Guest post by Lorraine Currie: I wouldn’t start from here – A blog about the Deprivation of Liberty Safeguards

[This is a guest post by Lorraine Currie, a former DoLS Lead and currently an associate with WMADASS with a focus on MCA and DoLS.  For a discussion with Lorraine about the MCA more broadly, see our ‘in conversation’ here]

There’s an old joke that goes something like this – a person is lost, they see a passer by and ask, ‘How do I get to such a place?’ the passer by replies ‘If I was going to such a place, I wouldn’t start from here.’

So, I find myself spending time pouring over Schedule A1 of the Mental Capacity Act and wondering pretty much the same.

I hold my hands up and admit that I too have contributed to the situation that we now find ourselves in.

Looking back to see where we started looks something like this, in the beginning there was a scheme, created for a few people. We were told to expect an initial rush but told it would then settle down. Thirty-two forms were created for this small scheme. On day one we waited patiently for the first request to drop out of the fax machine. There was much excitement when one did. Eventually we all got a small steady stream. We became proficient as Best Interests Assessors (BIAs), doing real social work; we were human rights warriors. Then Cheshire West hit. We tried to imagine how this widened definition might affect us, we estimated our new normal, we underestimated it hugely.

In response to Cheshire West the DoLS forms were reviewed, culled, and improved. Some things couldn’t be changed because they were specified in the Schedule. It also seemed like a good time to import some of the good practice we had been developing into the forms. But, that was then and this is most definitely now, almost ten years after.

We battled on with the scheme, but backlogs grew, no one could find an easy solution. Then DoLS scheme was declared not fit for purpose and the new light of the Liberty Protection Safeguards began to be switched on, only now it’s been switched off.

So here I am thinking, if I wanted to get to such a place I wouldn’t start here.

Look with me at the basics of Schedule A1s requirements (the full table I have used follows as as APPENDIX 1)

Remind yourself again about what must be done, taking careful note of things that are not even mentioned (Regulations also state who can carry out which assessments and of course there is the Code of Practice).

In essence then a care home or hospital (Managing Authority/MA) must

• Request authorisation if the conditions are met, keep a record of each request and ensure the person is told about authorisation and understands the effects and their rights and they must keep a record of authorisations which are granted and not granted.
• Give an urgent authorisation if the requirements are met and request a standard at the same time. The urgent must be for up to 7 days in writing and state following …..they must keep records and inform interested persons. Must explain the effect of this authorisation to the person.
• Give the BIA a copy of needs assessments/care plan.
• Notify SB if there is a change in place of detention.
• Must tell SB if the person ceases to meet eligibility.
• Must ensure any conditions on the authorisation are complied with.
• If a third-party request is made, they must supply all the details they would have if they had requested the authorisation.

This isn’t too onerous and in general I think this is now custom and practice. I also think that on the whole Forms 1 and 2 do the job but I don’t think they are completed in the most helpful way.

What does the Local Authority have to do as the only Supervisory Body (SB) under DoLS in England? As you would expect they must

• Keep a record of all requests.
• Make sure assessments are carried out by someone suitable and eligible and provide BIAs with copies of needs assessments and care plans.
• Give the authorisation if all the assessments are positive and decide for how long and whether to set conditions, taking account of what the BIA has recommended. This must all be in writing and copies must be sent out but there is no detail in the Act about how any of this should be done and no concept of an Authoriser or signatory.
• They must give notice if an authorisation ceases or is suspended.
• They must carry out reviews and third-party assessments if requested.
• They can use assessments again if they are under 12 months old and still appropriate and in the case of a best interests assessment if they have considered representations from the RPR or IMCA
• They must appoint a representative.

So apart from some places which have been over-laboured (e.g. suspension) it really appears quite straightforward.

What do assessors have to do? Let’s look first at best interests assessors.

They must

• Have regard to the Mental Health Assessors conclusions.
• Consult the Managing Authority
• Have regard to needs assessments and care plans.
• Record the name of every interested person they have consulted but it is not specified in the Act that they must consult them.
• State maximum authorisation period and if there’s an unauthorised dol.
• Consider if it is appropriate by reviewing to vary conditions.
• Keep written copies of the assessment and give them to SB.
• Take account of any information provided by RPR or IMCA.

Fairly minimal requirements really which we will unpick in a moment. What about the Mental Health Assessor then, what is their role? In carrying out their assessment/s they must

• Consider how the persons mental health will be affected by being a ‘detained resident’ and must notify BIA.
• Keep written copies of the assessment and give them to SB .
• Take account of any information provided by RPR IMCA.

So, if I was starting again to get to where we are today, I might conclude something like this: Once a request for authorisation is received it will be accompanied by the care home or hospitals care/treatment plan. I will appoint two assessors and provide them with the necessary information. I might expect a doctor to visit the person and confirm the diagnosis and eligibility and consider how the arrangements in place will impact their mental health (and carry out a mental capacity assessment). I would then provide the BIA with the existing care and support plan which I would expect them to use as their primary source of information (apart from self-funders). They would consult the care home/hospital and anyone else they find it necessary to consult based on what they have read in the care and support plan or needs assessment. At no point are visits mentioned and there is no requirement specified to consult the person themselves or anyone apart from the care home/hospital (in relation to the DoLS process but there are of course requirements in s4 MCA) The nature and length of assessment isn’t specified.

It appears to me that this scheme is more like LPS than we thought. Its more about scrutiny of care plans with some necessary consultation. The sticking point really is the mental capacity assessment. If only we were able to use those carried out by social workers in the course of their usual business, but we can’t (or can we?) So, this suggests that at least one assessor must see the person to complete a mental capacity assessment.

Once complete these documents are returned to the SB who must authorise if they are all positive. There is no requirement about how this is done but the Act does specify what must be stated on the authorisation.

How then did we get such a convoluted process? Where is the rationale for both assessors visiting the person or for lengthy consultation? Of course, the MCA requirements in general are also present here for consultation with others for a best interests decision and the general assessment of capacity requirements in Ss1,3 and 4 in particular.

I think we need to return to basics; I don’t think we want to return to basics because the BIA role is a very fulfilling role in both social work (or related profession) and human rights terms. But as I frequently say we simply do not have this luxury any longer when 41,000 people are dying without any protection being afforded them and at least 125,000 still wait.

I think we need to have this discussion in our BIA forums, in DoLS Leads Groups and everywhere we are discussing this human rights crisis. We need to trace our own steps to ask how we got here? How did the scrutiny role become so demanding? How did we expand the BIA role so much beyond what the Act seems to require?

I am not saying that we should ignore the excellent practice we have developed but we must be able to import it in a more proportionate and pragmatic way to bring it to bear where it is most needed, not every assessment, every time, but focused on those situations where a substantive protection is needed.

Will you join me in this debate?

Lorraine Currie

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APPENDIX TABLE OF ‘MUST Dos’ FROM SCHEDULE A1

Schedule A1 MCA
Managing Authority	Supervisory Body	General	BIA	MHA
Must request authorisation if conditions are met	Must ensure all assessments are carried out by someone suitable and eligible. No definition of ‘assessment’ but regulations state who can carry out assessments.	What a request for a SA must include	Best Interests assessor must consult MA	Must consider how persons mental health will be affected and must notify BIA
Must keep a record of each request	Must keep a record of all requests	Regs may set time periods for assessment must be carried out (21 days)	Must record the name of every interested person they have consulted	Must keep written copies of the assessment and give to SB
Must give the BIA a copy of needs assessments/care plan	Must give BIA copies of their needs assessment/care plan		Must have regard to MHAs conclusions	Must take account of any information provided by RPR IMCA
Must notify SB if there is a change in place of detention	Can use equivalent assessments if less than 12 months old and there is no reason it is not still accurate but if using equivalent assessment Best Interests must take into account info by RPR, IMCA		Must have regard to needs assessments and care plans
Must ensure the person is told about authorisation and understands effects and rights.	Must give authorisation if all assessments are positive and must not give if any are not positive. No instructions as to how this is carried out i.e., no concept of an Authoriser/signatory. If any assessments are negative they must tell any other assessor to cease their assessment.		Must state maximum authorisation period
Must keep record of granted and not grated	Must decide the period no more than best interests assessor recommends		Must state if there’s an unauthorised dol
Must give an urgent if requirements are met and request a standard at the same time.	Must be in writing and state all following ….		Must consider if it is appropriate by review to vary conditions
If give an urgent it must be up to 7 days in writing and state following …..	Must give copies as soon as practicable		Must keep written copies of the assessment and give to SB
Must keep written record and inform interested persons.	Must have regard to BIA recommendation before setting conditions		Must take account of any information provided by RPR IMCA
Must explain the effect and keep a record.	Must give notice authorisation ceased
Must tell SB if the person ceases to meet eligibility	Must select assessors in response to third party requests, not if they wouldn’t be eligible or appropriate.
Must ensure any conditions on the authorisation are complied with	Must keep record of 3rd party requests and copies must be given and everyone notified everyone of outcome
Third party request MA must supply all detail they would have	Must decide if to extend urgent and must give notice of decision
	Must give notice urgent ceased to be in force
	Must suspend and give notice and again when not suspended
	Must carry out a review if requested by … Must give notice of the review, decide which grounds etc.
	Must vary or terminate following review and give notice/ written record
	Must not select an assessor unless suitable, eligible and must not be same person for best interests and mental health
	If using equivalent best interests assessment must consider, any representations from RPR/IMCA
	Must appoint a representative as soon as practicable after authorisation and if a vacancy occurs during authorisation
	The representative must not be appointed unless they can maintain contact with the person and represent and support them in relation to DoLS.