Almost 50,000 vulnerable people died without having their full legal safeguards in place last year, a report finds.
The backlog of over 100,000 Deprivation of Liberty Safeguard (DoLS) applications is also unlikely to ever be completed, according to Age UK.
Its report A Hidden Crisis investigates the treatment of those in care who have to relinquish their liberty so they can receive the care they need.
This process requires a DoLS application, which has to be completed by the local authority and involves checks to ensure the decision is in the best interests of the person involved. This application is designed to keep people who have lost their mental capacity safe. Usually, this is for people often suffering from dementia who are believed to need containment for their own safety.
The assessment then decides whether the deprivation of liberty is necessary and proportionate considering the person’s wellbeing.
Long waiting list for applications to be processed
However, there are long waiting lists for these applications to be signed off by local authorities. During 2022/23, there were 126,100 applications for those deemed to be in need that were not completed by local authorities.
Further, even when applications were finalised, it took an average of 156 days for a standard authorisation to be given.
The statutory timeframe for people to be told if their application is successful is 21 days. It’s an issue that mostly impacts older people too, with 84% of people subject to a DoLS aged over 65.
In that period, 49,325 people died who were waiting for an answer on their legal safeguards to be approved. The number of people waiting has remained high for over 10 years, where the estimated number by Age UK of people waiting was 100,000.
‘Legislation not fit for purpose’ in 2014
Age UK has raised concerns over the resources provided to social care from the Government and criticised the DoLS process, introduced in 2009.
In 2014, a House of Lords report said the “legislation is not fit for purpose” and, since 2020, a fresh Liberty Protection Safeguards plan has been delayed three times by the Government. At present, there is no date for the reforms to be in place, after mooted implementation dates of October 2020, April 2022 and April 2023 were shelved.
Caroline Abrahams CBE, Age UK charity director, said: “Personal liberty is part of our birthright and central to our understanding of what it means to live in a democracy, so it is profoundly shocking that so many older people with diminished capacity are living and dying without the proper legal protections for limiting their freedoms being in place.
“As a result, we risk the nightmare scenario that, somewhere, there’s an older person locked in their room in a care home, supposedly in their own best interests when, in practice, an objective assessment by a trained social worker would have found this not to be justified at all.
“We have also heard of cases in which a care home is reluctant to constrain the movements of an older person with dementia who is clearly at risk because they wander, without an order saying that this is legally okay.”
‘Shameful’ the House of Lords report hasn’t led to change
The Age UK director called for the Government to “properly fund” the social care system and criticised Parliament for continually “kicking prospect of reform into the long grass”.
Abrahams added: “It is shameful that more than 10 years after a House of Lords report said the system for protecting older people with diminished capacity was not fit for purpose, no decisive Government action has been taken to reform it. A waiting list that now stands at over 100,000 cases means that, today, the system is in complete disarray.
“The failure of successive Governments to grasp the nettle of ensuring there’s a functioning system for safeguarding older people’s liberty if they lose their mental capacity is symptomatic of their broader failure to reform and refinance social care.”
