Vulnerable Wigan residents left in limbo for months

The mental health charity Mind says the lack of legal safeguards for people subject to deprivation of liberty applications constitutes a “disgraceful breach of human rights”.

Wigan Council say they are working to address the backlog and extra staff have been drafted in with others undergoing training.

Hospitals and care homes must apply to councils for permission to restrict freedom of anyone deemed to lack the mental capacity to make decisions about their care, such as those with dementia or mental health problems.

There is currently a legal maximum time limit of 21 days for applications to be processed – but experts say insufficient funding combined with huge demand has left councils across England struggling to cope.

Wigan Borough Council had 360 applications outstanding at the end of March 2019, the latest NHS Digital figures show, of which 90 (24 per cent) had been sitting in limbo for at least six months.

Of these, 13 had been stuck in the system for more than a year. There can be a number of reasons as to why this is and doesn’t necessarily mean an individual has been waiting for over a year. One reason could be a change in circumstances meaning the application is no longer needed.

Once an application has been approved, the person subject to it is granted legal protections, including the right to appeal the decision and have the restrictions imposed on them regularly reviewed.

But experts have raised concerns that people with live applications are being denied these protections – and in some cases may be facing restrictions which will be considered unnecessary.

Alison Cobb, specialist policy advisor at Mind, said: “It is a disgraceful breach of human rights that people are having their freedom taken away without legal safeguards while they wait a year or longer for their application to be processed.

“This can mean that they have to endure unnecessary delays to being placed in the best care setting for them, which would help to protect them from harm.”

In Wigan, 45 per cent of all the applications completed in 2018-19 resulted in the deprivation of liberty being refused – 865 cases in total.

Of these, 25 were because the criteria had not been met, while 595 were the result of the person’s circumstances having changed while the application was processed.

The average processing time for all completed applications was 169 days – 24 weeks – while the longest took 1,326 days.

Only 13 per cent of applications were completed within the statutory 21 days.

Sharon Barber, director of integrated community services at Wigan Council said: “Over the last year, our team of ‘Best Interest Assessors’, who respond to the deprivation of liberty applications, has increased by eight, meaning we currently have a total of 35 assessors . We also have another 12 candidates completing training so we can develop the service

further.

“In order to manage urgent requests, we work with external best interest assessors and welcome specific input from our hospital colleagues, which helps us to meet demand.

“Despite having some of the best response rates in the region, we continue to identify ways we can improve the service, including encouraging nurses to undertake the relevant training so hospital teams are skilled in and able to support with these assessments.

“Although we’re aware there is always room for improvement, it’s important to be clear that this is a national issue and is not unique to Wigan, but through partnership working, we are confident none of our residents are at risk. We remain proud of the management of this statutory assessment duty in Wigan and will continue to robustly manage demand with our partners in a safe way so residents can live full and healthy lives.”

The council said it has a strong relationship with Wigan Family Welfare who provide our Independent Mental Capacity Advocate service and it has recently provided additional funding to manage increase in demand.

It added that the statistics were not reflective of the work taking place behind the scenes.

Polly Sweeney, chair of the mental health and learning disability committee at the Law Society, said she had come across cases with significant delays in which the person was found to have had sufficient mental capacity all along.

The number of applications received by councils across England has rocketed following a 2014 Supreme Court ruling lowering the threshold for what constitutes a ‘deprivation of liberty’, rising from 13,715 in 2013-14 to 240,455 last year.

There were 131,350 outstanding applications across England at the end of March – 39 per cent of them more than a year old. The current arrangements – described as “not fit for purpose” by the Local Government Association – is set to be replaced by a simplified system later in 2020, which will shift some of the responsibility away from

councils.

Ms Sweeney said concerns remained about funding however, while Mind said it was crucial the Government did not replace “one broken system with another”.

A Department of Health and Social Care spokesman said: “We are committed to ensuring people who lack capacity and may be at risk of being unlawfully deprived of their liberty are cared for safely and compassionately, which is why we are reforming the current system by introducing Liberty Protection Safeguards.

“Liberty Protection Safeguards will improve protections for these groups, while providing regular reviews of their care and bolster the right to independent advocacy.”