Councils are set to use desktop assessments to complete deprivation of liberty cases in a bid to clear a backlog of more than 100,000 referrals.
An advice note issued by the Association of Directors of Adult Social Services (ADASS), seen by Community Care, said this approach should only be used for cases triaged as ‘low priority’ or renewals of existing Deprivation of Liberty Safeguards (DoLS) authorisations of at least six months.
All such cases should be screened against nine criteria, including whether relatives object or there are any safeguarding concerns, ADASS said. If none are present “the more proportionate approach” should be used, with a best interests assessment carried out on papers alone or with a “shorter” visit than would normally be expected.
One council keen to implement ADASS’s approach said it was taking legal advice before doing so. ADASS said the approach was “compliant” with the DoLS legislation.
Official figures released last week by NHS Digital revealed the DoLS case backlog hit 101,750 in April 2016, up from 75,000 the previous year. This is a result of the Supreme Court’s ‘Cheshire West’ ruling in March 2014, which effectively lowered the threshold for cases requiring DoLS authorisations and triggered a ten-fold rise in applications.
In response to the pressure on services, the government has tasked the Law Commission with devising a replacement for the DoLS and recommendations will be made later this year. ADASS said “removing the backlog” would be a critical factor prior to the implementation of any new scheme proposed by the commission.
A DoLS trainer and a best interests assessor both raised concerns that desktop assessments risked losing a key check and balance in the DoLS process.
ADASS said the approach actually provided additional “emergency safeguards” as without it these cases may never be seen due to the pressures on teams.
“These are people who have not been assessed and therefore, their placement amounts to a deprivation of liberty which remains unlawful,” the advice note said.
“Despite measures developed by the sector and promoted by ADASS the situation shows no sign of changing. Councils are using the ADASS priority tool [to triage cases] but numbers are too large and in many instances simply cannot be managed.
“It is true for most councils now that priority cases are being assessed, and low priority cases are not receiving any protection at all.”
Examples suitable for a desktop assessment could include people in hospices or settled placements where a person has severe learning disability or no communication “such that a face-to-face interview is unlikely to add any additional detail to that which can be obtained from others”, according to the advice note.
ADASS said it was a “serious concern” that “large numbers of people are being unlawfully detained in care homes and hospital” without the DoLS protections. The association blamed the government for failing to give councils adequate funding to manage the implications of the Supreme Court ruling. Ministers are facing a legal challenge from a group of local authorities over the funding shortage.
Deprivation of liberty cases are coordinated by best interests assessors, usually specially trained social workers. Each case involves six assessments, the most important of which is the best interests assessment.
ADASS’s advice said that, for suitable cases, BIAs could “carry out most of their assessment based on the papers available to them”.
Unqualified staff could gather information from the care home or hospital, and a mental health assessor tasked with carrying out the mental capacity assessment as well as mental health and eligibility assessments. The BIA could then meet their requirement to “consult” the care home or hospital by phoning them.
“At any time during this process if the BIA receives conflicting or unreliable information they can choose to carry out a visit,” the advice note said.
Under the law BIAs must “have regard” for the conclusions of these assessments, and the person’s care plan, when carrying out their best interests assessment. However, ADASS said it was “of note” that the DoLS regulations “did not contain a requirement to interview the person”.
Aasya Mughal, director at Edge Training and Consultancy and co-author of the Deprivation of Liberty Safeguards Handbook, said she sympathised with the situation facing local authorities and ADASS given the “huge numbers” of cases. However, she said the advice note raised some concerns.
“ADASS have suggested that BIAs could use the information provided by the care home to screen cases to see if they need more detailed assessments.
“One of the things we hear from BIAs that is really worrying, and it is reflected in a recent survey we carried out, is that some issues – like objections – simply aren’t picked up in care assessments or by the care home who have made the DoLS application. It’s only the independent BIA checks that pick them up.
“My second concern is around the professional role of the BIA. How would they defend in court a BIA assessment that they have signed off without actually seeing the person? From a professional perspective I think that could be quite difficult.
“We, as a training organisation would never advocate doing a best interests assessment without seeing the person.”
One best interests assessor told Community Care the ADASS proposals had sparked a mixed reaction.
“Councils can’t cope with the sheer numbers so I can completely see why ADASS are talking about this. I think they’re trying to come up with ideas because no-one else is doing anything, and the government isn’t providing any more funding.
“But the desktop approach places the onus on the managing authorities to give BIAs the right information and in my experience that doesn’t always happen. A few weeks ago I assessed someone under a DoLS and found he’d been wrongly assessed as lacking capacity.
“That case could have met the desktop assessment criteria. If I’d done it that way I wouldn’t have picked up the problems – it was only through seeing him. So my worry is that we risk taking the person out of the process and the sheer numbers mean we could miss people who have been wrongly assessed.”
Local authority view
Local authorities are considering their options before acting on the ADASS advice note.
Nottinghamshire council, which has invested an extra £2m in extra staff and training this year in response to a “very large” increase in DoLS cases, said the ADASS advice would help the council “meet its legal requirements as far as possible”.
However, councillor Muriel Weisz, chair of the local authority’s adult social care and health committee, added: “The guidance is not being implemented yet as the council is still developing the detail of what this will look like, seeking legal advice as this progresses.
“We are also working with BIAs to address concerns that they may have and a key principle is that the oversight and decision-making at all times will continue to rest with the BIA.”
Richard Webb, ADASS honorary secretary, said: “Councils have experienced a significant increase DoLS assessments over the last 18 months, but have insufficient resources to undertake them.
“A best interests assessor should visit anyone under assessment, but with more than a tenfold increase in those needing such safeguards it is impossible to do so within the legal time frames.
“ADASS developed guidance to help its members address the backlog of DoLS assessments, attempting to put some vital safeguards in place to protect people who lack mental capacity and who would otherwise not get any such safeguards. We would urge the government to address the funding of adult social care in its Autumn Statement.”