By Lorraine Currie
The recent review of the Deprivation of Liberty Safeguards forms, commissioned by the Department of Health and facilitated by the Association of Directors of Adult Social Services, was carried out by a small group of people with direct knowledge of the process. These included best interests assessors (BIAs), section 12 approved doctors and those with legal expertise. The group also had Dols administrators in it as the people who most often deal with tricky aspects of the forms.
However, the review, which led to a reduction from 32 to 13 in the number of forms, builds on work which has been ongoing across the West Midlands in particular for the last four years.
Forms not fit for purpose
Early on in the implementation of Dols it became clear that the forms, although functional, did not allow for the best expression of practice. Many BIAs found they had things to say but nowhere to say them. BIAs often worked in a vacuum, they saw their own assessments but they never saw any from wider afield. There were no books for BIAs and no research to inform practice in those early days. There is still very little practice based research. There was no benchmarking and there was no expectation or agreement as to what constituted best practice.
Shropshire Council reviewed and amended some of the key forms in early 2010. In early 2011, in conjunction with Keele University, the council arranged the first regional training events for BIAs. For the first time all the BIAs across the region came together to discuss what best practice looked like. Each BIA was asked to bring an anonymised assessment and in the afternoon, after input from the university and from solicitors, the BIAs carried out a mini-audit of the form 10s (the best interests assessment).
The BIAs were also asked to identify the essential elements of an assessment, which included background information, views of the person and the history behind the current arrangements – none of which had a place on the existing form. It was astonishing to find that many BIAs found the assessments to be less than adequate.
Regionally the West Midlands committed to addressing this and working together to set standards and improve practice. The first step towards this was revisiting the forms which were all revised to a regional standard. This was not seen as an administrative task – its purpose was to address quality. Once the region worked to an agreed set of forms this made benchmarking and audit possible. The forms had significant input from BIAs and were always issued as a pilot first and then a final form following feedback.
From 2012 the West Midlands regional group began a large-scale audit process. Each council provided five anonymised form 10 assessments which were peer audited by the Dols lead in another of the 14 councils. Once completed the outcomes were given a RAG (red/amber/green) rating without the council being identified. The purpose of the exercise was not to produce a league table but to look for trends, strengths and weaknesses across the region. This then enabled the development of an action plan which included better targeting of regional training to drive improvement where it was needed. This was followed by an audit of the form 12 (the supervisory body’s decision on whether to authorise a deprivation of liberty), and then in 2014 the focus moved on to the mental capacity assessment (yes, even in the midst of the Supreme Court mayhem the work went on!)
Again we carried out an audit of this assessment by a peer method. The results of this are currently being compiled but already clear trends and patterns are emerging.
Best interests checklist missing
The audit of form 10s highlighted the lack of reference to the statutory best interests checklist. BIAs were excellent at completing detailed reports but often forgot the basic MCA principles around evidencing use of the checklist. This was something we were able to address with support tools and training and has influenced some of the changes in the new forms. The mental capacity audit is so far showing a weakness in evidencing that all practicable steps have been taken to support the person. This too has been addressed in the new forms and it is hoped that the addition of this as a specific consideration will lead to improved application of this important MCA principle.
Interestingly, both elements which were found to need developing reflect the wider application of MCA principles and not the flea on the back of the dog, which is Dols.
So it was this historical experience that some members of the project group forms brought to the recent review of Dols forms but it was refreshing to have very different representation in the group from those skilled practitioners who were still working with the original forms. The project group did not simply adopt the West Midlands versions; none of the new forms are simple copies of the West Midlands forms
Cheshire West impact
Following the Supreme Court decision on Dols last year in the ‘Cheshire West’ case, Adass established a time-limited task force which resulted in the regional Dols leads around the country working much closer together. The great benefit of this has been the sharing of good practice. Many, if not all, local authorities have produced guidance for their BIAs, whether that was based on the old form 10 or their adapted version.
This was a comprehensive review. Despite the speed with which the task was required to be completed a call went out for any adapted versions of the forms in existence across the country. This was the starting point. Nine councils sent in their versions all, of which have influenced the end product.
Reducing bureaucracy while maintaining quality
The group also sent a questionnaire far and wide to ask which forms people used and which never got used. On this basis some forms were removed completely. The aim was to reduce the bureaucracy whilst still maintaining quality.
Many of the forms were combined so rather than having upwards of three forms relating to reviews these have been combined into one.
It’s always useful to try and look out through the eyes of a family member or the person being deprived of liberty and ask how they must have felt to be notified about, for example, a request for a review, the supervisory body’s decision on review, the outcome of the review and so on – all accompanied by masses of paperwork.
This should not be an administrative process, it is a vital safeguard. This is the means by which we confirm that someone has lost their liberty and that this is lawful. It is an essential safeguard sitting within a hugely visionary and creative Mental Capacity Act.
Paperwork should not drive process
The paperwork which accompanies it should serve the process not drive it. As we see Making Safeguarding Personal determining a person-centred approach to safeguarding surely the Dols, with their root in MCA and human rights, should be the exemplar of this. The process should serve to ensure the person’s rights are upheld, and their liberty enhanced where possible and protected where necessary, not to produce a form-for-forms’ sake culture which we had before.
I hope the new forms, while they will not be to everyone’s liking, will allow us to bring out the best in what we do. BIAs are incredible professionals, the safeguards do safeguard people rights, and we must not drown in paperwork. It is telling to me that there was no explicit mention of the person’s views on the old forms.
Wishes and feelings
It is the persons wishes, feelings beliefs and values, the things which make them who they are, that should jump off the page, not tick boxes or formatting or questions too complex to answer written so many times that there was no option but to lose heart.
We are in a temporary phase, the Law Commission will produce their consultation document this year on reforming the law on deprivation of liberty and we will be heading to “Dols 2” (the sequel), I hope that these new forms will provide an interim measure which does reduce time spent on them in order to redirect time where it matters to the people within the process.
Lorraine Currie is MCA and Dols manager at Shropshire Council and was project lead for the review of the Dols forms