Councils turn to ‘desktop
assessments’ as DoLS backlog hits 100,000, Community Care, 4th October 2016
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 interest’s 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.
A DoLS trainer and a best interest’s
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.
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 interest’s assessors, usually
specially trained social workers. Each case involves six assessments, the most
important of which is the best interest’s 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”.
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 interest’s 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 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 interest’s 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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