How prioritisation tool can help councils tackle their DoLS backlogs

By Lorraine Currie

The number of Deprivation of Liberty Safeguards (DoLS) cases handled by English councils hit another record high in 2022-23.

Though councils completed a record 289,150 applications, the backlog grew by 2%, to 126,000, and the average duration of completed cases increased from 153 to 156, year on year.

At the same time, there is no current prospect of the Liberty Protection Safeguards (LPS) being implemented, meaning the sector will not be able to make use of the streamlining of the process that this would entail.

New DoLS prioritisation tool

Against this backdrop, the Association of Directors of Adult Social Services (ADASS) has adopted a new tool to help councils prioritise DoLS applications that was developed by West Midlands ADASS.

Although ADASS has kindly put my name on the bottom, this has been a huge collaboration, involving colleagues across the region and in ADASS nationally and from the National DoLS Leads group.

The original ADASS prioritisation tool was developed by a taskforce very soon after the 2014 Cheshire West judgment, when we still didn’t really know the full extent of its impact but we knew there was an impact.

The use of the original tool very easily results in almost every referral being red (or high priority). This had led to councils having to further triage red cases and develop more complex tools.

Changes related to physical restraint

The new priority tool is in response to that. Most of the key areas which appeared as red in the original tool are still present but tightened up.

For example, the original tool had ‘physical restraint used regularly’ in the red category. However, physical restraint is allowed under the Mental Capacity Act 2005 (MCA) alone (sections 5 and 6), so of itself it does not necessarily mean that a deprivation of liberty is occurring.

So, the new priority tool expands the concept to ‘excessive physical restraint which goes beyond what is allowed under MCA’.

Another oversimplified area in the red category of the original tool was ‘attempts to leave’. The new priority tool tightens this up to ‘meaningful, successive attempts to leave’.

No more automatic priority for hospitals

The new priority tool has removed the concept of setting specific priority. In the original, tool acute and psychiatric hospitals were automatically given high priority.

This has now changed so that high priority is given to acute hospital referrals where additional factors – highlighted in the tool – are present and these cannot be managed, even in the short term.

In psychiatric hospital settings, high priority will now be given when it is ‘a psychiatric setting where the person has been assessed to not meet the criteria for Mental Health Act detention but there is disagreement as to whether this decision is appropriate’.

Some elements of the old priority tool have been removed completely from the red section.

Removal of elements that apply to all

These are things which over time have meant they applied to everyone, for example, ‘continuous 1:1 care’ and ‘confined to a place for a non-negligible period of time’.

These are features to be explored in arriving at a decision as to whether a deprivation of liberty is occurring and which, when ticked by the person making the referral, can result in a case being deemed high priority with inadequate information.

Amber (medium priority) is now applied to situations where the MCA can and should be relied on, particularly in the short term.

Green (lower priority) represents those situations where we know that the Article 5 protection is needed but it is unlikely (on the information provided) to change the care plan in any substantive way. Even though there may be a delay in considering these cases, the process of two assessors considering the person’s situation provides the person with safeguards against arbitrary detention.

Dealing with DoLS renewals 

Many councils vary in their response, or their ability to respond, to DoLS renewals and the original ADASS tool had renewals as high priority.

Some councils are so overwhelmed with new applications that they cannot prioritise renewals. In recognition of this difference, renewals have been taken out of the red category in the new tool, but further guidance is given about the need to risk assess renewals as they represent ‘known’ deprivations of liberty.

The main aim of this new prioritisation tool is to triage and prioritise cases but, in doing so, to highlight the fact that different responses are needed to some requests for DoLS. It is not a one size fits all.

The differing needs of those subject to DoLS

For some people (possibly as many as 80%,) DoLS is a necessary legal protection, one which prevents arbitrary detention, but nothing substantive changes as a result.

These are people who need a periodic check on their situation. But it doesn’t need to be as onerous as for those people who require substantive protection where lots may change as a result of the assessments and the intervention.

WMADASS has also reviewed and updated the forms to administer each stage of the DoLS process, produced new guidance to the forms and developed a suggested standard operating procedure.

The standard operating model is an attempt to draw together all the proportionate measures being proposed in the West Midlands and the new tools and forms, to hopefully realise efficiencies that will help cut backlogs.

It is, however, written in the context of the region having 14 very different councils, with different existing models, different budgetary constraints, different staffing models and different social care system providers.

Making the DoLS process more efficient 

It is our hope that by adopting some or all the measures proposed, we will see efficiencies in the following ways:

1. Electronic or web-based forms: forms that communicate with adult social care systems, go directly where they need to go and eliminate major errors by managing authorities result in a ‘right first time’ approach and are much more efficient.
2. Efficient fully staffed administrative support: admin staff are key to DoLS and are highly skilled in its processes. They can be utilised for some tasks which best interests assessors (BIAs) may currently be doing. Careful review of processes might free up BIA time, which in turn means they are able to complete more assessments.
3. Effective systems for identifying renewals: having a system which identifies renewals in advance means that (at least once) all six assessments can be reused with no further assessments required. This means a second period can be authorised very quickly and easily.
4. Use of pragmatic assessments on renewal: even where the use of six equivalent assessments isn’t possible, shorter more proportionate assessments can be completed by both BIAs and mental health assessors on renewal, directing these skilled individuals appropriately.
5. Completion of person-centred assessments that provide analysis, reasoning and evidence-based conclusions rather than narrative: the changes we have made to form 3 result in a more analytical assessment rather than a narrative that is often cut and pasted several times into the current assessment’s differing boxes. This makes for confusing reading when families receive this. We are moving to a report which contains all the key elements but which is simpler to read and easier to complete.
6. An efficient authorisation process: we have returned to basics and examined what must be done rather than continue with what has always been done. We have returned forms to the original 2009 state and removed the need for written scrutiny by the person authorising.

Making best use of professional resource

Ultimately, it is the two assessors who are the highly skilled resource in DoLS. It is key that we have efficient systems and make the best use of these two professionals.

A proportionate assessment which addresses all it needs to in order to ensure Article 5 compliance need not be long. Some circumstances require complex assessments but, even then, the professional task is the gathering in of this detail and weighing it to arrive at a conclusion.

This doesn’t mean every element needs to be transcribed in the best interests assessor report. Is it really necessary to state that, ‘John was sitting in a comfy high-backed chair in the lounge’, ‘Freda used to keep a variety of animals but especially liked goldfish’ or that ‘Helen enjoys West End musicals her favourite is Les Misérables’?

Given that the greatest challenge currently is a backlog of assessments, councils must examine their processes and interrogate their practices against the potential risks of increasing backlogs; and, without compromising quality, they must maximise efficiency so that everyone who needs the protection of DoLS will get it.

Lorraine Currie is associate for MCA/DoLS at West Midlands ADASS