Councils are shifting social workers trained as best interest assessors (BIAs) into specialist teams set up to clear backlogs of Deprivation of Liberty Safeguards (Dols) referrals that have piled up following a landmark court ruling.
Concerns have been raised that reassigning BIAs to work exclusively on Dols could deplete social work teams of experienced staff who are adept at handling complex cases. But directors say focusing more BIA time on Dols is necessary if services are to cope with a surge in referrals that has already seen some councils routinely breaching key statutory duties.
The rise in Dols referrals has been triggered by the Supreme Court’s ruling in March in the cases of Cheshire West and P and Q. The ruling effectively lowered the threshold for 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 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.
For each application from a care home or hospital to deprive a person of their liberty, councils must carry out six assessments before deciding whether to authorise the deprivation or not. Most of these are carried out by BIAs, either social workers directly employed by councils or independent BIAs bought in by local authorities at a cost of anywhere between £250 and £400 per assessment. The best interests assessment, which determines whether the person is deprived of their liberty and – if so – whether this is in their best interests, is the most significant of the six.
The Association of Directors of Adult Social Services (Adass) has predicted that the Cheshire West ruling will see Dols assessments rise from just under 10,000 last year to a predicted 94,000 by the end of this financial year at an extra cost of at least £88m to councils. While talks between Adass and the Department of Health over the ruling’s impact and how any additional resource burden should be funded continue, evidence gathered by Community Care from official council and NHS reports reveals that services are already being hit hard. We found that:
- Statutory timescales have been breached: The surge in demand has left some councils routinely failing to meet their requirements to assess ‘urgent’ Dols cases within seven days and standard cases within 21 days. A report presented to Solihull council’s health and wellbeing cabinet in July admitted that the ‘vast majority’ of assessments had breached timescales. The council has set out an action plan to address the delays. A July report to NHS provider Solent healthcare’s board revealed that all 14 urgent authorisations it had sent to a local authority had been delayed.
- Backlogs of unallocated cases have built up: A report presented to Rochdale council’s cabinet last month revealed that more than half (27) of 52 Dols requests did not have an allocated BIA “due to resource issues”. The cabinet approved a funding injection to help boost capacity. The Solihull council report showed that 75 of 213 Dols requests were unallocated as at 9 July.
- The demand has placed ‘unsustainable’ strain on staff: A report presented to Barnsley Council’s cabinet in June on the impact of the Cheshire West ruling said that “staff cannot sustain working at the current capacity indefinitely without it having a negative impact on their wellbeing”. The cabinet approved extra resources to boost BIA and administrative capacity in a bid to ease the burden and has an action plan in place to address the impact of Cheshire West.
- The ruling has had an impact across adult social care: The Solihull report says that the rise in Dols work has “significantly impacted” safeguarding teams as its BIA-trained social workers have been diverted to Dols work. Mental health and hospital social work teams have also been affected, the report says. Rochdale’s report says that the increase in assessments will have a “huge” impact on practitioner time, both for BIAs and social workers more generally.
How councils are responding
The pressures, the scale of which vary from council to council, have forced local authorities to rethink their models of BIA provision. Several have concluded that the surge in demand triggered by Cheshire West means a full-time Dols team with a group of BIAs exclusively working on Dols cases is needed, at least in the short-term. The teams will supplement the capacity provided by case carrying BIAs, who are struggling to juggle caseloads and Dols work, and independent BIAs.
Solihull council has set up a dedicated Dols team, staffed with two full-time social worker BIAs backed up with an administrator. Ian James, the council’s director of adult social care, said the move was necessary as the council has faced an average of 46 Dols referrals per month since the Supreme Court ruling, compared to six per month last year. Solihull predicts it will handle 700 to 800 referrals in 2014-15. Last year referrals totalled 77.
“Previously our seven or eight case carrying best interest assessors would do around one Dols case a month. It was something they could do alongside their caseload but obviously you can’t manage the demand we’ve got at the moment on that basis. You need a dedicated resource as well,” said James.
“In some ways, the big issue around that [the dedicated team] is that it’s taking social workers away from other things. The two social workers came from our safeguarding team. Their posts are being backfilled with two temporary social workers.”
Even with the additional resource, Solihull is struggling to cope with demand. Prior to the Supreme Court ruling, the council met its timescales but in recent months meeting the seven-day deadline for urgent authorisations has been “impossible”, a report published in July found.
James says that the council has drawn up an action plan to build capacity to ensure all timescales are met by the end of the financial year. This includes plans to train more social workers as BIAs, provide training to care home staff to ‘ensure they understand the new rules’, increase the administrative support for Dols cases and work with providers to identify priority cases.
“We have to live with the fact that we will breach timescales over the next few months,” he said.
“The alternative would have been for me to second a load of social workers to deal with the Dols backlog but that would leave me with risks elsewhere in the organisation. If I’m balancing risks, say in safeguarding services, against dealing with a backlog of people, some of whom – while its an important legal issue – aren’t particularly at risk, then we need to be pragmatic in the way we deal with that.”
Barnsley council is also piloting a dedicated Dols team, made up of 3 full-time BIAs seconded from case-carrying teams and Rochdale council is considering a similar move. Social workers in the East Midlands and south of England also told Community Care that a number of councils in their areas had also set up dedicated teams with full-time BIAs.
In a report to Rochdale council’s cabinet making the case for the move, Jane Timson, the council’s head of safeguarding, said: “The impact of the increased requests for BIA assessments must not be underestimated. The number of Dols authorisations requests is likely to have a huge impact on the teams they work in. For this reason, consideration needs to be given to having a dedicated BIA team, and then back fill their jobs within their teams. This will enable us to provide a quick response to the number of Dols requests received.”
The wider issues the move raises
Robert Nisbet, an independent social work consultant, said that dedicated teams could help councils deal with the increase in demand but he warned that the scramble to boost BIA capacity also presented issues.
“It’s not just about adding more resources, it’s about the competency and skill base to do it. Many councils have pulled their more senior practitioners from other services to focus on Dols so that inevitably depletes those,” he said.
Roger Hargreaves, Dols lead at the Mental Health Alliance, said councils moving to full-time Dols teams was a “sensible” move but added that regardless of how councils looked to boost BIA capacity it would detract from other services.
If the complex case management and safeguarding that those staff are good at doesn’t get done properly then there is a risk.” Roger Hargreaves, Mental Health Alliance Dols lead
“If the complex case management and safeguarding that those staff are good at doesn’t get done properly then there is a risk. BIAs already come across situations in Dols cases that should never have been allowed to exist but they do because the case management was not done properly, or there was poor safeguarding practice. If you have to boost your BIA workforce at the expense of those other things, you risk creating a vicious circle.”
A Department of Health spokesperson said: “We are committed to making sure that the Mental Capacity Act is used to protect and empower people receiving care and support. We are looking at the impact of the Supreme Court judgement on local authorities and will consider findings in due course.”