In March, a Supreme Court ruling in the cases of Cheshire West and P&Q, effectively lowered the threshold for what constitutes deprivation of liberty in care.
In doing so it significantly increased the number of people requiring assessment for protection under the Dols scheme, which covers placements in care homes and hospitals. The ruling places a major strain on best interest assessors (BIAs) as councils struggle to meet statutory deadlines to authorise ‘urgent’ cases in seven days and standard cases within 21 days.
The ruling has also led to a significant increase in deprivation of liberty cases in settings not covered by the Dols, notably supported living. These require authorisation by the Court of Protection but cases are generally brought by local authorities, placing an additional strain on councils.
We caught up with two local authorities to hear how they are responding to the pressures brought by the change. Below Is Barnsley council’s approach.
The impact on Barnsley in numbers
- Average Dols authorisations per month pre-Cheshire West: 11
- Average Dols authorisations per month post-Cheshire West: 51.8
- Number of case carrying BIAs: 26
- Estimated additional costs of impact of Cheshire West ruling: £321,300
The impact on Barnsley in practice
A spike in demand for Dols assessments post-Cheshire West prompted Barnsley council to rethink its BIA provision. A council report, published in June, revealed that staff could not sustain the level of work being asked of them without their wellbeing being impacted. The council’s approach to Dols assessments, allowing case carrying BIAs to choose whether to take on a referral, was “unsustainable” given the new levels of demand, it found.
The council’s cabinet agreed to release £83,000 to allow social services to pilot a dedicated BIA team for six months. The team will be staffed by three seconded BIAs (three additional social workers will be hired to backfill their posts) and an administration officer.
“I think we quickly realised that the volume of referrals meant that we needed a different way to manage it,” explains Kyra Ayre, Barnsley’s head of mental health services.
“We’ve got 26 BIAs so we’re not really short of them. But we were finding, particularly for the urgent authorisations, it was really difficult to get people to pick them up because they were having to fit it around their normal day jobs,” she says.
“It was impacting the admin staff too as they were the ones having to work their way through the lists of BIAs desperately trying to find people to pick up referrals. Now they shouldn’t have to do that anymore because there will be three BIAs on tap ready and able to do them hopefully.”
The dedicated team, which will go live at the end of this month, will be evaluated after six months. It is just one element of Barnsley’s action plan to handle the impact of the Cheshire West ruling. Other key steps include:
- Training up more BIAs both at practitioner and management level
- Working with care homes and hospital staff to support them on type of cases that require urgent Dols authorisations
- Reviewing people with learning disabilities in supported living.
- Engaging with staff on psychiatric wards about implications for informal patients (i.e. those patients not detained under the Mental Health Act) and children’s services staff around the impact on them.
- Preparing a draft local strategy for Mental Capacity Act and Dols which is being finalised.
- Working closely with local commissioners (the local CCG is seconding a post to support the council’s work).
In the wake of the Supreme Court ruling, a Dols helpline that Barnsley set up when the Dols scheme was introduced in 2009 has been inundated with calls. While bringing an added pressure in one sense, the helpline has also helped answer queries from practitioners and care homes about applications, the Barnsley team says.
Kath Harris, the council’s assistant executive director of older people and vulnerable adults, says work to support care home and hospital staff identify which cases should merit an urgent Dols request has been key to managing the strain on services.
“We’ve tried to prepare that so that we don’t get a deluge of referrals that we can’t manage in any way. They have responded well. Partnership working has been key. We started with an action plan that covered the whole of care homes, hospitals, providers and colleagues across the council. Our partners have engaged with our training and advice about this,” she says.
Plenty of challenges remain. The team have seen another sharp rise in referrals from care homes and hospital in recent weeks. As a result, the council currently has a backlog of around 40 ‘stacked’ cases of standard authorisations awaiting assessment. Some, the team concedes, are likely to breach the 21 day statutory timescale for standard authorisations.
“To be proactive we’ve had to put together a local criteria to prioritise those cases. You know that obviously the most vulnerable and the urgent authorisations are dealt with immediately,” says Ayre.
Harris says that the resource burden of the work is huge but is confident that Barnsley’s approach is the right one.
“We’ve been trying to manage this in a measured way rather than it being an all-out panic. Obviously we haven’t got enough resources to manage what we’ve got but we’re managing what we do have in a way that keeps us legal.”