Guest Post by Lorraine Currie

For the last few months, I have focused entirely on DoLS. LPS has no longer been part of my thinking or doing. After the initial moments of ‘what a waste of effort’ and so on, I simply put that aside and decided to look at DoLS through an LPS lens.

Having had an operational break from DoLS I came at it with fresh eyes, and I can’t help but wonder why we ever did some of the things we did. I’ve also decided to focus entirely on the Schedule, not the interpretation of the Schedule we found in the DoLs Code of Practice as it is so out of date. The following is what I’ve been thinking and ultimately what has led to me to hope that DoLS and LPS can breed and produce a hybrid offspring, which I cannot think of a name for.

Referrals
DoLS has a very clear beginning. It also treats the same those who are offered social care and those who fund their own care. Form 1 starts the whole thing off. It is clear and concise and is made even better if a portal or online form is used. Of course, the downside is that it only applies to hospitals and care home settings and only from age 18. Are these two matters something which can be solved by widening the legislation, rather than spending time making changes to LPS in the light of the Consultation (responses not yet published) could we instead look at changes to DoLS by amending the MCA? I like to think so.

DoLS is also set up in law for the process to happen in advance, up to 28 days before required. This was a big selling point for LPS, but it was always the parliamentary intention for DoLS. So, the question I have been asking is why don’t we do DoLS 28 days in advance and why would this work any better with LPS and what could we do to improve this? A great benefit of LPS (on paper) was its link with frontline practice, but would that have worked in practice? The Care Act wasn’t amended to add this function and social workers are busier than ever just trying to keep up with Care Act assessments and reviews. There is nothing to stop us taking the principle of 28 days in advance and ensuring that front line staff ensure a DoLS application is submitted when they are thinking about care plans which might result in a deprivation of liberty.

The resulting issue will be the same whether it is LPS or DoLS that Councils have to proritise who to assess first due to those unassessed. Again, there is no evidence to suggest that those unassessed would have been or will be, addressed prior to LPS implementation. Rather, the challenge is to ensure that what comes in also goes out; in other words that Councils can process all requests in time just like the good old pre-Cheshire West days. This is the challenge we must solve whether it is for LPS or because DoLS remains for several years to come.

The assessments

There are six qualifying requirements for DoLS whereas LPS boasted only three; however, DoLS requirements really boil down to two assessments completed by two assessors, who between them confirm these six requirements. The nature of the assessor is specified in the Schedule but nothing at all about the nature of the assessments. Why then, did they become so lengthy?

Most of the requirements for DoLS are straightforward but the best interests requirement is convoluted and poorly drafted which results in some of the current issues. Given that there should have been a prior best interests decision in relation to the options for care presented to the person (in funded cases), it seems slightly odd that a different assessor must come along and make a further best interests decision this time with a slightly different emphasis.

Is there room to import the concept of a determination made by a suitably qualified person on an assessment made by another professional? It is also poor drafting that determines best interests means three things are satisfied 1) necessity 2) proportionality and 3) best interests…..note the strange loop.

The Schedule also introduces the idea that regulations could specify different time periods for ‘different types of standard authorisations’: what did they have in mind here I wonder? Of course, the time period for DoLS is never going to be more than 12 months but this could be easily amended to extend to the three years of LPS. Additionally, the Schedule seems to have tried to introduce a concept similar to the idea of nearest relative, by introducing ‘interested persons’ yet these people have no role or power. Neither must they be consulted yet practice has grown up to believe that any and all interested persons must be consulted. There is a consultation requirement in s4 of the MCA in relation to best interests decision making and any interested persons who are consulted by the BIA must be named and their details given by the BIA. But this is a different consideration and not an instruction that they must all be consulted.

Use of equivalent assessments

The reuse of an existing assessment is allowed as long as it is not more than 12 months old and there is no reason to believe that it is not still accurate. This is a great opportunity to import the LPS concept of reusing assessments where appropriate, even beyond the twelve-month period. This would be a huge benefit going forward for renewals. Another small merge of thinking.

It is currently possible to reuse all six assessments without repeating any of them if the criteria are satisfied. This is currently clearly written within the Schedule.
When using a best interests assessment, there is a requirement to take into account any information given, or submissions made, by—
(a) the relevant person's representative,
(b) any section 39C IMCA, or
(c) any section 39D IMCA.
This is currently only possible once within twelve months due to the time limits in the Schedule but with statutory amendments we would have a renewal process exactly as envisaged by LPS.

Its also interesting to note that it does not matter whether the existing assessment ‘was carried out in connection with a request for a standard authorisation or for some other purpose’. With more thought and some slackening of restrictions on the use of assessments by others or by adopting the LPS determination idea into DoLS, perhaps many capacity and best interests assessments carried out by qualified professionals could be relied on by BIAs.

Some of this tweaking could be done by Regulations. The Schedule allows the reuse of assessments whether completed for DoLS or some other purpose, whereas Regulations tie down who can complete capacity and best interest assessments thereby undoing the good that the Schedule sought to do (Para 49 (7)).

Duty to give the authorisation
This is an area where we have, in my view, completely run away with ourselves. The Schedule at its simplest sees assessors being provided with care and support plan/needs assessments and carrying out assessments at a high professional to determine if the requirements are met. If they are all met, the supervisory body must give an authorisation.
Over time we have developed the supervisory body in this context to become an authoriser; we have then developed the role of the authoriser to carry out a review of all assessments similar to that proposed by LPS and then having carried out a review to explain their scrutiny in writing. This has added hours to what the Schedule appears to envisage as a simple process.

There does not appear to a barrier to anyone signing the authorisation for the supervisory body. That is because there is no specified role as there is for assessors. Of course, we have had case law which says scrutiny should not be perfunctory, but it is possible to question even this statement as scrutiny is not described in the schedule.

Within social care many team managers sign off social care assessments and do not record their rationale for doing so. Of course, there is a role in identifying assessments which are inadequate to the seriousness of the decision but that surely is a quality assurance process. It seems to me that if the assessments are carried out by highly skilled professionals and if they confirm that the requirements are met, then all that is needed is a signature on the authorisation. Those assessments which are inadequate, or which reach conclusions not supported by evidence, should of course not be authorised but should be returned for further work to be done by the assessor.

Does one size fit all?

We have contributed to the complexity of DoLS beyond what the schedule envisaged. W e can make efficiencies to DoLS practice which actually bring us nearer to LPS. But one challenge remains which is to identify the pre and post Cheshire West situations.

When the Courts were faced with this dilemma after Cheshire West, when it looked like they would be inundated with applications from settings outside care homes and hospitals and 16–18-year-olds, they immediately devised a system to separate out the two groups. The pre–Cheshire West type situations would require a full hearing; the post Cheshire West type situations would be dealt with on the papers as a Re X application.

LPS tried to separate out those people who needed more by setting a wishes and feelings test, similar to cases which would trigger an oral hearing: those who did not wish to reside or receive care would attract an AMCP to review the assessments. I think this was on the way to something but not yet quite there.

In my view we have pre-Cheshire West situations where DoLS brings a substantive safeguard: things may need to change such as: a return home, a different setting, a court challenge or a revised care plan. Then there are those people in the post Cheshire West camp who need only technical protection: nothing changes about their arrangements, but a review has been carried out of all their arrangements by specialised assessors and this process itself is the human rights protection. If we could identify this difference clearly, we could target specialist resources better and use assessment documentation appropriate to the level of complexity.

Conclusion

If in the future, with a new Parliament and a new, fresh look at LPS perhaps we could ask whether it would be better instead to make these legislative changes to DoLS importing the LPS concepts of
• 3-year authorisations.
• Determinations by specialist professionals on the assessments of others.
• Renewals being able to rely on previous assessments without limits of time.
• Add 16 plus and all registered settings.
And if we can add to that a way of dividing technical protection from substantive protection and therefore carry out more proportionate and pragmatic assessments, I think the baby born from the DoLS/LPS coupling will work so that everyone who needs it will have human rights protection.

HAPPY CHRISTMAS