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.
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I’ve recently stopped carrying out DoLS assessments since there is no real recognition of the role by the mental health trust I work for and no allowance made for it.
The local authority, meanwhile, offer no remuneration for BIA’s and the rota (one week at a time on) is incompatible with the other comitments of my role as a mental health social worker.
The constantly changing case law has led to an ever-expanding grey area which has made it all feel rather arbitary and offered no chance to feel that one is developing good practice.
What this all amounts to is a negative personal impact with no incentive to continue other than personal satisfaction and the face-to-face work with people at their most vulnerable.
At the moment, this is not enough to convince me that it is worth continuing to act as a BIA.
Hi Rob
Thanks for your comment and very sorry to hear about your experience, which I’m sure is not uncommon. It seems that local authorities do need to make the role much more attractive, while also getting many more people to do it; with every decreasing resources. Any solutions anyone?!
WE are in the middle of a DOLs referral to the Court of Protection. As family members attempting to support our elderly mother’s wish to stay at home, even with advancing dementia and frailty, we have been side-lined, kept uninformed, confused by the unclear process, pressure and loads of stress. The BIA didn’t attend the Best Interest Meeting which unanimously decided there was no cause for a DOL referral. She however decided there was cause, also visited our Mum and pronounced on a few things without any discussion with the regular care staff or family. Then the Legal Dept. couldn’t decide whether or not a meeting in London was about our mother, and said nothing about being able to attend, which we could. Actually it was a meeting of several LA’s on the Dol issue, and our Mum was our local Authorities example. It was and is a mess. Not a word of apology for the anxiety caused, just weasel words about ‘having the right to feel like that’, ignoring the actual facts of the confusion about the meeting, the lack of information and time to instruct a solicitor etc etc..WE are a caring and involved family with a good dementia care service for our Mother. Heaven help all those who don’t have anyone to stick up for them!