Charities have voiced concern that assessments for vulnerable groups who cannot consent to their care arrangements are still often not being completed within legal timescales.
People aged over 18 in care homes and hospitals are protected by safeguards which mean authorisation must be sought before they can be deprived of their liberty, as a protection of their human rights.
But figures obtained from Care Inspectorate Wales (CIW) reveal around half (48%) of standard applications and two thirds (66%) of urgent applications for liberty deprivations – made by hospitals and care homes to councils and health boards- were not decided within statutory timescales in 2017/18.
This means many people were deprived of their liberty unlawfully, although the figures show an improvement on the previous year.
The CIW has written to councils across Wales about the issue in its annual review of social services.
Letters to Newport, Monmouthshire, Torfaen, Blaenau Gwent and Caerphilly County Borough councils say: “Our monitoring of the deprivation of liberty safeguards has identified the local authority, in common with many others in Wales, is unable to assure itself people’s human rights are not being breached by being deprived of their liberty unlawfully.
“We will continue to monitor this.”
The five Gwent authorities are part of a regional safeguarding team – the Gwent Deprivation of Liberty Safeguards Consortium – which includes the Aneurin Bevan University Health Board.
A spokeswoman for the consortium said it has developed a ‘screening tool’ to prioritise those people most at risk after a significant rise in referrals for liberty deprivations nationally.
The approach has been endorsed by Welsh Government and the Association of Directors of Social Services.
Current safeguards, under the Deprivation of Liberty Safeguards law, are due to be replaced by a new system in 2020 which will streamline the process for approving a deprivation of liberty.
Sue Phelps, country director at Alzheimer’s Society Cymru, said the present system has “long been criticised for being overly complex.”
“The Deprivation of Liberty Safeguards (DoLS) are a vital layer of protection for people with dementia when they are deprived of their liberty,” Ms Phelps said.
“However, all too often these measures are not enough and vulnerable people are restrained or locked up without process.”
Most people who needed to be deprived of their liberty in 2017/18 in Wales were female and over 65.
Louise Hughes, from Age Cymru, said it is ‘worrying’ that violations were still taking place.
“Those local authorities that are not meeting human rights requirements need to be scrutinised so that appropriate training and frameworks can put in place to rectify matters,” Ms Hughes said.
“The Law Commission recently did a review of DoLs so we’re expecting some major changes soon as it was recognised that the system was not working across England and Wales.
“The current situation is simply not acceptable.”
Care Inspectorate Wales said the amount of assessments not authorised within timescales has reduced.
A spokesman added: “In view of the ongoing challenges of operating the DoLS scheme across England and Wales, the Welsh Government has allocated additional and recurrent funds to all local authorities and health boards for a three year period from April 2018 until any changes in the law are known and implemented.
“We are aware local authorities have been working to address these challenges and to improve their performance in respect of deprivation of liberty safeguards.”
Some councils have dedicated more resources to respond to referrals, while in other areas authorities have a team to process applications which has reduced waiting lists.
“We are aware some local authorities do not have a waiting list and there has been overall improvement over the last year,” the spokesman added.
“CIW will be reviewing the impact of this work as part of the 2018/19 monitoring of DoLS with a focus on the experience of and outcomes for people whose liberty has been deprived.”