that if statutory timescales are not met, injustice and unlawful restrictions on liberty occur.

Surrey County Council must now create an action plan detailing how they are going to address their delays and consider making financial remedies to those who have been adversely affected. Such action plan must be available within 3 months of the Ombudsman’s final decision. This is clearly going to involve Surrey in significant financial and resources outlay at a time when it is already struggling.  Many in local government may well wonder if they might be next.

There really is only one solution to this problem. The rate of DoLS assessments needs to increase to exceed the number of DoLS requests. The only way to do that is for Supervisory Bodies to bite the financial bullet (before it is bitten for them) and employ or train more Best Interest Assessors.

As the Ombudsman observes “we cannot remedy the injustice that may have occurred to those who have died without a DoLS authorisation being assessed, who have had unlawful restrictions on their liberty”, but we can all certain take significant steps right now to ensure that the injustice is not perpetuated for any longer than it needs to be.

Author: Max Duddles

This article was first published on 17 July 2023