Councils are set to use desktop assessments to complete deprivation of liberty cases in a bid to clear a backlog of more than 100,000 referrals.
An advice note issued by the Association of Directors of Adult Social Services (ADASS), seen by Community Care, said this approach should only be used for cases triaged as ‘low priority’ or renewals of existing Deprivation of Liberty Safeguards (DoLS) authorisations of at least six months.
All such cases should be screened against nine criteria, including whether relatives object or there are any safeguarding concerns, ADASS said. If none are present “the more proportionate approach” should be used, with a best interests assessment carried out on papers alone or with a “shorter” visit than would normally be expected.
One council keen to implement ADASS’s approach said it was taking legal advice before doing so. ADASS said the approach was “compliant” with the DoLS legislation.
Official figures released last week by NHS Digital revealed the DoLS case backlog hit 101,750 in April 2016, up from 75,000 the previous year. This is a result of the Supreme Court’s ‘Cheshire West’ ruling in March 2014, which effectively lowered the threshold for cases requiring DoLS authorisations and triggered a ten-fold rise in applications.
In response to the pressure on services, the government has tasked the Law Commission with devising a replacement for the DoLS and recommendations will be made later this year. ADASS said “removing the backlog” would be a critical factor prior to the implementation of any new scheme proposed by the commission.
‘Emergency safeguards’
A DoLS trainer and a best interests assessor both raised concerns that desktop assessments risked losing a key check and balance in the DoLS process.
ADASS said the approach actually provided additional “emergency safeguards” as without it these cases may never be seen due to the pressures on teams.
“These are people who have not been assessed and therefore, their placement amounts to a deprivation of liberty which remains unlawful,” the advice note said.
“Despite measures developed by the sector and promoted by ADASS the situation shows no sign of changing. Councils are using the ADASS priority tool [to triage cases] but numbers are too large and in many instances simply cannot be managed.
“It is true for most councils now that priority cases are being assessed, and low priority cases are not receiving any protection at all.”
Examples suitable for a desktop assessment could include people in hospices or settled placements where a person has severe learning disability or no communication “such that a face-to-face interview is unlikely to add any additional detail to that which can be obtained from others”, according to the advice note.
Funding pressures
ADASS said it was a “serious concern” that “large numbers of people are being unlawfully detained in care homes and hospital” without the DoLS protections. The association blamed the government for failing to give councils adequate funding to manage the implications of the Supreme Court ruling. Ministers are facing a legal challenge from a group of local authorities over the funding shortage.
Deprivation of liberty cases are coordinated by best interests assessors, usually specially trained social workers. Each case involves six assessments, the most important of which is the best interests assessment.
ADASS’s advice said that, for suitable cases, BIAs could “carry out most of their assessment based on the papers available to them”.
Unqualified staff could gather information from the care home or hospital, and a mental health assessor tasked with carrying out the mental capacity assessment as well as mental health and eligibility assessments. The BIA could then meet their requirement to “consult” the care home or hospital by phoning them.
“At any time during this process if the BIA receives conflicting or unreliable information they can choose to carry out a visit,” the advice note said.
Under the law BIAs must “have regard” for the conclusions of these assessments, and the person’s care plan, when carrying out their best interests assessment. However, ADASS said it was “of note” that the DoLS regulations “did not contain a requirement to interview the person”.
Concerns
Aasya Mughal, director at Edge Training and Consultancy and co-author of the Deprivation of Liberty Safeguards Handbook, said she sympathised with the situation facing local authorities and ADASS given the “huge numbers” of cases. However, she said the advice note raised some concerns.
“ADASS have suggested that BIAs could use the information provided by the care home to screen cases to see if they need more detailed assessments.
“One of the things we hear from BIAs that is really worrying, and it is reflected in a recent survey we carried out, is that some issues – like objections – simply aren’t picked up in care assessments or by the care home who have made the DoLS application. It’s only the independent BIA checks that pick them up.
“My second concern is around the professional role of the BIA. How would they defend in court a BIA assessment that they have signed off without actually seeing the person? From a professional perspective I think that could be quite difficult.
“We, as a training organisation would never advocate doing a best interests assessment without seeing the person.”
One best interests assessor told Community Care the ADASS proposals had sparked a mixed reaction.
“Councils can’t cope with the sheer numbers so I can completely see why ADASS are talking about this. I think they’re trying to come up with ideas because no-one else is doing anything, and the government isn’t providing any more funding.
“But the desktop approach places the onus on the managing authorities to give BIAs the right information and in my experience that doesn’t always happen. A few weeks ago I assessed someone under a DoLS and found he’d been wrongly assessed as lacking capacity.
“That case could have met the desktop assessment criteria. If I’d done it that way I wouldn’t have picked up the problems – it was only through seeing him. So my worry is that we risk taking the person out of the process and the sheer numbers mean we could miss people who have been wrongly assessed.”
Local authority view
Local authorities are considering their options before acting on the ADASS advice note.
Nottinghamshire council, which has invested an extra £2m in extra staff and training this year in response to a “very large” increase in DoLS cases, said the ADASS advice would help the council “meet its legal requirements as far as possible”.
However, councillor Muriel Weisz, chair of the local authority’s adult social care and health committee, added: “The guidance is not being implemented yet as the council is still developing the detail of what this will look like, seeking legal advice as this progresses.
“We are also working with BIAs to address concerns that they may have and a key principle is that the oversight and decision-making at all times will continue to rest with the BIA.”
Richard Webb, ADASS honorary secretary, said: “Councils have experienced a significant increase DoLS assessments over the last 18 months, but have insufficient resources to undertake them.
“A best interests assessor should visit anyone under assessment, but with more than a tenfold increase in those needing such safeguards it is impossible to do so within the legal time frames.
“ADASS developed guidance to help its members address the backlog of DoLS assessments, attempting to put some vital safeguards in place to protect people who lack mental capacity and who would otherwise not get any such safeguards. We would urge the government to address the funding of adult social care in its Autumn Statement.”
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I would not feel happy working in that way. If you want to save on public spending teverse the Cheshire West Ruling or tighten it up.
The backlog wasn’t created by the Cheshire West ruling but by a convenient failure up to that point to recognise the universality of human rights.
I think this a contentious issue, there would be an expectation that the MA would provide all the required information for the BIA to read and then make a decision based on that information.
To begin with how does the SB ensure that the MA provides enough information for the BIA to act on? Bearing in mind that the BIA will have been trained to interpret the legislation and factors contributing towards the placement; this could be seen as a means of ‘dumbing down’ the role of BIA and removing a degree of protection for the deprived person. Also does the MA employ someone to collate all this information, and who pays or trains them as to what is appropriate?
The BIA needs to gain a picture of the setting where the person is being deprived, their inter actions with staff and other residents and the quality of the documentation and the impact of restrictions. Surely it is unprofessional and unethical to sign an assessment off without seeing the person especially as the BIA will be the one in Court or facing the Coroner.
A Solicitor would not prepare a court report without seeing the client, and the BIA report is essentially a document that can be included in evidence for the court so why would it be right for a BIA not to see the client?
I have been to assess people where on paper they appear to meet the criteria but on a face to face interview they are placed wrongly or have capacity to make decisions about their care or I have been able to offer guidance to reduce the restrictions in place. The BIA is required to obtain the persons views, some people may not be able to use a telephone to express their views and only communicate with expressions.
The assessment is seen as an independent overview of a persons situation and is concerned with taking a persons right to liberty away which would surely warrant more than a phone call?
I agree that there are problems with the current system but carrying out specialist assessments over the phone and not seeing the person would in my opinion lead to more DOLS cases being challenged
A ‘desktop’ process contains a presumption of deprivation, and removes the individual from the centre of the process and replaces it with professional opinions and administrative systems. Meeting the need to do ‘something’ neglects the actual objective of the Safeguards, so is not defensible.
Saying there’s no ‘requirement’ in the process that you have to visit the person actually sounds rather facetious. How can you even claim to be protecting a person’s liberty or identifying best interests without seeing them, meeting them, observing them, talking to them about their wishes and feelings? You cannot. We need to get comfortable with a much quicker but person-focused way of working and instead of losing our way like this.
We are a nation going through a transition. It’s opening up very deep rooted concerns about the nations health and how we are going to manage both financially and practically. I get that; but If we lose sight of the individual because of the cost of doing so we lose sight of our integrity to take into consideration the natural human qualities we own over the practical cost saving schemes put in place to mask the real issues.
If we dis-regard what is important such as living conditions, standards and quality of care and more importantly the face to face contact to understand more about the life of the individual. We will fail to focus on what is RIGHT and lost the whole essence of what is in the best interests of vulnerable people; I’m worth more than a desk top assessment thank you very much; my relatives and friends are worth more, Joe Blogss and John Doe, their human beings. So I think you may have gathered by now; that I don’t think anyone should settle for this (desk top assessments); just because it as a way forward to reducing cost and the backlog of DoLs assessments. phew….
I want to leave you all ADASS included in answering this question. Do you really think this proposal is right??
The situation in social and health care, and all those who require a service at the front door continues to be the order of the day, there is a cost for living; and sadly to say you only get what you pay for!!! Like most cases those in charge appear to be more reactive, to a situation that as needed an injection of common sense and support for those needing a service, which again convernes the human rights act, of each and every person. As a county it appears we do a great deal of talking in this area of a support service which is very important, but to suggess a desktop assessment is a ludicious situation, and how it got to this in the first place is a question to be answered.
Desktop assessment sounds sensible with regard to lessening the financial burden on local authorities but not as the DoLS process was intended and that is to safeguard the liberty of the individual. ADASS suggests that low priority persons should be assessed in this way but people who can’t communicate or who have been institutionalised for a long time are entitled to an independent assessment and their situation scrutinised personally. How, without a visiting the person could an accurate assessment be undertaken not only of them but also of their environment? In fact these are the very people who should not have their rights overlooked as it is likely there has been no previous opportunity to independently and objectively assess their situation.
Ignoring the time-scales and failing to do direct assessments clearly puts any authority out of compliance with tne Code of Practice – and knowingly so. They would have no defence if a person deprived of their liberty later sought redress. There could be some very expensive bills down the line.
Can Community Care publish the ADASS advice note?
Without publication it’s impossible to judge the basis for this story.
Given the apparently bonkers advice that the note is alleged to contain, its publication is essential as a matter of good journalism.
Hi, Andy from ComCare here. I’ve tracked down a download link for the ADASS advice note. You can view it here: https://www.adass.org.uk/media/5297/additional-dols-safeguards-final.pdf
I’ve updated the story with the link too.
Cheers,
Andy
Useful to have that link – Thanks Andy.
The document is very honest that it’s the product of pressure and part of the ongoing standoff between local and central government. BIAs and others need to be careful that they are not caught in the crossfire. The arguments for prioritisation are reasonable and it’s not always necessary to have lengthy interviews with persons who have little capacity to comprehend their circumstances. In my experience the “interview” is not so much about complex verbal interaction but seeing the person in the circumstances that may be a DOL and directly observing how they respond in it.
The desktop triage idea is not silly but it depends entirely on the quality and depth of information that gets onto the desktop for consideration. The two solutions offered are not without problems. Either the Information come unfiltered from the managing authority or unqualified staff collate it for the formal assessor to consider at their desk. Either of these situations carries risk if the information provided is incomplete, inaccurate or deliberately biased. Is the BIA accountable for what they don’t know?
Concern is yet again the local authorities seizing a short quick fix without due regard to the standards and criteria laid out under the mental capacity act 2005. Shock horror Daily Mail “social worker did not meet client before depriving them of their liberty!”. There are several cases where social workers fell foul of professional status for not having”enough contact with the client”. This scenario of desktop processing was discussed recently at best interest training. It highlighted the dichotomy of ever increasing lists of people been triaged, but held on the system against true valuation of Deprivation of liberty.
Ultimately the price will be paid by the social worker, and promoted by “have you been deprived of your liberty t” no win no fee type advertisements on television.
It will be interesting to see what the alternative world will be when changes are made regarding this practice once changes are the deprivation of liberty have been considered..
Additional fact is that under the existing mental capacity deprivation of liberty safeguards the local authority cannot tell the BIA what decision to make, however the cards to appear to be slightly stacked to promote a deprivation of liberty outcome. And where the best interest assessor makes a decision, how does personal liability balance out with the decision is made on poor information, and could be questionable that the social worker was not acting in good faith.
Lord justice Mumby identified state sponsored abuse ,this potentially will add an additional level which will be argued at the cost of social work profession.
Under health and safety, they used to say should never carry the Can without reading the label.
And since you are now accountable for the decision you have made based on the information you received it would be unwise social worker to not do the legwork, as I’m sure some well meeting Judge, barrister law lord may hold a different opinion on one’s actions.
DOLS and the additional proliferation of form filling that initiates the process from Adult social care; whilst a necessary requirement, is still very onerous. The interesting thing is while CQC inspect care homes and are not tolerant of any oversight in an application, and I am sure would lead to the downgrading of a service, do not seem to be taking any interest in a government body failing in its duties. (I have applications that have been waiting for 2 years!!!!). And the solution – to find a simpler way – not so that care sector can spend less time on the process and thus helping them, but because councils are failing (and I have to say an overhaul is well overdue), but social care have invested HOURS on this area of the law. When will the giants in social care be stopped from the abuse of power exerted over the smaller bodies that are overwhelmed with form filling, downgrading the service, while ignoring the government bodies?