DoLS checks ‘exposing care failings missed by other assessments’

The much-criticised Deprivation of Liberty Safeguards are helping uncover failings in the care of vulnerable people that have been missed by other assessments, according to professionals. 

A survey of 92 best interests assessors (BIAs), the group of mostly social workers qualified to coordinate DoLS assessments, revealed the most commonly reported ‘positive outcome’ from BIA input was the reversal of incorrect decisions that people lacked capacity to make decisions about their care.

BIAs also shared examples where DoLS assessments had led to people being supported to return home, sometimes from inappropriate care home placements, and instances where the checks had uncovered problems in the way the Mental Capacity Act was being used in care homes and hospitals. The DoLS are used to authorise deprivations of liberty in care homes and hospitals, with BIAs playing a pivotal role by coordinating cases and carrying out the critical best interests assessment.

The survey was carried out by Steven Richards, Director at Edge Training, after a Law Commission consultation found most respondents felt the DoLS had “failed to deliver improved outcomes for people”.

The Law Commission consultation received 43 responses from BIAs. Richards asked BIAs for up to 10 examples of positive outcomes, and received 468 submissions. He said the findings revealed how BIAs had managed to identify and address poor care and “overly restrictive” practice. “Where other assessments (care reviews for example) and other health or social care staff have failed to identify these very real and concrete problems, it is the BIA assessment – a direct independent legally based professional assessment – that does,” he said. “The assessment also provides a means to change the situation and deliver improved outcomes for people. As one respondent noted: ‘I feel extremely strongly that this safeguard has and continues to raise the standard of care for individuals who lack capacity.’”

The snapshot survey will trigger questions as to how common these positive outcomes are in a system that has seen DoLS caseloads rise from 10,900 in 2013-14 to more than 100,000 a year since the Supreme Court’s March 2014 ‘Cheshire West’ ruling effectively lowered the threshold for deprivation of liberty. The pressure the ruling has placed on services, with huge case backlogs racked up by local authorities, led ministers to order the Law Commission to develop proposals to replace the DoLS.

The commission will present its final proposals by the end of the year but an interim statement published in May opened the door for the independent scrutiny role currently offered by BIAs to be radically pared back. The additional oversight could be restricted to a defined group, rather than all people who meet the deprivation of liberty threshold. The government has put pressure on the commission to cut the costs of any DoLS replacement, and delivered a highly critical response to an initial set of more comprehensive draft proposals. There are concerns this will lead to any new system being increasingly reliant on assessments from care staff, without additional scrutiny.

In his report, Richards said: “What appears not to be working effectively in many cases are existing care assessments and reviews for people in care homes or hospitals. The 400+ examples given in the survey appear to be for many people who had had care assessments and reviews of care already but these had failed to identify and address concerns that BIAs subsequently found during their assessment. Why? Because they do not have the legal rigour or focus of a BIA assessment, they can be undertaken by unqualified staff and may not even involve the person having a face to face assessment as under DoLS for the BIA assessment. A serious concern therefore is that one of key proposals to replace DoLS is to rely on these assessments instead.” Richards acknowledged his survey had limitations, most notably that it only asked practitioners to submit positive examples of outcomes, and said he would welcome further research in this area.