As Community Care publishes the findings of our research into the impact of a landmark Supreme Court ruling on deprivation of liberty cases, a best interests assessor shares their experiences…
My local authority had always been pretty proactive with the Deprivation of Liberty Safeguards (Dols) before the Supreme Court’s ‘Cheshire West’ judgement. We were among the councils that made most use of the safeguards in recent years. But in the five or six months since the judgement we’ve already seen five times the referrals compared to last year.
Best interests assessors
Best interests assessors, who are mostly specially trained social workers, play a vital role under the Dols. The Dols process involves six assessments. BIAs carry out the most significant of these – the best interests assessment. This assessment determines whether a person is being, or will be, deprived of their liberty and, if so, whether this is in their best interests and necessary to protect harm to them. Each assessment requires the BIA to visit the person, undertake a detailed analysis of care plans and records, speak to individuals involved in the case and complete detailed paperwork. There is currently a national shortage of BIAs, meaning that those that are in local authorities are under increasing strain.
I’m on our BIA rota every few weeks. We’ve also now got a dedicated BIA team. Before Cheshire West, when I was on rota I’d get maybe one or two Dols cases. Some weeks you’d get none. Since the Supreme Court ruling it’s guaranteed that we’ll all get as many cases as we can handle.
Senior management at our council have been completely overwhelmed by the judgement’s impact. Our Dols lead did a scoping exercise after the judgement, which showed how this would impact on resources. But I don’t think senior people believed it. The numbers looked so extraordinary that they thought they couldn’t be true. Our Dols lead and our BIAs tried to prepare for it but the people higher up didn’t get it. They get it now but we’re playing catch-up.
The ruling is without doubt a good thing. You can’t have a situation where one person’s human rights aren’t the same as another because they have a disability. Prior to Cheshire West that’s effectively what we had.
The judgement has made care homes think about what they are doing more and perhaps it will spur families on to look at what’s going on too. Care arrangements will be reviewed more than they would have been before. In the past, people might just have been placed in a care home and, unless anyone raised a complaint, it would be unlikely that they’d get anything more than an annual review.
So this is a massively positive judgement as far as rights go. My only concern at the moment is having the resources to do our job as BIAs properly. We need to have enough time to look at all aspects of the case. The judgement has made the deprivation part a lot clearer, but best interests assessments are still really complex. The pressure BIAs are under to complete more and more Dols cannot lead to things just being nodded through.
It feels like the pressure isn’t necessarily explicit, but you’re constantly asked ‘have you finished that?’, ‘can you take this on?’. It’s soft pressure but it’s still there. If you do BIA work on a rota basis, like me, then you also have in the back of your mind that all the time you’re doing the Dols stuff your casework isn’t getting done. You want to do a great job on both but ultimately something has to give.
The response to this definitely has to be more investment in services. I read the piece in Community Care about the government looking at putting cash into BIA training. I think a greater priority needs to be funding backfilled posts for social workers who are spending more and more time doing BIA work, either on dedicated teams or more rota days. We need the resource in the system, so that the work you’re not doing when you’re doing Dols gets covered.
At the moment I’m trying to cover both as best as I can. You end up writing up reports late at night when you get home, or over the weekend. You can only do that for so long.
Right now we’re in a crisis period but I can’t see the number of Dols authorisations dropping significantly in the future. I also know that, even though we’ve seen a huge increase, there’s more to come. I know that some care homes on our patch are holding back from putting in authorisations. Legally that’s not right, they should make the requests, but it’s definitely happening. We’ve told all the homes to put in the authorisations and let it be our problem. I know of other local authorities that have tried to tell care homes to hold them back and have said ‘don’t put them in because we can’t do them due to a lack of resources’.
So, the numbers might stabilise but they won’t drop by much. The government needs to look at a long-term solution to this.