Making a success of DoLS in the wake of the Liberty Protection Safeguards delay

Councils can learn from their work on preparing for the LPS to improve the Deprivation of Liberty Safeguards scheme, but must do so in the face of significant backlogs and staff shortages, writes Lorraine Currie

Photo by: nito

By Lorraine Currie

The timeline provided by Community Care, from the 2014 Cheshire West judgment to the government’s postponement of the Liberty Protection Safeguards (LPS), is incredibly helpful in reminding us of events we would otherwise forget.

What I would add to that timeline is that the original impact assessment for the Deprivation of Liberty Safeguards (DoLS) estimated that we would be dealing with around 7-8,000 referrals a year by this point in time and, at its height, the DoLS scheme would apply to 20,000.

This is still the basis of funding provided to councils.

Surge in referrals post-Cheshire West

However, on the back of the acid test for a deprivation of liberty set out by the Supreme Court in Cheshire West, there was a tenfold increase in referrals from 2013-14 to 2014-15, since when they have doubled again.

The West Midlands alone had 20,000 cases last year while, across England, councils processed about 250,000 cases. Around half this number remained, waiting for their legal protection, at the end of the year.

The focus should be on the incredible effort of councils processing so much with so little.”

The sector has driven its own improvement at all times since Cheshire West, starting by developing a priority tool and adapting practice, and then, with government funding, reviewing the DoLS forms and significantly reduing their number. These days, it can be viewed as two assessments (forms 3 and 4), which has helped to streamline the process.

For the last four years at least, councils have tried their hardest to engage with plans for LPS despite delays, lack of detail and a very poorly written draft LPS code of practice.

How LPS planning has helped MCA practice

The announcement of delay will mean that many see this work as wasted time. However, in the work I have been doing in the West Midlands, I have urged all councils to focus their efforts on the Mental Capacity Act (MCA), rather than on specific LPS planning.

LPS developments have focused us on some previously overlooked areas, such as the concepts of necessity and proportionality, which are a key part of the existing MCA and not a new thing that LPS will introduce.

LPS planning has also shone a light on this the need to identify deprivation of liberty engaged by the arrangements for 16- and 17-year-olds, which is also not new and needs to continue at a pace.

I do believe there are still ways we can make improvements to the DoLS scheme. We can take some of the policy intentions from LPS and apply them to the existing scheme.

Cut in best interests assessor training

However, we are losing the workforce. Many universities have stopped providing best interests assessor training and BIA recruitment is difficult. This has been caused, largely, by the knowledge that BIAs will need to have practised for a year in order to convert to being approved mental capacity professionals (AMCPs), but no one knew when that year began or ended, so interest has waned.

It is councils who are left with the burden of backlogs and the increasing numbers of referrals, and it will be councils who have to make a scheme, declared not fit for purpose by a House of Lords committee, work. It will be councils who look at improvements and it will no doubt be councils who are criticised for backlogs when the Care Quality Commission inspects.

Meanwhile, 40,000 people died last year waiting for this essential human rights protection. This will no doubt be repeated this year. DoLS is still a scheme which provides this essential protection. There are things the sector can do to make even more improvement, because this workforce cares deeply about people, their rights and promoting the principles of the MCA.

Lorraine Currie was a DoLS Lead in the West Midlands until summer 2022 and also chaired the regional and national DoLS Leads groups. More recently, Lorraine has developed the BIA to AMCP conversion course with Neil Allen (barrister at 39 Essex Chambers) and has been commissioned by West Midlands Association of Directors of Adult Social Services to support councils with LPS implementation.

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4 Responses to Making a success of DoLS in the wake of the Liberty Protection Safeguards delay

  1. Christian Kerr April 12, 2023 at 12:25 pm #

    Great stuff. Constructive, hopeful and helpful. Thanks so much to the author for the cogent insights and to Community Care for publishing.

  2. Alec Fraher April 13, 2023 at 6:09 pm #

    Is this threshold applicable today?

    A deprivation of liberty is ” any restrictions in movement that cumulatively reaches or exceeds 72hrs in a 28day period”

    And, if so what are the rights of the individual, using Habaes Corpus, to go to Court?

    The construction of law under Convention Rights has shifted towards what constitutes an individual liberties and the conditions for restrictions under qualifying rights, no?

    See Sedley LJ treatment of Redmond-Bate v DPP(2000) HRLR 249,257 and commentary by AP Herbert in The British Government and The Constitution (2007) by Turpin and Thomkins pg 734-747.

    Also see Professor Sandra Sandra Fredman’s handling of Lord Hope and Lord Nicholls treatment of Art 3 of the Convention Rights. (ibid pg 748-754)

    The ECHR words in respect of our existing UK Convention Rights merit verbatim copy:

    ” [with regards to care and treatment] ill-treatment [must] attain a minimum level of severity and involve actual bodily injury or intense physical or mental suffering. Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her dignity or arouses feelings of fear, anguish or inferiority capable of breaking an individuals moral and physical resistance, it maybe characterised as degrading and fall within prohibition. The suffering which flows naturally occurring illness, physical or mental, whether flowing from conditions of dention, explosions or other measures, for which the public authorities can be held responsible” (ibid pg 747)

    West Cheshire is itself a narrowed legal narrative, no?

  3. Mick Byrne April 14, 2023 at 8:11 pm #

    Thanks Lorraine. There are some things we can do to stop the last two years being a total waste but LPS was never going to be ‘the answer’ since it could never be cheap enough to please any government and never be as streamlined as we were promised.

    The only option now is a huge spend on DoLS to give the lawful protections people require however unless we can magic up staff it’ll be at the expense of our frontline services either by pinching staff to train up as BIA (if there are courses) or spending huge amounts with agencies, which’s means we can’t do other stuff we ought to doing, I’d rather be developing our own talent.

  4. Alec Fraher April 15, 2023 at 9:31 am #

    It’s difficult to know whether the recent resignation of the CEO at the Edenfield Centre, Manchester is because of the systemic movement towards the removal of EU Law Convention Rights or because of a legacy of crazy adherence to the many EC Directives from DG Grow, (DG Grow is the EC Directorate for Internal Markets and Competition.),that the ECHR mitigated.

    I have written about this elsewhere. The document is detailed and dry. Comprising 25 pages and 6000 words about the contradictory and conflicting nature of the many EC Directives applied to Health and Social Work Services since the Lisbon Treaty in 2009.

    The harmonisation of ‘Professional Standards/Conduct’ being one of these Directives.

    There’s no copy/attachment facility here but the document, submitted to the CQC as a response to their then consultation back in 2009/10, is available free should anyone have an interest.

    For CPD see the work of Prof Gerald Wilstow, LSE. He has written extensively on the consequences of an EU path dependency inparticularly on Health for decades. And, Rudolph Klein, rather surprisingly for the time, in Lloyd’s Bank Review 1984.

    The long run feedback is crucial for social worker’s facing difficulties today; adding a historical policy context might be helpful.