Guide to councils’ new deprivation of liberty duties in hospitals

In spring 2009, all of us working in health and social care expanded our vocabularies to include phrases like ‘supervisory body’, ‘managing authority’ and ‘relevant person’s representative’: the vocabulary of the Deprivation of Liberty Safeguards (Dols) entered our world. 

One of the clearer bits of the process to grasp was that, if the managing authority is a care home, the supervisory body is a local authority and if the managing authority is a hospital, the supervisory body is a primary care trust (PCT). That ground is now about to shift under our feet. With the abolition of PCTs next April, their responsibilities for carrying out Dols assessments and authorisations relating to hospitals pass to local authorities.

Implications

Although at first sight this appears a welcome simplification, those working in the field have become concerned about the implications for service provision, and in particular about the implications for best interests assessors (BIAs).

New guidance is about to be published by the Social Care Institute for Excellence (Scie) to help local authorities and PCTs manage the transfer of responsibilities. It describes the changes to the identity of the supervisory body and includes suggested tasks, timelines and templates to support the transition.

Many local authorities have been managing, from the very beginning, supervisory body functions on behalf of their local PCT. For them, the changes are clearly less of an upheaval with regard to the administration and management of the process, than it is for those which have been completely separate.

Ordinary residence

The supervisory body responsibilities held by a PCT will be transferred to the relevant local authority where the person has ordinary residence (unless the hospital care is commissioned by authorities in Wales: see the guidance for further details). The guidance gives examples of how it will work, but the headline messages are:
• each hospital should begin to collect and record information about patients’ place of ordinary residence;
• each local authority supervisory body must be prepared to untangle confusion about this (and start the assessment process, rather than delay until clarity is achieved);
• each local authority supervisory body must be prepared to accept hospital-based requests from anywhere in the country.

Changes to the role of BIA

Where supervisory bodies have been run jointly, local authority BIAs have from the start been going into hospitals as well as care homes to carry out best interests assessments. BIAs working for stand-alone PCTs have tended, naturally, to develop specialist expertise through working in hospitals only. Many local authority BIAs have experience in hospital settings, but this transition is a good time for BIAs without specific hospital assessment experience to learn from these colleagues who have specialised in hospital assessments. 

Ultimately, the BIA role is the same in hospitals as it is in care homes: to assess whether a situation presented as necessary to give essential care and/or treatment amounts to a deprivation of the person’s liberty or not; and, if it does, whether it is in the person’s best interests and proportionate. An understanding of the client group is necessary, but detailed knowledge of medical procedures is not.

Concerns over hospital-based practitioners

There is real concern that the skills and expertise of hospital-based BIAs will be lost, because local authorities will not be able to get them released from their “day jobs” to carry out assessments – or afford expensive back-fill. Local authorities that own their own care homes have been reliant on PCT-employed BIAs to carry out assessments in these homes (regulations prohibit use of a BIA employed by a local authority which is also the managing authority):  for these councils, in particular, there is a real impetus to make local arrangements to enable these BIAs to be used.

But there is a wider advantage to employing BIAs, as local authorities and hospitals have realised. They bring expertise in human rights-based practice into their work settings, enhance the knowledge of their colleagues, and immeasurably improve the experience of patients and users of services. And for these individual BIAs employed in hospitals, there is real personal and professional loss if they cannot keep up their BIA skills and practice after next April.

No simple solution

There is no simple national solution to these issues. A message from the guidance is that good local relationships (often forged in Mental Capacity Act local implementation networks) provide the best framework for discussion about how to keep what is best from the current system, while valuing the simpler system that will hopefully show its strength when the transitional dust settles.

Rachel Griffiths is Mental Capacity Act development manager at the Social Care Institute for Excellence. Her guide, written with John Leighton, Supervisory body responsibilities under the Deprivation of Liberty Safeguards: Guidance on the transition from Primary Care Trusts to Local Authorities, will be published by Scie in the next few weeks, and will be available on the Local Government Association’s Knowledge Hub. 

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