Alex RKThis is a guest post from Lorraine Currie, West Midlands ADASS Associate, Mental Capacity Act and Deprivation of Liberty. For a discussion with Lorraine I have recorded previously to get a sense of her and the values she brings to her work, see here.
The anniversary of Cheshire West is upon us and we, like it, have sometimes veered off track. It’s almost a foregone conclusion now that anyone with issues around mental capacity or with certain diagnoses are routinely put forward for DoLS applications. We see this starkly in the numbers of application from acute hospitals the majority of which are unable to be processed due to the persons discharge.
Have we stopped thinking too much about DoLS? Is it the easiest option to fill in a Form1? Do CQC support this process and is it harder to defend why you haven’t requested a DoLS authorisation? Do we really have over 300,000 people deprived of liberty? If so, why? Have we forgotten the meaning of liberty, the exercise of liberty, the link to autonomy and along the way lost sight of the persons will and preference.
I find some sympathy for the views expressed in the recent case of Peterborough City Council v Mother (Re SM) [2024] EWHC 493 (Fam), although relating to a 12 year old child:
“….there are a number of aspects of the above restrictions which do not amount to a deprivation of liberty. In my view (a), (b), (c), (d) and (e) are on any analysis part of her care provision, and not actions which deprive her of her liberty”.
I have seen many Best Interest Assessments which in their attempt to describe the concrete situation of the individual become extensive care plans. Yet the care arrangements described do not require restrictions in order to provide them nor do they require the person to be a ‘detained resident’.
I am sure we have lost our way in a Cheshire West maze rather like Alice trying to find her way with the Cheshire cat “If you don’t know where you are going any road can take you there.”
Do we know where we are going? Have we strayed so far from Article 5 and the right to liberty that we can only conclude no one has liberty once they enter a care home? Do the situations we consider and reflect on get anywhere near the paradigm of the prisoner in the cell?
I have spent some time reviewing the Schedule in order to pair the roles back to their original form. There are numerous things we do which are not in the Schedule and do not appear to have been the original intention.
BIAs do not even need to see the person, their main evidence base is the care plan and the needs assessment. BIAs do not need to consult every appropriate person; they must record the names of any they do consult.
In my role as an Associate for the West Midlands Association of Directors of Adult Social Services (WMADASS) I have recently reviewed and amended/updated various DoLS related documents.
The documents that have been reviewed are:
- The full set of ADASS Forms
- The priority tool (in conjunction with ADASS and the National DoLS Leads Group)
- The Rights Guide
- The Guide to completing Forms.
It may be that others will also choose to use these documents so I wanted to share a brief walk through of the changes and the reasoning.
Much of DoLS pre–Cheshire West history has been lost and many BIAs have only practised since 2014. This current period has been very different from the previous ten years and many will not even remember the original forms.
The changes we have made are in the context of an out-of-date Code, out-of-date Forms, indefinite delay to LPS and a lack of policy direction from the Government.
DoLS practice has moved quite a long way from both the Schedule and the format of original forms. It is important to remember that the current Form 3, for example, was originally four separate forms. The Mental Capacity assessment was a minimal record in its original format requiring only one box of evidence rather than evidence of each of the four functional elements.
Much of the Best Interests Assessment content was added when the first full review of forms was carried out post Cheshire West. Although the forms were simplified and merged there were also elements added. ‘Views of the person’, was never a field in its own right and ‘Background’, was never a field in its own right, nor was there any requirement to detail documents seen.
Many of these additions became part of the forms based on an assumption that this would be best practice but, the Tsunami of DoLS applications had not really hit us. Does that mean we must abandon best practice due to numbers, absolutely not but I strongly believe that we must target the precious resource of a BIA where there is most benefit.
Some DoLS assessments are simple, straightforward, and bring no added value to the person’s life other than the routine check to prevent arbitrary detention. The safeguards are themselves the safeguard.
Other DoLS are complex; requiring the full weight of analytical skills in which the BIA has been trained.
Does a long assessment equal a good assessment? In my view it doesn’t. A BIA assessment should be analytical, weighing the differing views and arriving at a conclusion. Carrying out the assessment is one thing, recording the conclusions is quite something else.
I have seen two sides of A4 simply listing documents seen. I have seen Best Interests assessments which are extensive care plans in their own right. I have seen the same information from the mental capacity assessment cut and pasted into views of the person and again into the best interests outcome.
BIAs need to own their skills with confidence. They are no longer practicing simply as the social worker, nurse or occupation therapist, which is their main qualification, they are an additionally qualified expert in the field and this expertise must be targeted.
So, what changes have we made to reflect this? Very few really!
Summary of the changes:
Form 1: Name, address and contact details merged. Purpose of the authorisation is merged into one box no further changes.
Form 2: Name, address and contact details merged. Purpose restated unless there are any changes they do not need to add more detail.
Form 3: Name, address and contact details merged. Mental capacity assessment format and ordering corrected. Summary of background information shortened; options added in a table format. Details of documents seen reduced to confirmation.
Form 3 Report style: This form has been introduced to improve BIA practice and reduce repetition. It is a new format altogether where the views of the person and others and background are all contained with one report section to avoid duplication. Every element from the existing form 3 is present as above but we are encouraging BIAs to write more succinctly with less narrative and more focus on analysis.
Form 3A: Deleted. This form has gone on to be used in ways that were never anticipated. It was a pre–Cheshire West form to be used where the BIA found no objective evidence of a deprivation of liberty occurring.
Form 3B: The mental capacity ordering is corrected.
Form 4: The mental capacity ordering is corrected.
Form 4B: This is a new Form to mirror 3B. A proportionate renewal form for Mental Health Assessors.
Form 5: Name, address and contact details merged, the purpose of the authorisation is now a pre-populated standard sentence, the scrutiny record is removed and replaced with signature only in line with the original 2009 Forms. The representative page is made clearer as to who should receive this. NB: This form does not remove the need for appropriate scrutiny but does remove the need to write a record of it.
Form 6: Shortened in line with the requirements of the Schedule to make a notification only.
Form 7: Name, address and contact details merged.
Form 8: Name and address merged.
Form 9: Name and address merged.
Form 10: Name and address merged, and the form has been reordered to match requirements better.
Form 11: Name and address merged.
Form 12: Deleted as no longer required.
As can be seen from the above list the changes made to the forms are minimal. This has not been a comprehensive review such as the one in 2015 but rather a correction of some errors and some improvements to practice which should produce efficiencies.
Initially some people may be concerned about not recording the authoriser scrutiny. The original DH forms had no record of scrutiny they had only a signature. The Schedule requires nothing more than a signature because the lynch pins of the whole scheme are two highly experienced assessors: a BIA and a Mental Health Assessor. Their reports should be good enough, they should not require complex quality assurance processes.
In cases where a record of scrutiny is really felt to be necessary, I am sure this can be inserted. Often, in my experience this record is a rehash of what has already been said at least once, possibly more times.
The need for robust scrutiny remains but as in the rest of social care a signature means the signatory is confirming that the document has been read, understood and is of an acceptable standard to withstand further legal scrutiny.
There are other actions that we can be taking in this phase of DoLS Mark three. Proportionate and pragmatic assessments, consideration of who carries out authorisation and how, using equivalent assessments much more frequently and ensuring out MHAs also use proportionate assessments.
So, we may possibly be able to save some authoriser time by removing a written record and we may be able to reduce BIA time by getting them to focus on their role and their role only. They are not care managers, they are not there to fill gaps in social care reviews or assessments, they are not safeguarding professionals (although all of these things will be part of their deliberations) they have a unique and extremely valuable skill set.
I welcome an elongated gap in the LPS process if we can fill this gap by genuinely engaging with questions of liberty, but we must at the same time face the practical reality of large backlogs and continuing applications, so we must focus our efforts proportionately and a new priority tool will help with that.
Proportionate assessments do not mean shoddy work or cutting corners, but they do ‘mean horses for courses’. We need to evaluate the situations where the full weight of BIA skill is needed, and we need to be pragmatic about situations which do require oversight, but this will simply serve to confirm that everything is as it should be.
