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.

 

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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.