DoLS has been described as ‘not fit for purpose’ ‘a bureaucratic nightmare’ ‘outdated language’ etc. but I want to explore how some of its negatives are no longer quite so negative due to practice developments. I want to look at the most challenging areas of DoLS and how the LPS proposed to address those. I also want to look at why the LPS Code of Practice made the proposals into more of a bureaucratic nightmare than DoLS and why it’s good to pull back from some of the proposals in the Draft Code but finally how the policy intentions of LPS which were so positive, can be adopted into DoLS.

What’s wrong with DoLS?
What are the challenges of DoLS – (Please note this is not ‘what do people say when they write about DoLS’, this is about the actual, on the ground challenges with DoLS).

1. A scheme created for a maximum of 20,000 reducing to a level playing field of 7,000, is vastly underfunded, under resourced in terms of personnel and would be costly to fully fund.
2. DoLS focusses the attention of highly skilled professionals in every referral and situation.
3. DoLS has an onerous renewal process which treats renewals as first-time applications, because it seems the legislators didn’t envisage this phenomenon.
4. DoLS only applies in hospitals and care homes for those 18 and over.
5. DoLS referrals in Acute hospitals are different from those from care homes.
6. DoLS practitioners have contributed to the crisis due to always striving for excellence.
7. The separation between DoLS and care management is unhelpful.
8. The lack of recognition of the BIA role and lack of clarity re annual requirements
9. Data collection is onerous but not completely helpful.
10. Dominance of the backlog.

Additionally, the greatest challenge of DoLS is that it is heavily legislated; too many things are in primary or secondary legislation. I know people have commented that we could have reduced the DoLS Form content further and the answer to that is ‘yes we could, had they not included in regulations, what the forms should contain’. So, I will add a great challenge of DoLS is the content of its primary and secondary legislation restricting further beneficial changes and I will address this last.

You will note that these issues are not the usual criticism DoLS attracts. Usually, the criticism begins with the myth that it requires six assessments. In the beginning there was a separate assessment tool for each of the six DoLS assessments.
Since the review of DoLS forms following Cheshire West, there are two assessment forms: Form 3: includes Age, No Refusals, Mental Capacity And Best Interests and Form 4: includes Mental Health, eligibility and where required can include Mental Capacity. So, in practice since 2014 there have been two assessment processes for DoLS, which can be completed by a minimum of two people.

DoLS are described as bureaucratically heavy – since spending time reading the Draft Code of Practice and considering operationalising LPS I think everyone agrees that LPS as described in the Code would be potentially more bureaucratic. We don’t yet have the feedback from DHSC on the consultation, but we can only hope and where possible still lobby for simplicity. For LPS to succeed we have to learn from DoLS and avoid making the same mistakes again. The DoLS process is simple: one point of referral, two assessment processes commissioned, assessments completed and returned, authorisation prepared and signed off. Yet over time it has become lengthier and more protracted, and this can already be seen happening to LPS as it moved from a high-level Schedule in the MCAA to an operational mish-mash in the Draft Code of Practice.

The third criticism of DoLS is around advocacy and the relevant person’s representative role. I am not fully convinced that LPS offered something stronger. DoLS requires an IMCA from the beginning if the person has no family or friends, LPS requires the same if there is no appropriate person. DoLS appoints a representative at the conclusion of the process, LPS either continues the IMCA role or continues the appropriate person role. I considered that in practice there would be no difference. Until, that is, I read the Draft Code which hugely widened the advocacy role and envisaged IMCAs attending assessments and best interests meetings and being present for everything that happened. Whilst this may be a desirable aim, it would be incredibly costly.

The final criticism of DoLS where LPS is planned to be stronger, is the timing of actions. An LPS authorisation is intended to always be in place before a move or a placement. DoLS had exactly the same legislative ambition. A DoLS authorisation, just like an LPS authorisation. can be given up to 28 days before it is needed. The fact that in over ten years of DoLS experience I have seen this happen once or twice, should cause us to question practice but also to resolve that LPS would be different. LPS will be aligned more with frontline practice and its policy aim in this respect is well intentioned.

What’s right with DoLS?
DoLS is a simple, straightforward process. Requests come directly to the one supervisory body – the Council. The request generates two assessment processes and the involvement of an IMCA where required. The assessments are carried out by two separate professionals and when complete they are returned to the supervisory body who then arranges authorisation. At the end of the process a representative is appointed. Apart from the inability to deal with such large numbers of referrals the process works well for those it is aimed at protecting, and who fall within its scope.

Looking at NHSD figures provided in 2022 for the year 2021-22 Mental Capacity Act 2005, Deprivation of Liberty Safeguards, 2021-22 - NDRS (digital.nhs.uk) 270,650 requests were received in England and 254,215 were processed, so English Councils are almost able to complete what they receive in year. Which given the minimal amount of funding this is an amazing feat. Yet the backlog of cases remains. There is absolutely no evidence that the backlog would be eradicated before LPS implementation therefore the evidence suggests the backlog would simply have a new name.
DoLS has conditions, this is an incredibly useful tool to improve the lives of those who are being deprived of their liberty. This is not overtly present in LPS, even if in practice the same result could be achieved by providing that the deprivation of liberty is only authorised as being necessary and proportionate on condition that a, b and c are put in place.
So, let’s look at the challenges of DoLS as I have identified them and then some potential solutions.

Challenges of DoLS
1. A scheme created for a maximum of 20,000 reducing to a level playing field of 7,000, is vastly underfunded, under resourced in terms of personnel and is costly to fully fund.
I am sure that cost is a significant factor in the ‘delayed’ implementation of LPS. Its selling point was that it presented a saving to the Government. The saving was of itself smoke and mirrors as it was a saving against fully funding DoLS. However, I am sure that the responses to the draft code made it very clear that there would be no saving. There have been various attempts at costing DoLS but these were before Cheshire West. There is no doubt that the implications of Cheshire West caused us to work smarter. Assessment times were addressed by DoLS leads; costs paid to Mental Health Assessors were negotiated down. The streamlined forms provided time savings and simplification and practice measures such as the use of a proportionate assessment for renewals and speeded up the process. DoLS does require administration without a doubt but there is definitely a piece of work needed to scope true costs in 2023. Added to that and I hope obvious from this, and my other writing, is – we need more money! Research into the true costs will enable us and the Government to better plan for LPS implementation.

2. DoLS focusses the attention of highly skilled professionals in every referral and situation.
The challenge facing the Law Commission was the same challenge every DoLS lead and BIA faces, every situation is not the same. The Law Commission addressed this by dividing people on the basis of their wishes. Those who do not wish to reside or receive care/treatment would get the oversight of a specialist professional. BUT note that this professional was not to be an assessor but rather a specialist reviewer. In the case of DoLS every single person benefits from the involvement of a BIA. This is both its highest accolade and its greatest downfall. There are some people who need what I will call technical protection and there are some who need substantive protection. Maybe wishes and feelings is the right test, but I suggest the response is better aimed at the extent of the assessor’s involvement.

DoLS is very tightly embedded in legislation. The details of who can carry out assessments is in regulations, therefore who can carry out assessments is restricted. If a social worker produces an excellent capacity assessment for a move into residential care this can’t be used for the DoLS process as it was not completed by a BIA or MHA.

3. DoLS has an onerous renewal process which treats renewals as first-time applications, because it seems the legislators didn’t envisage this phenomenon occurring.
A DoLS authorisation, unlike an LPS authorisation, can only ever be given for up to twelve months. After that time, it requires a new referral. This further request is treated exactly the same as a first request. Furthermore, assessments carried out for DoLS purposes only have a twelve-month shelf life then must be repeated. Let’s imagine a doctor assessed Mr Smith to have dementia on May 1st 2022 this will only last until the 30th April 2023. If the renewal process isn’t completed in time, maybe even one or two days late, the supervisory body will have to pay anywhere between £120 and £170 for (possibly) the same doctor to tell us that Mr Smith still has dementia. LPS offered much more in terms of renewal processes. NHSD data doesn’t distinguish between first applications for DoLS (Form1) and subsequent requests for further authorisation (Form 2), so we are simply provided with overall numbers for both: 270, 650. Based on my operational experience and work done by regional DoLS leads, the split is known to vary somewhat from area to area, but I would anticipate that over half, and maybe as many as two thirds of these may be renewals. Time and thought given to renewal processes and learning from LPS can really help here. It would be incredibly useful if National data collection could support that, if not Councils may want to identify the split for themselves to help target resources effectively.

4. DoLS only applies in hospitals and care homes for those 18 and over.
Now that we are in the space of delay (I’m not even sure it’s the liminal space anymore, it’s more like the post-apocalyptic landscape) we need to look at what LPS promotion has already achieved. There has been quite a lot of scoping to determine the numbers of 16/17 year olds. We know that this is a significantly smaller cohort than the 18 and over care home/hospital group. What we don’t have is the training and understanding of correct routes and actions in relation to 16 and under. There are now BIAs in a few Councils who work in Children’s services and their expertise is a valuable asset. There is work which can be done here to build on the LPS focus because after all that focus has been on the role of the MCA, recognition of what a deprivation of liberty is and how to proceed. This is not wasted work. We just need the next steps. Those 18 and above in settings outside care homes and hospital remain as they have always been, provided for by applications to Court. But there are huge backlogs there and delays in processing referrals has led to a lack of motivation in the workforce to proceed with these cases. They are extremely time-intensive and also, like DoLS authorisations, must be renewed each year. It’s time for an overhaul of the process and in particular the forms, although there are limits to what can be done when the process remains one automatically requiring the involvement of the Court, rather than an administrative one. It should also be remembered that there is no entitlement to non-means-tested legal aid for those whose deprivation of liberty is authorised by the court (community DoL), so there are very many people who are having to pay for the privilege of the authorisation process. This is fundamentally wrong.

5. DoLS referrals in Acute hospitals are different from those from care homes.
Acute hospitals now make up a large part of the DoLS scheme, there were 74,385 referrals from Acute hospitals compared with 169,185 from care homes (residential and nursing), however, of those referrals from acute hospitals, only 3,180 were granted and 67,050 not granted. This low number granted is because most people in acute hospitals are covered by an Urgent Authorisation (self-authorised by the hospital for 7 days and potentially extended by the supervisory body for another 7 days). The data includes the reasons for all “not granted” cases – 94% are not granted either due to the death of the person (29%) or due to some other change of circumstances (65%). Only 3% are not granted because the DoLS assessment criteria are not met. In acute hospital cases, therefore, it is most likely that the patient’s circumstances changed, which, as well as some patients dying, would include patients recovering their capacity, moving or being discharged before they could be assessed, such that the authorisation is no longer required. These referrals place an extraordinary administrative burden on Councils who have to receive and record the request, rarely get chance to assess but then must go through the process to ‘not grant’ them and record all this as data entries. From the hospital’s perspective they are doing exactly the right thing (and, indeed, what they are required to do by the law) by asking for a standard authorisation at the same time as granting themselves an urgent authorisation: but they are doing so in the sure and certain knowledge that these will most likely not be required.

6. DoLS practitioners have contributed to the crisis due to always striving for excellence.
I’m sure you will have pricked up your ears at this one! I have dedicated my career to striving for excellence but there are some occasions where we have to ask, especially in the context of limited resources ‘can we accept that this as good enough?’ The best interests assessment was initially seen as a report. Sector-led improvement resulted in much improved practice. The original forms had nowhere to record a ‘social history’, the background of the person to this point in time and so on. Necessity and proportionality were not fully understood and the drafting error (or whatever confusion it may have been) which tied three components together (necessity, proportionality and best interests equals best interests!) still confuses BIA students and authorisers. Completed Form 3s have got longer over time, they are often repetitive, but they are also brilliant, rights-based and drive less restrictive practice. I think we can find a middle ground where we have excellent assessment but concise and to the point.

7. The separation between DoLS and care management is unhelpful.
LPS seeks to rectify this, the policy direction here is extremely helpful but the Draft Code of Practice got into a muddle. It was unclear in terms of responsibility, who exactly is the responsible body in any given situation? Is it the social worker, their manager, the assistant director? The Draft Code wasn’t clear who was acting in which capacity and when. The Schedule was deliberately high level to allow Responsible Bodies to establish operational systems to suit their own arrangements but in some places the Code got over involved in operational matters. DoLS is clearer, because DoLS and care management are separate strands. Self-funders are treated equally under DoLS (something which remains unclear operationally with LPS). But the challenge with DoLS is what to do when the things which should have happened first, haven’t happened? What happens when there hasn’t been a best interests decision, or the less restrictive options haven’t been fully explored. We tried to remedy this by adding ‘recommendation’ to the Form 3 alongside conditions. Conditions are aimed at the care home or hospital but often BIAs find care management isn’t what it should be and need to put this right. The danger is they end up doing it when it isn’t their role. Recently reading a list of conditions which included considering a better chair to aid socialisation, spending time in a less restrictive part of the care setting where people could communicate more etc I couldn’t help but ask ‘where is the social worker?’ We can, I think, learn much from LPS policy intentions in this area.

8. The lack of recognition of the BIA role and lack of clarity re annual requirements
The number of Universities providing BIA training had gone down, then there was a surge mainly due to demand from health bodies who wanted to train their staff so that they could become the new AMCPs. Then there was a pause again waiting for an implementation date. University courses are very varied: some have a practice element, some don’t. Some have a portfolio of practice, some don’t. Some have supervisory body BIAs marking shadow forms, some have a sort of interview system: it’s very, very varied as there has been little or no oversight or quality assurance, and the differences can appear totally random. The length of training and cost of course varies as does the level of course and the number of credits attached. Annual refresher requirements are even more vague, the otherwise incredibly specific and restrictive regulations only require that each year, BIAs complete ‘training relevant to the role’. There is no more than this. There is not a reapproval requirement, in fact there is not an approval requirement. BIAs are paid differently from Council to Council and Councils fight to attract BIAs from the same pool of people, often unsuccessfully. Alongside this there is a large workforce resource of independent BIAs. The BIA role lends itself very well to independent work, it is an in and out situation where a BIA does not hold a case load. Employed BIAs often can get pulled away to other work or carry out their role on a rota basis on top of other work. We need a piece of work to completely reconsider this role and function.

9. Data collection is onerous but not completely helpful
The data demands for the DoLS return are incredibly onerous. All the fields are quantitative, none are qualitative. Hence when DoLS were criticized there was no ammunition except anecdotal with which to return fire. DoLS changes lives one person at a time. It might be the means by which Fred gets bird food or Sheila gets an appropriate chair or Julie gets to hear the radio channel of her choice or it might mean Olga gets to go home. This is not reflected anywhere. The person’s experience is not recorded and these beautiful changes to their lives go unnoticed except in DoLS Team meetings. The data collection needs an overhaul.

10. Dominance of the backlog
Leaving the best till last – the backlog. I have written more extensively about the backlog for WMADASS but in general for these purposes there is no such thing. The backlog at any one time will include those acute hospital cases I’ve already referred to; it will contain new referrals which arrived that day; it might contain cases which are signed off the following day and it might contain old or very old cases. The trick with the backlog is to get to know it not to pretend it’s one amorphous thing and strive to get rid of it. It cannot be got rid of. A backlog ‘project’ whereby the Council processes an extra 500 cases in year and ends the year with a blank sheet, will simply mean that next year it has all its new cases, all its previous renewals plus an extra 500 renewals which it completed as a backlog project. Just like any good vampire it cannot be killed. You just have to make friends with it. As Councils approach inspection the backlog of DoLS is on everyone’s mind. If I were CQC I would be trying right now to think, what do I need to know about a backlog of DoLS cases? Let’s leave the answer to that for the next bit.

The future, what can be done
1. A scheme created for a maximum of 20,000 reducing to a level playing field of 7,000, is vastly underfunded, under resourced in terms of personnel and is costly to fully fund.
We need research to inform. We need to know the cost of DoLS, the genuine, on-the-ground cost. We need to learn from each other how the sector has made its own improvements. Councils negotiating a deal with Mental Health Assessors to drive down costs (more of that later), sharing update training by region to benefit from economies of scale etc. Let’s ask, let’s share, let’s learn, lets save and let’s lobby DHSC for some of the LPS implementation funding to support the sector now. Meanwhile we can usefully look at the key policy intentions of LPS and we can implement these, where possible.

2. DoLS focusses the attention of highly skilled professionals in every referral and situation.
If this could be professionally, practically and pragmatically addressed we would really see improvements. Firstly, every BIA and DoLS Lead needs to heed the data; for every two people we visit/assess, one other waits. We also need to heed that startling data that over 40,000 died waiting last year. That’s over 100 people a day. This is the data that needs to drive a proportionate response. This was a key challenge for the Law Commission and one they had hoped to solve with the AMCP role being more targeted and focused. There is a decision to be made: which people need the full weight of attention of a BIA because there is substantive protection needed and who needs the process to be completed in order that they have technical protection, but their lives will not change, and no added benefit will be brought? This is an area where we can take the policy intention of LPS forward. Maybe ‘wishes and feelings’ isn’t the dividing line, but there definitely is one. For every ten DoLS authorisations granted there are perhaps only 2 people where the BIA has brought substantive action rather than technical protection.

3. DoLS has an onerous renewal process which treats renewals as first-time applications, because it seems the legislators didn’t envisage this phenomenon.
LPS has a perfect solution to renewals, recognising that further assessments may not always be needed and were not required. We need to import this policy intention, as far as we can within DoLS parameters. Sector-led improvements have already resulted in the development of a Form 3B. This in brief is a legally compliant assessment document for renewal cases. It is a proportionate way of confirming that there are no changes to the person’s situation. It is slightly more detailed that relying on six equivalent assessments. Not everyone uses the Form or the principle. We need to promote this and give staff confidence. We need to keep in our minds the policy intention of LPS to help us now.
Assessments in DoLS have a shelf life but I am considering two further possible actions. Why have we not developed a Form 4B? This would be a proportionate form for Mental Health Assessors to confirm diagnosis and eligibility where it remains exactly as it was last year and the year before and, in some cases, the previous nine years. This will be easy to do and would also demand a much lower fee. In essence there is much to be done I think by taking assessments (possibly by other professionals?) and a DoLS professional making a further determination about their validity.
The DoLS scheme allows for all six assessments to be used again within twelve months, this is known as a process of six equivalents. This is greatly underused and with a little dedicated admin support brings huge benefits and reduces assessment costs.

4. DoLS only applies in hospitals and care homes for those 18 and over.
This remains true so the help we were hoping for is not arriving yet, there will be no white horse riding over the hill to rescue social workers, CHC nurse and our ISC colleagues from the dreaded community DoL application process. We need to work together; we need some improvements in the forms and the process to make this more workable and I think we need the MOJ to consider the backlogs at Court. There is nothing worse than spending days/weeks completing an application for it to sit at Court for twelve months and then be returned for the social worker to update the assessments. Much work is needed here and those Councils who have held back seeing LPS as their rescuer need to refocus. There will be limits to what can be done given that applications going into Court are competing for scarce judicial time and resources with (for instance) s.21A applications challenging DoLS, but if we are stuck with the position for the foreseeable future, it is in the interests of both public authorities and the judiciary to work together to see what can be done.

5. DoLS referrals in Acute hospitals are different from those from care homes
We can’t change the legislation to make this different, but we can look at referrals from Acute hospitals. I did a short piece of research once looking at the date of discharge compared with the date of DoLS referral and how many acute hospital referrals went beyond 7 or 14 days. It was very few and this was in some cases due to Christmas and others due to the specialist nature of the condition. We can do more here. Because we expected to see a new Responsible Body taking charge of hospital cases, we have become used to the status quo which is large numbers of referrals with very few assessed or granted. It would be prudent, I think, to take a look in more detail at the nature of those referrals. These are self-authorised, are all six requirements met, should it have been a referral at all, and can we educate and advise our colleagues? It may be a good time for an education programme, particularly reminding colleagues of the Ferreira judgement, which essentially means there are very limited circumstances in intensive care when the arrangements give rise to a deprivation of liberty and authorisation is needed. New Midnight Law on Deprivation of Liberty in Intensive Care | The Faculty of Intensive Care Medicine (ficm.ac.uk)

6. DoLS practitioners have contributed to the crisis due to always striving for excellence
The Covid pandemic caused is all to return to basics and to some extent the ongoing Human Rights crisis should keep us still focused on basics. It is important to read again Schedule A1 of the MCA and remind ourselves what DoLS is essentially about. There is, for example, no requirement in the Schedule even to see the person! This time should be about refocusing through an LPS lens (remember the 100 plus people dying each day, waiting). It is time to give the DoLS legislation the same scrutiny we have just given to the MCAA and the Draft Code. Time to forget everything we have imported and look at what is absolutely necessary.

Form 3 is not repetitive by design, but practitioners are, when completing it. If you have said it once on the form, you do not need to say it again. The form, the assessment operates as a whole. Imagine being a relative and receiving these forms, let that guide your practice. I have done audits where whole swathes of an assessment can be deleted without impacting quality. The sector has always asked for exemplars: we stopped thinking about this so much when we were focused on LPS but it is time to return to it. Robust capacity assessments and short and to the point best interests assessments are essential. How much needs to be said as opposed to what can be said. Background needs to give a flavour, not an entire life history. The focus needs to be on wishes and feelings and – above all – necessity and proportionality, that is the areas that LPS focuses on.

7. The separation between DoLS and care management is unhelpful
LPS planned to bring these two strands together and this policy direction was good (although there is still work to be done operationally in relation to self-funders, in some cases). DoLS provides an independent check, independent assessors carry out the checks but just like LPS they are usually employed by or commissioned by the supervisory body. Then there is authorisation, this is an area where we have (unintentionally) added complexity to the process. The term ‘authoriser’ does not appear in Schedule A1, which only requires that the supervisory body must authorise. We initially set this role high in the organisation, but many Councils now have the role carried out by Team Managers. We simply do not have the luxury of excellence in every area of DoLS: we have to strive for the good in order to ensure great numbers of people are not unprotected. There is a debate to be had about the authorisation role, including the idea of BIAs as authorisers. There is work to be done on ensuring recommendations made via the DoLS process are acted upon and still work to be done establishing MCA principles are adhered to prior to DoLS processes being carried out. LPS seeks to ensure that MCA principles are upheld from the beginning of any care or support planning, and we can and should continue to reinforce this principle until LPS is implemented. BIAs need to remain clear about what is their job and what should sit with care management, but I believe we can explore how to utilise the policy intention made overt by LPS in the Schedule of a separation between assessment and determination. Can a BIA make a determination (so as to complete the assessment required under Schedule A1) on the basis of a piece of work carried out by a social worker? How can we continue the work to embed necessity and proportionality in care and support planning which would make it much easier to rely on in DoLS.

8. The lack of recognition of the BIA role and lack of clarity re annual requirements
LPS creates a much more professionalised role of AMCP and we need to import respect for this key function into the BIA role. A workforce plan is needed in relation to recruitment and retention of BIAs. Market forces often mean independent BIAs can drive up their own costs. At the same time independent BIAs are a valuable and highly skilled resource. The pay and reward system for BIAs (substantive, Rota and independent) has largely happened by accident rather than design and been driven by the resource issue generated by Cheshire West. Now is the time to step back and approach it strategically and collectively. BIA courses need an overhaul, consistency in standards is needed across the board and the whole annual training system needs clarification to answer the question ‘what is training relevant to the role?’

9. Data collection is onerous but not completely helpful.
As I have already identified there are numerous data fields, but they haven’t kept pace with the practice changes since Cheshire West and neither do they provide Councils with data which is useful. I imagine many Councils have their own performance dashboards as well as collecting NHSD data. We need data which helps the sector respond, we need to know new and renewal applications, we need to know how many times conditions are set, and when they result in improvements for the person. We don’t need more, we need different.

10. Dominance of the backlog
Analysis of numbers referred to as ‘the backlog’ is essential. Most DoLS Teams had no outstanding work until after the Supreme Court decision in 2014. The following is suggested in relation to the backlog:

• Identifying priority hospital requests: some hospital settings invariably keep patients longer. These will be specialised settings, neuro rehab or mental health settings, for example. If the hospital requests are screened for those likely to remain as an inpatient longer than 14 days, allocations can be focused on these situations. Similarly, if hospitals are asked to indicate on referrals the likely length of stay, that too would enable prioritisation of those who will remain in hospital long enough to be assessed or longer than the 14 days covered by an Urgent authorisation.
• Focus on equivalent assessments for renewals: the most straightforward renewal process available is when it is still possible to rely on the previous six assessments all dated within 12 months and use them again. This is perfectly lawful. It does however require some administrative scrutiny to locate assessments whilst the authorisation is still in date and within the last 28 days of the end date. If this is done, the authorisation requires a telephone call to the person’s representative to determine that nothing has changed, and the case can be authorised again. This is known as the “six-equivalent” process. It can only be used once, with twelve month authorisations and then further assessments are required. It eliminates any costs and assessment time related to assessments on that occasion.
• Focus on proportionate renewals: Given the principle above that a further authorisation can be granted without new assessments where nothing has changed and the policy direction of LPS towards three-year authorisations there is a need to keep renewals as proportionate as possible. If all assessments are within 12 months except the best interests assessment, then this can be carried out in a proportionate way. Some of the models adopted during Covid 19 can really help with this. The use of remote assessments and telephone assessments for example.
• Continuing to screen referrals for priority/geography etc: There is an ongoing need to continue to prioritise requests but there is also value in grouping requests in a particular care home or geographical location. Avoiding a BIA and a doctor’s travel time is helpful. Grouping cases also means that some of those prioritised as amber or green can be added to a batched allocation.
• Keeping on top of system updating: having a robust approach to data on those people who have died or moved prevents people being recorded as waiting when in fact they have died or moved. This is a straightforward admin task to call care homes for updates or check wider system data and then update DoLS systems.

• Finally, I cannot end this paper without looking briefly at legislative changes, however unlikely the appetite for this.
• Consider the feasibility of introducing Introduce s4B as a stand-alone measure, this would have great benefits for hospitals and care homes and would potentially bring some protection to those waiting. A small tweak to replace LPS provisions for standard authorisations would mean that at one fell swoop everyone is actually acting legally in the care home/ hospital whilst waiting for the authorisation process to be completed. It may also bring with it Legal Aid protection.
• Consider amending regulations relating to assessors to allow a wider pool. Speech and Language therapists have lobbied long and hard to be included as assessors within LPS: amendments to the assessment regulations would widen the pool and bring added benefits.
• Amend Primary legislation to alter time limits for authorisations, extending them over twelve months. This would be a small change with a huge impact and is perfectly in line with LPS.
• Amend Primary legislation to allow equivalent assessments over twelve months.
• Additionally, both Codes of Practice are dangerously out of date and in relation to DoLS I would say completely redundant.
• The Mental Capacity assessment form needs an update to ensure it is compliant with current case law.

Conclusion
I strongly believe that we can strategically and operationally improve DoLS to provide vital Human Rights protection to more people, in a more effective way, until such time as LPS or another system is implemented. The need for clear policy and strategic leadership to achieve this cannot be understated. I also believe that funding is needed to support this improvement and it cannot be left to Councils alone. Everyone has taken their eye slightly off the ball, but the ball hasn’t moved. Nothing has changed, hundreds of thousands of people need a procedure prescribed by law and as practitioners are no longer held in an LPS stasis, we need to return to first principles. We have a highly skilled workforce and we need to support them and retain their expertise; we also have huge commitment to the principles of the MCA. If we can bring all this together in a new and vibrant way, I think we can successfully navigate the next few years.