Over 75% of adult directors not fully confident about delivering new deprivation of liberty system

More than three-quarters of adult social services directors are not fully confident they can deliver the new system for authorising deprivations of liberty due to come into force next year, a survey has found.

Eighty two per cent of directors reported having no or partial confidence that they could deliver their statutory responsibilities under the Deprivation of Liberty Safeguards (DoLS) and the Liberty Protection Safeguards (LPS) in 2020-21. The LPS, whichwill replace DoLS, is due to come into force in October 2020 but that may be delayed as a result of the forthcoming election and the focus on Brexit.

The survey findings come after annual official figures showing the number of completed DoLS applications in England reached a record 216,005 in 2018-19, 42% more than the 151,970 recorded two years previously.

However, the number of completed cases fell short of the number of new applications received in 2018-19 – 240,455, up from 227,400 the year before – meaning the number of applications left unfinished at the end of the financial year has continued to grow, reaching over 131,350.

Like DoLS, the LPS establishes a process for authorising arrangements enabling care or treatment which give rise to a deprivation of liberty within the meaning of Article 5(1) of the European Convention on Human Rights (ECHR), where the person lacks capacity to consent to the arrangements. It also provides for safeguards to be delivered to people subject to the scheme.

The government has confirmed that for up to a year DoLS will run alongside the LPS to enable those subject to DoLS to be transferred to the new system in a managed way.

Survey findings unsurprising

Beverley Latania, co-chair of the Adult Principal Social Worker Network, said the lack of confidence around DoLS and LPS wasn’t surprising.

“DoLS as a process hasn’t worked well for a lot of councils so far with long waiting lists and delays, overwhelming paperwork and lack of ability to act quickly when someone objects to their recommended placement,” she said.

Latania said the current timetable for implementing the LPS left councils with little time to act. While the primary legislation for the new system – the Mental Capacity (Amendment) Act 2019 – is in place, the detail of how it must be implemented will be set out in regulations and a code of practice, none of which have been published in draft yet.

Latania said there were a number of issues that required resolution in relation to the creation of a new role – the approved mental capacity professional (AMCP) – whose responsibility would be to review certain cases to ensure the statutory conditions for authorising a deprivation of liberty were met. They will, in effect, replace the current best interests assessor role and, as with BIAs, most AMCPs are expected to be social workers.

“The need to develop courses for AMCPs, have a transition pathway for existing BIA’s to AMCP’s, the needs to provide evidence of knowledge and skill etc is all worrying for frontline workers but also for managers and directors,” Latania added.

“This also comes at a time, where councils are having to manage savings but the burden or cost of the above is unknown.”

“Still lots of unanswered questions”

Latania said there were still “lots of unanswered questions” which could only really be addressed when the code came out, including: .

• Should councils have an AMCP team?
• Should workers undertake AMCP duties on a rota basis?
• How do councils support an overstretched workforce who already carry high levels of caseloads and then take on AMCP work as an additional remit?
• Will AMCPs receive extra payment and if so what will this be?

When asked what the change of legislation would mean in practice, Latania said: “I don’t think anyone really knows.”

Though the LPS will have a wider scope than DoLS – taking in people in supported living or home-based settings as well as those in care homes and hospitals, and 16- and 17-year-olds as well as over-18s – it is designed to save time per case by providing a more streamlined process for authorising deprivations of liberty. Also, responsibility for managing cases will be split across councils, clinical commissioning groups and care homes in order to reduce the workload on local authorities.

“One hopes that the impact on the council in terms of cases will be reduced with more home managers having to take responsibility for assessments,” said Latania.

“However again there are lots of questions about who is going to support, upskill and monitor those care homes in order to ensure the safety of its residents and to avoid conflict of interest in regards to keeping someone in the home for monetary value/gain,” she added.

Latania said “great transparency and openness” was required in order to improve confidence around completing DoLS and LPS.

“Time is also a factor in order to train, embed and get systems, pathways and process up to scratch.”