The much-criticised Deprivation of Liberty Safeguards are helping uncover failings in the care of vulnerable people that have been missed by other assessments, according to professionals.
A survey of 92 best interests assessors (BIAs), the group of mostly social workers qualified to coordinate DoLS assessments, revealed the most commonly reported ‘positive outcome’ from BIA input was the reversal of incorrect decisions that people lacked capacity to make decisions about their care.
BIAs also shared examples where DoLS assessments had led to people being supported to return home, sometimes from inappropriate care home placements, and instances where the checks had uncovered problems in the way the Mental Capacity Act was being used in care homes and hospitals.
The DoLS are used to authorise deprivations of liberty in care homes and hospitals, with BIAs playing a pivotal role by coordinating cases and carrying out the critical best interests assessment.
The survey was carried out by Steven Richards, Director at Edge Training, after a Law Commission consultation found most respondents felt the DoLS had “failed to deliver improved outcomes for people”. The Law Commission consultation received 49 responses from BIAs, including regional forums and teams.
Richards asked BIAs for up to 10 examples of positive outcomes, and received 468 submissions. He said the findings revealed how BIAs had managed to identify and address poor care and “overly restrictive” practice.
“Where other assessments (care reviews for example) and other health or social care staff have failed to identify these very real and concrete problems, it is the BIA assessment – a direct independent legally based professional assessment – that does,” he said.
“The assessment also provides a means to change the situation and deliver improved outcomes for people. As one respondent noted: ‘I feel extremely strongly that this safeguard has and continues to raise the standard of care for individuals who lack capacity.’”
The snapshot survey will trigger questions as to how common these positive outcomes are in a system that has seen DoLS caseloads rise from 10,900 in 2013-14 to more than 100,000 a year since the Supreme Court’s March 2014 ‘Cheshire West’ ruling effectively lowered the threshold for deprivation of liberty.
The pressure the ruling has placed on services, with huge case backlogs racked up by local authorities, led ministers to order the Law Commission to develop proposals to replace the DoLS.
The commission will present its final proposals by the end of the year but an interim statement published in May opened the door for the independent scrutiny role currently offered by BIAs to be radically pared back. The additional oversight could be restricted to a defined group, rather than all people who meet the deprivation of liberty threshold.
The government has put pressure on the commission to cut the costs of any DoLS replacement, and delivered a highly critical response to an initial set of more comprehensive draft proposals.
There are concerns this will lead to any new system being increasingly reliant on assessments from care staff, without additional scrutiny.
In his report, Richards said: “What appears not to be working effectively in many cases are existing care assessments and reviews for people in care homes or hospitals.
“The 400+ examples given in the survey appear to be for many for people who had had care assessments and reviews of care already but these had failed to identify and address concerns that BIAs subsequently found during their assessment.
“Why? Because they do not have the legal rigour or focus of a BIA assessment, they can be undertaken by unqualified staff and may not even involve the person having a face to face assessment as under DoLS for the BIA assessment. A serious concern therefore is that one of key proposals to replace DoLS is to rely on these assessments instead.”
Richards acknowledged his survey had limitations, most notably that it only asked practitioners to submit positive examples of outcomes, and said he would welcome further research in this area.
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100,000 assessments per annum. At what cost? A conservative estimate ( s12, bia, admin, management, training, court time, etc. etc.) might be £50 million per annum?
The benefits: reports of deficits in the procedures and processes of care providers, recommendations to change care plans to reflect this, very occasional findings of serious wrongs, recommendations to others to put these wrongs right.
The burdens: £50 million of public monies which might be better spent improving the conditions in where are most vulnerable live by giving providers of care more resources to deliver this.
DOLS is a ridiculous waste of public resources that should be being spent on better services for our most vulnerable citizens. It is time we realised this.
Divert the £50m to care providers and see what difference it makes : “a gilded cage is still a cage”. If the DOLS regime affected you, you would most likely think that £50 m is cheap if your liberty was re-instated following the best interest assessment.
Agreed I would certainly want the opportunity to challenge should I ever find myself deprived of my liberty.
As an imca manager I appreciate the aforementioned shortfalls of the DoLS process – primarily caused by resourcing issues that are proving to be the biggest challenge.
I would also propose that some administrative tweaks could streamline the system massively & reduce repetition.
Due to resourcing issues a kind of ‘postcode lottery’ or best of a bad situation approach is the only viable approach at the moment in the absence of reform, adaptation or additional funding provision.
That said I would agree with the views of the bia ‘s – that the safeguards offered throughout the DoLS process create Added value in terms of identifying otherwise undetected issues and most importantly from an advocacy perspective stand to provide incapacitated, unbefriended individuals with a voice to be answered by the Local Authority & Court of Protection should they object.
Any reforms and those involved in any reforms need to be mindful of not overlooking benefits of the service in the wake of Cheshire West.
Alex
how many peoples liberty have been reinstated ( admittedly a phrase open to some interpretation!) since the introduction of DOLs ? In terms of being released from some form of institutional care, the numbers are a handful. In terms of having restrictions lifted or altered, the number perhaps runs into hundreds. What could £50m buy in terms of improved provision of care, improved training of staff providing such care, improved oversight by community teams?? Spending 350m on just that small number of people in this way would massively exceed any perceived gains in better defining their legal position re: articles 5 and 8 ECHR.
My father is subject to DOLs. A perfectly good, sensitive, valid assessment. Made not one iota of difference to his daily life. This is true of so many cases.
Yes I have seen that happen alot maybe it would save alot of time if the initial assessment on someone’s care could include the best interest if need be it could serve as a guideline which anyone caring for such person can follow
Natalie
all good points. My thoughts, based on the experience of being a BIA, is to create a system to call BIA/ DOLs assessments when someone ( eg a staff member, social worker, GP, visiting nurse, member of the family, CQC member) becomes concerned that a person who lacks capacity to choose to remain at home X is being disadvantaged because of that inability. Then do a thorough assessment and invoke all the principles that the last 7 years have guided us towards. I have assessed many cases now. In only 1 did my input make a significant difference leading to a better outcome.
Such assessments thus become the exception rather than the rule. Divert the £50m to help providers and community teams do a better job of accurately assessing for and providing care to the wider group of people who lack capacity in this matter.
Hi BIA John. I am a social worker and also a BIA. I acknowledge ure points. But there are additional benefits to this that u haven’t considered or at least haven’t mentioned. Principally i think a key benefit that comes from having that independent second opinion, as it were, in addition to the possibility that improved outcomes are possible, is the signal it sends. People who lack capacity have rights. This is often forgotton, or undervalued. I think DOLS since Cheshire has reversed this, to an extent. And if some people have better outcomes as a result well perhaps the associated cost is a little like a Yiddish saying that goes something like he (or she) who saves a life it as if they have saved the whole world. (i think it is a yiddish saying anyway)
But yes. With funding difficulties as they are-hard times.
In theory, the wider reaching application of DoLS from an advocacy perspective offers more equality and less subjectivity.
However, in practice resources are finite and therefore the ‘real life’, working application of DoLS now differs from the legislative legal stance.
This in fact creates subjective inequality, dependent upon categorisation, locality, targeted resources and individual circumstances.
I truly believe that there must be a middle ground. That can target resource, whilst also safeguarding the rights of some of the most. Vulnerable individuals in society.
Where instead of some receiving a ‘gold star’ resource laden level of safeguarding, support, ie;bia, authorisation, review, rpr, 39d, 21a challenge, legal input and scrutiny by the COP and others sit in a waiting list with nothing.
I hope that the good in the process will remain and not be lost in the overarching focus around money.
It would not be my place to decide how categorisation could work- but maybe frequency of assessments in circumstances that are less contentious may be a place to start?
Utilising the paid rep role may also be a more cost effective way of flagging the need for attention rather than the sometimes arbetory revolving door process that is legislatively enforced but in practice unachievable for all eligible.
Interesting that BIA John appears happy to take his cut of the £50m even though he sees little benefit in his endeavours.
Personally, I cannot help but think that the whole issue of DoLS and what it represents exposes other problems that we appear to prefer not to talk about.
From reading the article, and the comments above, I get a sense that both workers and public, alike, remain somewhat confused regarding DoLS, and also that there is a sense it does not fully work. I understand that the Mental Capacity Act, to which DoLS relates, allows for the use of restrictions and restraint as part of a person’s care and support, but only if they are in the best interests of a person who lacks capacity to make decisions for themselves. The problem is that questions continue to arise – both around just what it means to lack capacity, and how this is clearly demonstrated; and also around just what is implied by restrictions and restraint.
Personally, I find that DoLS seems limited in its scope, as it only applies to people in care homes, or hospitals (and only to hospitals if the person there is not sectioned under the Mental Health Act). However, it is clear that these are NOT the only places where people may be deprived of liberty. People still living at home, or living in supported tenancies or supported living environments, are not covered by DoLS, instead they are to be referred to the Court Of Protection. This seems a little silly, at best, to me – especially when one considers the fact that many supported living schemes are in fact residential placements. If the argument behind DoLS applying to care homes is that people may be placed there in perpetuity, then surely the same applies to supported living schemes? People can be placed there in perpetuity, too. So, why the different procedures? Why not just one, streamlined, overarching procedure?
Now, many of the DoLS checks that are discussed in the article are said to have had “positive outcomes” because they have “reinstated people’s liberty”. However, there is no real mention of exact figures. Furthermore, this leads me to believe that “reinstatement of liberty” translates as “releasing someone from residential care and returning them home”. In real-life terms I should like to know just how often this DOES happen. My feeling is that it would actually be a very tiny number of cases. This whole issue disturbs me, because there is a sense (a mistaken sense perhaps) that DoLS and DoLS checks are predominantly about inappropriate placement in residential care. This further makes the whole issue of residential care appear contentious. We ought not to forget that residential placement may actually be the best option for some individuals, and that placing them there is not something that should be viewed in terms of DoLS. The problem is that DoLS can all too easily make some individuals fearful of residential placement – workers may feel pressured to attempt to keep people at home and in the community even though this is untenable, simply because they could form the mistaken belief that to place someone in residential care automatically necessitates a DoLS investigation and automatically represents a deprivation of liberty.
The above is further compounded by a problem highlighted in another “Community Care” article, which tells of multiple unnecessary Coroner’s investigations following deaths of people subject to DoLS. Legislative requirements appear to necessitate the investigation of the deaths of ALL people subject to DoLS. My belief is that this is a misinterpretation, but irrespective, investigations are being undertaken that HAVE proven both unnecessary, and invasive (as viewed through the eyes of families involved). Whether subject to DoLS, or not, the FACT is that some people in residential care NEED to be there, and that sadly some will die of perfectly NATURAL causes whilst still resident there. For instance, an elderly person with seriously advanced dementia and associated vascular problems may well require a residential placement. It is not improbable that such a person could die of such natural causes as heart failure or stroke whilst still resident in care. Such deaths do not require investigation. To enforce investigation turns DoLS and its checks into an invasive, somewhat offensive, process. This, in my eyes, totally contradicts the purpose of DoLS! Something which is ostensibly about safeguarding and about protection of people’s rights has now become an invasion of privacy, and an excessively bureaucratic exercise that gives little thought to the feelings of those involved.
My feeling is that workers are struggling with DoLS, and that the DoLS system itself is struggling. Perhaps because to a degree its remit is unrealistic? Whilst it is laudable not to wish to deprive a person of their liberty, I do not think that full consideration was ever given to what this actually implied. There appears to be an underlying assumption that people cared for at HOME, people who remain at large within the community, CANNOT be deprived of their liberty; the assumption implies that home care is preferable to residential care. This is an absolute NONSENSE. Whilst a person may be cared for at home, and whilst this may appear to represent no infringement of liberty, the truth can be completely different. THIS is what DoLS should actually be making people aware of. There should be NO separation of DoLS, and application only to people in residential care homes. Instead, DoLS (or something similar) should apply in ALL circumstances – whether a service-user lives at home, in a care home, in supported living. My point being is that the issue to be investigated is DEPRIVATION OF LIBERTY, irrespective of where it occurs.
Even people who are NOT placed in residential care CAN experience deprivation of liberty, and this can happen in a multitude of ways. At present, this is dealt with by the Court Of Protection, separate from DoLS. Why? This does not really make sense, because surely deprivation of liberty is deprivation of liberty? Why have different procedures depending on where a person lives? Surely this unnecessarily complicates matters and leads to additional workload.
A person could be cared for at home predominantly by family members who present as well-meaning and supportive when face-to-face with Social Care staff. However, behind closed doors, and when not observed by Social Care staff these same “caring” family members could behave totally differently. They might say that they regularly take their cared-for relative for outings, when actually they do not and the poor individual is left housebound. They might say that they never force their cared-for relative to do things that he/she does not wish to do, when actually they frequently force the person to do things – for instance, manhandling the person into the bath for a wash, or pulling the person into the bedroom to get changed, or continuing to comb and brush the person’s hair when the person has said stop. These well-meaning family members might even defend such behaviours by saying that if they did not do this, their poorly relative would never bathe, never change clothes, and never keep their appearance tidy. My point is that it can be easy for people to justify behaviours that could amount to deprivations of liberty, but which are not directly observed by Social Care staff. If they are NOT observed, and picked up on, then such a case might never even be referred to the Court Of Protection. My feeling is that such occurrences may be more common than we think. However, because of all the hype around DoLS, we only ever hear of deprivations of liberty that take place in care homes. Yet again, this sheds a negative light on such placements, and adds to the erroneous belief that they are not as good as trying to maintain a person living at home.
I write the above from personal family experience. My brother- and sister-in-law have had several run-ins with Social Services after it was discovered that they locked their learning disabled son in his bedroom from the OUTSIDE. When asked why, they said it was because he was at risk of running out of the house and into the road. This is the same disabled son whom they claim MOBILITY ALLOWANCE for, saying he cannot walk far! Does not locking a disabled relative in a room constitute a deprivation of liberty? Yet the disabled son still lives at home! He is generally considered to be “better off” than living in residential care. There tends to be a public misconception that some of my family members have bought into that care at home is automatically better than care in a residential facility! But behind closed (and locked!) doors he remains deprived of liberty.
I do not see why the separation of DoLS and its application only to people in hospitals or care homes was necessary. Either DoLS should apply to all, or the Court Of Protection should suffice for all. Why two systems that, at the end of the day, tackle the same issues only in different residential settings? As I asked earlier, does this not create a mountain of extra (unnecessary) work? Ought we not to be recognizing that people can be deprived of liberty no matter where they reside, and that if this occurs, it should be tackled in a consistent manner?
My feeling is that this whole issue needs addressing, and re-thinking!
The problem with DoLS, and why it is perhaps so contentious, is that it throws up all manner of previously unforeseen questions and dilemmas in respect of human rights. Especially when considered alongside the issue of preservation of human life. For instance, DoLS proceedings may be invoked in certain circumstances that lead workers to suspect deprivation of liberty. One of these is where a service-user
‘My feeling is that this whole issue needs addressing, and re-thinking!’
Which is exactly what is being done as we speak by the Law Commission, in case you missed it.
Apologies! Some of my post appears to have gone astray!
What I had written at the end of my post was this…
One of these is where a service-user repeatedly states that he/she wants to go home. However, we should note that this sort of behaviour can actually be symptomatic of some illnesses that lead people to being placed in residential care homes in the first place. People with advanced dementia may well continually voice a desire to “go home”. However, when asked where home is, they may be completely unaware; or they may voice an unrealistic desire to return to a home that they have not lived in for many years – such as their childhood home. This is because Dementia messes with memory, messes with a person’s sense of time and place. In such cases, a service-user who says they want to go home ought perhaps NOT to trigger a DoLS investigation, because the vocalization is more a symptom of their Dementia than it is a realistic and fully thought through expression of genuine desire to return to a home that they could actually safely inhabit. How many potentially unnecessary DoLS investigations have been brought up in cases such as this?
And what about the preservation of life? What about cases where a person clearly DOES want to remain at home, but is at risk of severe self-neglect, or even death, if they do so? What if such a case also involves variable capacity? For instance, a person who is an alcoholic might end up in Hospital with dehydration and liver problems, which are treated. The person then wants to go home, and openly expresses a wish to return as soon as possible. However, both Hospital staff, and also family of the alcoholic, are worried because historically this person has a pattern of self-neglect and heavy drinking at home that leads to repeated Hospitalization. So, assessment of capacity is undertaken and capacity proves to be variable. The alcoholic is perfectly capable of making decisions that HAVE NOTHING TO DO WITH ALCOHOL. However, as soon as alcoholic drink enters the equation, the alcoholic is so caught up in feeding their addiction that they no longer think straight. This is demonstrated by several aborted attempts to give up alcohol in the past, even with Alcoholics Anonymous help; and by the fact that during assessment, when asked what he/she would do upon leaving Hospital, the alcoholic jokes “celebrate at the Pub”! More detailed questioning reveals that they would happily continue to drink if returned home. When asked if they understand the risks of drinking, the alcoholic responds “So what? It might kill me – big deal!”. In such cases, residential care might well be considered due to history of serious self-neglect and due to potential issues in respect of Korsakoff’s Syndrome (which the alcoholic may develop, or may even have). Although the alcoholic wants to go home, do they have the capacity to make this decision? If they are placed in a care home, and DoLS invoked, is this a waste of time because they do actually warrant being placed there? Is it better to try to preserve a life that may be at risk should the alcoholic return home and start drinking heavily again? Or, would placement in residential care (which could prevent this) be a deprivation of liberty? In a case like this, which is MORE important _ Freedom, or LIFE?
Ellie, your extensive musings, though vaguely thought-provoking (if, I have to say, also rather patronising), are probably better suited to a reflective journal, lest their chief achievement be to kill any debate stone dead.
Yet again, we see comments interjected of an offensive, dismissive and insulting manner. This time, comments by somebody calling him- or herself “Airstrip Won”. It is to be noted that comments made by this individual neither provide anything constructive in respect of contributing to any debate, nor do they do much to identify any opinions that said comment-maker may have in respect of the topic of the article. Rather, they amount to little more then “TROLLING”. Such as the nasty remark made by “Airstrip Won” about “BIA Jon”. Surely, rather than making snide remarks about other people’s comments, “Airstrip Won” would do better if he/she contributed something useful, insightful or informative of his/her own to the debate. Clearly this does not seem possible.
Do the people at “Community Care” not have a way of dealing with such “TROLLS”? It would make for a much more pleasant, informative, and useful forum were people such as “Airstrip Won”, who make immature and crass remarks to find themselves excluded.
There are 2 key roles which should act as a safeguard for very vulnerable people lacking in capacity in care homes. One is a paid Relevant persons representative for people lacking capacity to understand their DOLS and no family member or friend to visit regularly. The other is the right to an Independent care act advocate (ICAA) for a person with serous communication difficulties who has no one appropriate to support therm in a care review. It is crucial that people who are eligible for these services do receive them. Not enough is being done to spread the word about the ICAA role.
Naomi