Court applications made for deprivation of liberty reached record high numbers in the first quarter of this year.
Minister of Justice (MoJ) figures show that the Court of Protection (CoP) in England received just over 2,000 applications regarding deprivation of liberty under the Mental Capacity Act 2005 (MCA) from January to March 2024.
This represents a 30% increase on the same period last year and a record high.
Community Care reports that the Court of Protection received 2,022 deprivation of liberty applications during the first three months of 2024, which is the highest figure ever recorded in the MoJ’s family justice statistics series and a third higher than the quarterly average since April 2020 (which sits at 1,526).
The applications included challenges to existing Deprivation of Liberty Safeguards (DoLS) authorisations as well as applications from local authorities and other bodies to confine individuals who are not covered by DoLS, such as 16 and 17-year-olds and adults who are not currently in care homes or hospitals, but resident in supported living or shared lives settings.
Rise in deprivation of liberty applications due to new process
One driver for the spike in case numbers were so-called Re X applications. These offer a streamlined procedure for the CoP to authorise deprivations of liberty outside the scope of DoLS, where the case is not contentious.
There were 1,211 such cases from January to March 2024, which is the second highest quarterly total ever and 27% higher than the four-year average for this type of application.
CoP applications have risen since the Supreme Court’s landmark 2014 Cheshire West judgment, which significantly expanded the definition of a deprivation of liberty.
The Re X procedure was developed in response to this, enabling the Court to authorise a deprivation of liberty under the MCA – in cases where DoLS does not apply – without the requirement for a hearing, as long as the case is not contentious.
Most applicants are local authorities or NHS bodies. They must still provide evidence to the Court that the person:
- has been assessed by a doctor as having a mental health condition
- has been assessed as lacking capacity to make relevant decisions about their care and residence
- is deprived of their liberty, that this is in their best interests, necessary to protect them from harm and a proportionate response to the expected harm
Applicants must also show that they have consulted the individual or anyone named by them as requiring consultation, any carer, anyone interested in their welfare or any attorney or deputy. They must also nominate someone to act as a court-appointed representative to help uphold the rights of the individual during the process.
The Re X process cannot be used where the individual is objecting to the placement or contesting aspects of the application. It is also judged to be unsuitable for cases involving 16 and 17-year-olds.
Cases not deemed appropriate for the streamlined Re X process should be presented to the Court for a personal welfare decision under section 16(2)(a) of the MCA.
The number of these applications also rose, numbering 158 from January to March 2024, compared with an average of 117 over the past four years.
Rise in challenges to deprivation of liberty
However, the biggest increase in applications was seen under challenges to DoLS authorisations. From January to March 2024, there were 653 applications to vary or terminate DoLS authorisations, which is 43% above the four-year average.
Such challenges have been steadily rising in recent years, with a quarterly average of 447.5 in 2021, 475.8 in 2022 and 512 in 2023.
Community Care says that the increase in challenges can partly be explained by the increase in the number of people subject to DoLS in England, with 126,995 authorisations granted during 2022-23, compared to 105,225 in 2020-21.
Liberty Protection Safeguards remain on the shelf
The record number of deprivation of liberty applications reflects record levels of DoLS cases.
Community Care asserts that the high case numbers are adding to intense pressures faced by councils and the rest of the health and social care system in England.
The Liberty Protection Safeguards (LPS), defined in legislation back in 2019, were originally developed to address these pressures and create a new streamlined system as an alternative to both DoLS and the CoP-authorised deprivations of liberty.
But implementation of the LPS was repeatedly delayed until finally being shelved last year until past the upcoming general election. Currently, neither Labour nor the Conservatives have outlined any plans to implement the LPS in their manifestos.
Training in Mental Capacity Act and DoLS is vital
First Response Training (FRT) is a leading national training provider. They deliver a wide range of high-quality training to over 50,000 learners annually, working with thousands of organisations and businesses across all sectors.
Their diverse portfolio includes training in the fields of health and safety, first aid, fire safety, food hygiene, health and social care and other special focus topics.
Their health and social care range includes Care Certificate and Mandatory Training for new workers, as well as a range of Special Focus and Clinical Skills Awards mapped to the CQC fundamental standards and the RQF units as well as further training for managers, supervisors and assessors.
Their portfolio includes training in subjects such as the Mental Capacity Act, Dementia Awareness, Person Centred Care and Support, Promoting Dignity in Care, Duty of Care, Effective Communication and Safeguarding Adults, among many others.
A Health and Social Care Trainer at FRT explains:
“It’s important that practitioners fully understand the law relating to the Mental Capacity Act and Deprivation of Liberty Safeguards and how to apply it in practice, and that they can deliver effective, personalised care and ensure that individual’s wishes are taken into account and respected. Regular training is required to ensure this.”
For more information on the training services that FRT can provide, please call them today on freephone 0800 310 2300 or send an e-mail to info@firstresponsetraining.com.
The Care Quality Commission (CQC) offers advice and guidance about the Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards on their website.
You can download our Guide to the Liberty Protection Safeguards here.