The Six Assessments of DOLS: Who does them?

You will be aware, kind readers, that like the 12 Days of Christmas, there are 6 Assessments of DOLS. I put it that way round because it seems more sonorous than 6 DOLS Assessments, though it amounts to the same thing*.  In the good old days,  we had a form for each assessment, even the age one,  but now those spoilsports at ADASS have simplified the DOLS forms and made things a lot easier. I say, put them in charge of DOLS as a whole and simplify it to the ground.

Here’s a link to their lovely forms.

You will see that there are still 12 forms in total, but that represents an immense saving on the ?24 we had before. I have only ever bothered with Form 1, Form 3, Form 5 (doing a favour for the Supervisory Body by filling in all the details for them) and Form 11 – appointing an IMCA. And of Course Form 4, where I peruse the wisdom of the Mental Health Assessor, known simply as “The Doctor” to most of us.

BIAs who are just BIAs really only need worry about Form 1 (to read it), Form 3 (to write it), Form 4 (to take account of) and Form 11 (to fill in for an IMCA where necessary). And the greatest of these are Form 3 and Form 4 because they contain therein all 6 of the necessary DOLS assessments. And remember readers,  if the Relevant Person (that handy, person-centered, humanistic term for he or she who lies at the centre of the process), fails one of the six, they fail ‘em all.  Job undone.

Medical Protection do a summary of the assessments without the jokes (or my incisive insight?) here.

So in Form 3 we have:

  1. The Age Assessment. If you know the date of birth, no need to estimate their age. We presume the Supervisory Body can work out that they’re over 18 from the DoB.
  1. Mental Capacity Assessment . It might be that the Mental Health Assessor has been tasked with this one.  Let’s face it, they get off pretty lightly for the money they’re paid per assessment, so leave them to it.  It has been known where I’ve looked at a Form 4 and the doctor has said that the RP either lacks or has capacity but is so way off that it makes you wince,  that I have done my own.  Because we are just better at it than most of the doctors.  I digress, but many s12 doctors would section a chair, similarly they often err on the side of “doctor knows best” and presume incapacity. I don’t have to be kind here – it’s my blog. But with a good doctor who knows his/her onions,  you just leave this blank.
  1. No Refusals. That’s always the BIA.  Is there any Advanced Decision, LPA or Deputy in place that would conflict with the DOLS. Remember LPAs who have health and welfare can object to DOLS and stop it in its tracks.
  1. The Best Interests Decision. That’s always the BIA’s and is the biggie, which I will look at in greater detail in another post.

 

In Form 4, we have

  1. The Mental Capacity Assessment. See above. Usually the doctor is tasked to do this.
  1. The Mental Health Assessment. Only a doctor who is approved under s.12(2) of the Mental Health Act  can do this. Not the BIA. Not a psychiatric nurse, no matter how good they are.
  1. The Eligibility Assessment. This can be done only by someone with additional training in the Mental Health Act – the s12 doctor or an AMHP. If the BIA is also an AMHP, they can do this. But why cheat the doctor of their work?  Basically this provision rules out DOLS if the patient is already under another Article 5 regime – such as a section of the MHA, either Part 2 or Part 3 so a civil or forensic section  – 2, 3, 4, 35-38, 44, 45A, 47, 48 or 51.   Or on s.17 leave,  or on Guardianship, CTO, or Conditional Discharge.  Except I think the ADASS form here is misleading Not that you need to worry about it as a BIA.

 

EXCEPT:  Read this article from 39 Essex Chambers about caselaw about DOLS and Guardianship, where it is clear you can have both at the same time.  It may be ADASS Form 4 is allowing this, but it doesn’t look like that to me and it seems to suggest that where you have Guardianship, you can’t have DOLS.  Put my misunderstanding about your form right please ADASS.

AND.  I went to training where it was suggested, unlike what it says on the ADASS form, you could have DOLS where someone was on s17 leave. The case would be where the DOLS was for a separate detention. So, where a patient on say, s3 of the MHA, was rushed from the psychiatric unit where he was detained, to a general hospital for treatment of his heart condition, then that would be a separate detention, and where he lacked capacity  to consent to a hospital regime that met the Acid Test, that detention for a separate purpose (i.e. treatment of his physical rather than his mental illness),  would require a separate authorisation, most likely under DOLS.  39 Essex Chambers, as always provide a useful review of this.  Their article is entitled “An unholy mess – s.17 leave and treatment for physical disorder.  You’ve got to laugh.

HOWEVER,  to be fair to ADASS. They have  guidance notes do explain these discrepancies and I supply a link here because I think you should know. It’s just these discrepancies are far from clear form reading Form 4 alone. It’s just another example of the crystal clear interface between DOLS, MCA  and the MHA.

*Not being a lawyer or a doctor or in any way otherwise writing for an employer I can employ any style of writing I like and I choose this mildly annoying one.

DOLS: Why there’s no rush to fix it.

I was reading articles about DOLS on the web here, as you do, and I saw a comment by David Harries  (August 13, 2014 at 12:54 pm) who said, “I also think that Governments (England and Wales) have not grasped the severity of the issue. The workload has been dumped on Councils and their employees.”

And I thought that was interesting and it brought to mind a comment made to me by a woman who had been giving training to us, who had come all the way from London (thus lending her authority). We were discussing the severity of the issue of DOLS and she said that as far as she believed, the Department of Health was fully aware, knew DOLS wasn’t being properly implemented, knew it was under-resourced, but weren’t  in a rush to do anything about it.  The DoH knows it’s broken but it serves its purpose and reforming it is not really a priority.

Why would this be? As we know, the Deprivation of Liberty Safeguards came about after the UK Government got spanked in 2004 by the European Court of Human Rights for being in breach of Article 5 of the European Convention on Human Rights – that is the right to liberty.   The British state was simply keeping people in detention for years without any due process on a welfarist basis.

With DOLS now in place, the UK Government can show to the European Court that it now has a mechanism with is compliant with Article 5, even if it doesn’t work.  When Local Authorities say that they can’t operate the system with the resources they are given, the Department of Health holds a hand up to its good eye and says, “I see no ships.”  They have a mechanism in place to prevent them getting chastised by the ECtHR and avoid big fines. That’s all they need. They don’t need it to work. Their focus is not the human rights of the people detained under DOLS. It’s all about getting away with it.

On 27 March 2015, the Policy Lead for MCA/DOLs at the DoH wrote a letter to the Local Government Association, in response to their complaint about the woeful state of DOLS implementation.  It’s a lovely letter from the DoH. It firstly agrees that there has been a stupendous increase, then it compliments the local authorities on their sterling work and exhorts them to find efficiencies before bunging them £25 million.  It also notes that the Law Commission is doing work on DOLS reform, but it’s basically a letter that gives no indication of concern at “the severity of the issue”.

Then there’s BREXIT.  (See how I put it all in capitals?)  The British public – like judges – are not philosophers and therefore often fail to come to sensible decisions. I am reminded here that the Financial Sector is also driven by sentiment rather than sense. So, the British Public and the Government, which is made up of people who are exemplars of this British Public, have a sentiment to get rid of everything “European.” Human Rights have been branded “European” and therefore something to get rid of.  DOLS, by extension, is a child of the European Convention on Human Rights and one could imagine when politicians of a certain itchy persuasion hear that it’s come about in this way, will want rid of it.  Or if they can’t get rid of it (and I bet they are plotting) they will certainly not rush to fix it.  Civil Servants are not irrational, mainly, but the views of politicians are intimately related to those of the woman in Carlisle who voted “Out!” because they had closed her butcher’s shop on the corner. Or the woman on the radio in Teeside who voted out because the only thing Europe had ever given her was some free butter in the 1970s (…and rebuilt Middlesborough?)

Never mind about that.

On 11 December 2015, the Department of Health responded to the Law Commission’s consultation and initial proposals on DOLS.  It didn’t like their proposals on legislation about Supportive (rather than Restrictive) care.  It did like their idea of a souped up BIA who would become some kind of case manager and be called an AMCP.  This title is clearly to chime with the AMHP designation, but the last thing an AMHP is is a case manager – except for a very brief period.  Calling a BIA an AMCP is not really going to solve the problem of not having enough people to do the job.  The creation of the AMCP is supported by the Chief Social Worker, but I’m not actually sure what that means other than representing staking claims for future empire building.

On one issue, I completely agree with the DoH – the situation in a short stay acute hospital and a long stay nursing home are so different that there should be two schemes, one for treatment hospitals and one for residential placements. The DoH talks about the relatively small number of cases where both MHA and DOLS are possible,  but I see loads of these!

Anyway, DOLS will be with us for a while yet. The DoH hopes that the Law Commission would complete a draft Bill by the December 2016. And after that you can do a conversion course (probably at your own expense) and become part of the AMCP shortage.

 

Employment Opportunities for Best Interests Assessors under DOLS.

Which Authorities Use Independent Best Interests Assessors?

In December 2015, there was an article in Community Care which said that regional DOLS leads, supported by the Local Government Association were inviting independent BIAs to sign up to a central list so that those LAs that use independents could have fast access to them.

As we know the demand for DOLS assessments, and thus BIAs has risen enormously – so for the second quarter of 2016 alone there were 195,840 applications (the greatest number ever) and 105.055 applications were completed, around half within 35 days, though the average duration for a Supervisory Body to complete a DOL application was 83 days. There was great regional variation too with the North East of England seeing three times as many applications compared with London (even given the disparity of population).  Very interesting also, 84% of standard authorisations were for less than 6 months. I found this figure interesting because I had suspected that the tendency where Supervisory Bodies were overwhelmed would be to grant for the maximum of 12 months.

In response to this huge increase, Supervisory Bodies, usually the Local Authority (probably always now since the extinction of Primary Care Trusts…) have been training their own staff to do DOLS assessments.

One of the problems with this approach is that with cuts to LA budgets, social work teams have seen their social worker numbers slashed and those in frontline teams are struggling to meet Care Act responsibilities, and the burgeoning growth of Safeguarding (not that I’m complaining about that).  In addition, many of these apparently trained BIAs were trained a while ago and have NEVER done a BIA assessment. As such, human nature being what it is, they will cleave to what they know.  My experience is that even very experienced AMHPs who are nominally qualified as BIAs, will shy away from doing DOLS assessments because  they feel they don’t have up to date knowledge. Let’s face it, getting to know your way round DOLS legislation, makes knowing the Mental Health Act look like a walk in the park.

As I noted in a recent post, the average time a DOLS assessment takes is about 12 hours, though some speedy hares can do them in 7 ish.   I don’t think that Social Work teams have the luxury these days of sending out their staff for these chunks of time.

One solution is to set up a dedicated DOLs team and not rely on hard pressed social workers in the normal teams. Certainly back in 2014, from the articles I read, this was a common historical solution. I’m not so sure how it’s faring now. I know that Cornwall did have a team of 10 BIAs, but that was a well-resourced exception.  I heard (possibly dated) that Gwynedd only had one and he/she was off sick. (Dim syndod efo’r holl waith buasai’n rhaid iddi ei wneud!).   In Solihull in 2014 there was a team of 2 full time BIAs (What’s their population??).   In Barnsley, 3 BIAs and Rochdale were considering a similar team (this info may be dated). In my own area there was a team of BIAs – about 6 – but I think that arrangement has come to an end and the Supervisory Body is considering going to agencies (allegedly) to meet their statutory obligation to do DOLS assessments.

There is a temptation to make this a combined BIA/AMHP team as many of us are dual trained, and being dual trained brings so much enrichment to both functions.  However, to any manager reading this who thinks “yes, what a great idea,” I would caution – go and examine your head.  The two jobs run interference with each other.   “I’m just going to do a DOLS assessment, see you tomorrow” then 5 minutes later two urgent MHA assessment requests come in.  And less urgent DOLS assessments would always get pushed to the back of the queue by MHA assessments. No, no, thrice no.

In addition, where you train your own staff, you have to release the staff to train them, pay for their training and factor in 18 hours CPD a year to let them maintain their status.  People at the Local Authority are probably scratching their heads and saying “oh, no, no, no” just like the dog in the Churchill Insurance advert.  They are going to try to think of some other method of squaring the circle. Stands to reason.

And that seems to be:

  • turning to agencies, which are only too happy to snap their corporate hands off for the work, to manage the deluge.
  • Or directly to independent BIAs.  I think that LAs prefer dealing with agencies because it is administratively simpler.  They need a BIA, they phone the Agency – they don’t have to consult their list of independents and ring them round to find that lots of them are otherwise engaged (in the Bahamas on their new found wealth). Invoicing is simpler.  It’s probably more expensive for the Supervisory Body (almost certainly) to use agencies over independents.

There is no reliable source on which authorities are using independents over (or as well as) agency BIAs.  I heard that Camden does.  I have done one job for Sunderland as an independent and I understand that Cheshire and Lancashire  use independent BIAs.  I see from the web that In April 2014, Leicestershire requested tenders for the provision of independent BIAs across their area with a £1,000.000 estimated value. I’d guess agencies would bid for that one.  Barnet in 2015 had to go to their Policy & Resources Committee to seek approval to continue to use independent Mental Health assessors and BIAs, so they still use them…

The key issue would be how do you find independent BIAs when you need them?

Some LAs have got together and created a central list for independent BIAs. If you are available to do independent Best Interests Assessments under DOLS and want to be added to the central list, email Sheila Williams on rostrup2014@gmail.com

This list is to be found on the ADASS website  here for October 2016 for those who want to employ independent BIAs, or check if they’re on it. There are 186 independent BIAs on this list. Git amang it.

The DOLS gold rush?

There is a current high demand for qualified Best Interest Assessors …

Earlier this year, I was at a Best Interests Assessor conference run by Edge Training at one of the Inns of Court. I was sitting next to a man from the Midlands who had just resigned as a social worker to become an independent Best Interests Assessor (BIA). He was very enthusiastic about the change, claiming that he was paying off his mortgage double quick and had already booked a luxury holiday to India with his wife.  He had no regrets turning his back on his old local authority and was enjoying the flexibility and, indeed, the increased wealth his new role as an independent BIA was bringing him.

He’s not the only one I’ve heard from. Apparently social workers and nurses, in fact anyone who’s BIA trained, is able to coin it these days.  Another colleague of mine worked as an agency worker for a year and a half, bough a house and is now taking a year off to go round the world!

I was curious about this, but wanted to do some research.

So let’s look at money (figures researched in October 2016):

The old fashioned way: as a staffer

£25,000 – £34,000  – West Berkshire Council

£31,635 – £37,629 – Islington, London

The interesting thing when I was doing my searches is that there are very full full time jobs being advertised for Best Interest Assessors within Adult Social Care teams. I don’t know why this is, my only guess is that those who become qualified go onto the much richer pickings of agency or independent.

In my local authority,  (which I don’t work for) they are in the process of moving from a system of around 6 BIAs working, and failing, to cover the DOLS request backlog, to bringing in the agencies, which must cost the LA more, surely? Although once you calculate the on costs of employing someone and then the convenience of being able to suddenly stop paying for agency workers with no redundancy, no HR, no union involvement, maybe it does work out for them.

It’s a market economy after all…

 

Still a partial slave: on an agency basis – 

With Sanctuary for Lewisham:  £30.00 an hour

HCL Social Care in Luton: £30.00 an hour

Charles Hunter Associates in Central London: £33 an hour.

Aurora Resourcing – Durham: £28 an hour.

Medacs Health Care – Stoke on Trent: £21-£24 an hour.

Caritas in Macclesfield: £33 an hour

Social Work 2000 in Hertfordshire: £50 a day.

Lots of these being advertised. I guess that this is a halfway house. You can still get paid well, £30 an hour for a 37 hour week is still £58,500 a year and if you get a good accountant you will not be paying in tax what the poor staffers in the social work teams have to pay.

 

Free at last: as an independent BIA

This is the much touted “gig economy.”  It used to be called piecework when it was less fashionable, or even zero hours contracts. It’s much harder to find figures for how much BIAs are paid per assessment. I found an article from Community Care from way back in 2014, which said that councils had racked up a bill of £1.4 million in 6 months and claimed in the headline that BIAs were being paid £600 an assessment. In the body of the article it narrows this figure down to between £350 and £450 an assessment.  My own experience is of being paid £250 – £275.

I have heard it whispered, with a tap on the nose that the best BIAs are being paid up to £1500 to do tricky cases. (Surely am one of the best BIAs who can handle tricky cases. How come no one has rung me with an offer of £1500???)

Of course BIA earning as independents depends on how many assessments they can do in, say, a week. I have heard horror stories of people doing desk-based BIA assessments, without seeing the person. That makes me kinda shudder. Certainly there is software out there (I need to see whether I can get an affiliate link…) that will churn out your Form 3 for you.  Most independents seem to have templates, and I must admit I have knocked one up myself that has the Supervisory Body details on, plus my own and little aide memoires throughout in red saying what I should put in each box. I can possibly post that up here at some point.

There was a survey done in 2015 by Cornwall County Council (link here) into the average time to complete a BIA assessments. If I read it right, there’s a big scatter in how long people are claiming it takes them to do a BIA assessment – from 1 hour to 20+. It should be said that the people claiming it takes 1 hour are very few, while those saying 20+ are considerably more. An article from Research in Practice here  suggests an average of 12.1 hours. I would say that’s about right. With simple ones, I can probably do one in a working day – 7 – 8 hours, though those hours may be split over a week, depending on when you can see or speak to people over the phone (social workers, CPNs, etc)

How does this pan out money-wise?

Role Annual Week Job Hour Time taken
Staff £34,000.00 £653.85 £18.16
Agency £51,840.00 £1,080.00 £30.00
Independent £43,200.00 £900.00 £300.00 £25.00 if 12 hours 3 a week
Independent £64,800.00 £1,350.00 £37.50 if 7 hours 3.5 a week
assume 36 hours in a working week
assume 4 weeks off a year

Of course, if you’re getting more than £300 an assessment, you’re going to do a lot better.

Then you have to take account of the tax regime, as a staffer you’re going to get taxed plus NI at around 33% of your take home and any fees such as paying to park at your place of work (don’t get me started…). As agency or independent you can set yourself up and pay yourself minimum wage and then take dividends, which lets you keep much more of what you earn.  I am not giving financial advice here, just doing some imaginary number crunching. Please don’t base your financial planning on what I’m telling you!

But if these figures are right, then we would be better off going independent.