Councils are being urged to get more social workers to train as best interests assessors to take account of a Supreme Court ruling that is likely to increase the number of Deprivation of Liberty Safeguards (Dols) cases.
The call came in an advice note for councils from the Association of Directors of Adult Social Services in the light of last month’s judgement in the cases of P v Cheshire West and Chester Council and P&Q v Surrey County Council.
The ruling sets a new test for determining a deprivation of liberty – that a person who lacks capacity to decide on their care arrangements is in a placement that is the responsibility of the state, that they are not free to leave and where they are under continuous supervision and control.
Previous case law had put forward more restrictive interpretations of deprivation of liberty, meaning many more people in care homes or hospitals will have to have their care arrangements authorised under the Deprivation of Liberty Safeguards. In addition, many more people than was previously thought in Shared Lives or supported living arrangements are likely to be deprived of their liberty, which will have to be authorised by the Court of Protection.
Under the Dols, it is the role of best interests assessors (BIAs) to determine whether a person is being deprived of their liberty and then, if so, whether this is in their best interests.
Adass said that the ruling would “inevitably” put pressure on local authority Dols teams and the capacity of BIAs. A quarter of councils already lack enough BIAs to handle their existing Dols caseload, found the Care Quality Commission’s annual report on the Dols for 2012-13.
“Local authorities need to encourage the uptake of BIA training from social workers to ensure the pool of BIA’s available is ever increasing,” said Adass.” It also said that independent BIAs may need to be used more frequently, councils may need to identify regional banks of independent BIAs and they may also need to pool their resources to train BIAs.
Adass also said councils needed to review previous decisions where people were found not to have been deprived of their liberty and reassess them against the Supreme Court’s test.
It advised that these could be “paper reviews”, rather than face-to-face assessments, and that councils should prioritise cases most like those considered by the Supreme Court. The court considered the cases of two learning disabled sisters – one placed in supported living and the other in a fostering arrangement – and a learning disabled man placed in a supported living bungalow.
The Adass advice note also said that councils should at a minimum:
- Develop an action plan to address the implications of the judgement;
- Brief all key partners on the implications, including BIAs and care home, hospital and supported living staff;
- Scope the increase in the number of people outside of care homes and hospitals who will need to be assessed for deprivation of liberty and develop a strategic response to this;
- Brief local authority legal staff in relation to taking cases to the Court of Protection to authorise the deprivation of liberty of people in settings other than care homes or hospitals;
- Ensure all BIAs, Dols mental health assessors and Dols authorisers are updated on the implications of the judgement;
- Meet with providers of independent mental capacity advocate services to discuss their capacity requirements in the light of the judgement.
The Adass advice note follows guidance issued to providers by the Care Quality Commission about the judgement, and an advice note from the Department of Health for both councils and providers. All three point to a significant increase in the number of Dols cases on the back of the case.