Tens of thousands of vulnerable people stuck in limbo over deprivation of liberty applications

Tens of thousands of vulnerable people have been left in limbo for over a year while carers applied to strip them of their freedom.

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”.

Hospitals and care homes must apply to councils for permission to take away the 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.

Councils across the country had 131,350 applications outstanding at the end of March 2019, the latest NHS Digital figures show, of which 51,500 (39%) had been sitting in limbo for over a year.

A further 27,390 (21%) had been stuck in the system for more than six months.

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.

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 adviser 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.”

Across England, 46% of all the applications completed in 2018-19 resulted in the deprivation of liberty being refused, 99,065 cases in total.

Of these, 7,570 were because the criteria had not been met, while 57,590 were the result of the person’s circumstances having changed while the application was processed.

The average processing time for all completed applications was 147 days, or 21 weeks, while the longest took 2,931 days, more than eight years.

Only 22% of applications were completed within the statutory 21 days.

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 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.”

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