Social workers given guidance on improving Deprivation of Liberty Safeguards practice

Photo: Rex/Darren Greenwood

Social workers have been issued with guidance on improving their practice in relation to the Deprivation of Liberty Safeguards (Dols).

The Social Care Institute for Excellence guide is designed to combat perceived deficits in practice and share good practice examples from around the country in implementing the safeguards.

The Dols were introduced in 2009 to ensure adults who lack the capacity to consent to their care arrangements are only detained in care homes and hospitals when this is in their best interests, to prevent harm to them and as a proportionate response to that harm.

Massive local and regional variations in caseloads have fuelled concerns that many care homes and hospitals – “managing authorities” in the terms of the Dols – are depriving people of their liberty without authorisation from the relevant local authority (“the supervisory body”), leaving the service users without the protection of the safeguards.

The Scie guide includes targeted advice for the different groups of professionals and organisations who play a role in implementing Dols across care homes, hospitals, local authorities and clinical commissioning groups. Much of the advice is targeted at Dols teams, who perform the local authority’s supervisory body functions of authorising – or rejecting – Dols applications from managing authorities following assessment.

Support for care homes and hospitals

It says teams should provide guidance to care homes and hospitals on making Dols applications without seeking to influence their decision-making in particular cases. Examples of good practice in supporting managing authorities included:-

  • Providing ongoing briefing sessions for managing authority staff on making Dols applications;
  • Targeting services where Dols applications appear lower than might be expected and visiting them to provide advice on when they should be made;
  • Notifying managing authorities in good time before the expiry of a Dols authorisation so that they consider whether there is a need to apply for another one.

Managing urgent authorisations

Dols teams often receive “urgent authorisations” from managing authorities, enabling care homes and hospitals to deprive someone of their liberty for up to seven days without assessment. In these cases, Dols teams must ensure the six assessments required for a standard Dols authorisation are completed within the seven-day timeframe, rather than the usual 21 days.

Under exceptional circumstances, urgent authorisations can be extended for a further week by the Dols team; however the Care Quality Commission’s annual report on the Mental Capacity Act and Dols this year found teams were extending authorisations due to difficulties in finding staff to carry out assessments.

The Scie paper says this is not acceptable and Dols teams should ensure that they have contingency plans for holidays and periods of high demand to ensure they have sufficient staff and assessors available to manage urgent authorisations. But it also gives an example of when extending an urgent authorisation would be acceptable, pointing to a case of where it enabled a family member to take part in the assessment process.

Tensions with safeguarding teams

Dols teams often share staff and management with local authority adult safeguarding teams, and concerns have been raised by the CQC that the safeguarding focus on protection from harm could undermine the focus on human rights in Dols and the Mental Capacity Act 2005 more generally.

The Scie guide says Dols teams need to ensure that safeguarding colleagues did not undermine people’s rights and autonomy in taking decisions to protect them, and should act as “local authority scrutineers of safeguarding interventions”.

It cites as good practice a council that automatically refers safeguarding cases to the Dols team when a person allegedly at risk of abuse is removed to a place of safety and they lack capacity to consent to this. The Dols teams then decides whether the case should be referred to the Court of Protection for adjudication.

Supporting and scrutiny for best interests assessors

The guide describes best interests assessors – whose role is to identify whether a person is being or is going to be deprived of their liberty and whether this is in their best interests – as “the lynchpin on which the entire edifice of Dols rests”. They are commissioned by Dols teams to carry out the role, though most are employed by the local authority.

The Scie guide says Dols teams must support BIAs’ continued learning and practice development. Besides mandatory annual refresher training, this could include:-

  • Sending out bulletins summarising key Court of Protection or European Court of Human Rights judgements;
  • Having a panel to which BIAs can submit anonymised assessments and receive feedback;
  • Encouraging recognition of BIAs by their managers and peers as champions of human rights and good practice under the MCA.

However, it also stresses the importance of Dols “authorisers” – whose role is to sign off Dols applications following assessment – needed to effectively scrutinise best interests assessments, as well as the other five required for a Dols authorisation.

“If any of the assessments fail to give evidence for the decisions made, or if it is clear that the correct process has not been carried out (for example, close relatives were available for consultation but were not approached by the best interests assessor, it is the authoriser’s responsibility to request further evidence to substantiate the decisions reached,” says the guide.

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Improve your practice

Improving Dols practice will be one of the subjects for discussion at the forthcoming Community Care conference on safeguarding adults in care homes and hospitals. Register now for a discounted place at the event on 4 December in Birmingham.

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