In the first of a three-part blog series, Case Manager and Independent Best Interest Assessor Eleanor Tallon shares her thoughts on DoLS reform, and some of the issues leading to its replacement with the forthcoming Liberty Protection Safeguards (LPS).
This excellent book Deprivation of Liberty in the Shadows of the Institution by Dr Lucy Series (which I fully endorse reading!) I am inspired by the compelling debates and insights raised, particularly around the prospective implementation of the Liberty Protection Safeguards (LPS). This has urged me to write the following reflection, which includes views from the vantage point of being a Best Interest Assessor (BIA) working within the remit of the Deprivation of Liberty Safeguards (DoLS) and from a newly-formed perspective as a Case Manager within the world of personal injury litigation.
DoLS: A case for reform
The Deprivation of Liberty Safeguards (DoLS) were widely criticised as ‘not fit for purpose’ particularly in the aftermath of the Supreme Court judgement in 2014 referred to as Cheshire West and the definitive ‘acid test’, which increased the scope of DoLS exponentially.
This left huge backlogs of referrals for Local Authorities to plough through, which was a near impossible task in light of resource constraints, thus leaving thousands of people relentlessly waiting to be assessed.
Further to this, as Dr Series alludes to in her book; the machinery of DoLS comes to a grinding halt when there is no money to facilitate people having individualised support in the community (as an alternative to a care home environment).
A Best Interest Assessor’s perspective.
As a result of the issue outlined above, the DoLS process could sometimes feel tokenistic – as if it’s almost a ‘rubber stamp’. This is because even if a person could be independent in the community, the Local Authority isn’t obliged to fund it if the cost overshadows fees incurred for a care home placement. But with no private funding the person has no alternative option to state provision, so they are deprived of their liberty (in the context of the available options) and this is signed off as being ‘in their best interests’ and lawful.
Some would question whether these safeguards really protect an individual’s rights to choice and freedom to live elsewhere, or whether they are more greatly focused on protecting the liability of the authorities who don’t want to have to compensate against large claims for unlawful deprivation (see here for an example).
Furthermore, where is the government funding to avoid these deprivations from occurring in the first place, by securing the availability of good quality support in the community?
The problem with austerity is that it favours care provided within institutions as it’s cheaper.
A silver lining
Maybe I became a little bit cynical as a BIA, with having such restricted resources (which is partly why I chose to diverge my career and have two professional roles, one within DoLS and the other as a Case Manager, because sometimes you just need some fresh air).
But I will say this. With the DoLS as a legislative tool, as a BIA I have on various occasions, prompted the Local Authority to review the possibility of community living, and this has on some occasions been successful. Where this wasn’t appropriate, I have looked to increase the scope of choices that an individual has within their current care residence, therefore expanding their ‘decision space’ within that setting and promoting their personal liberties.
This was achieved by the use of DoLS conditions i.e. placing a legal requirement on the care home management to respond to a request (for example to facilitate a certain activity the person might wish to do) and then monitoring that this was adhered to.
The fact that a person has been given the opportunity to try something they were prevented from doing, thus regaining some agency over their lives, is an empowering step. Sometimes it’s the little things that make life bearable, so I celebrate that.
About the author
I have been a registered Social Worker for over 14 years, with extensive experience in both Children and Adult Services. Since 2015 I have worked exclusively within DOLS Teams, having completed Masters level qualifications in Mental Capacity, Mental Disorder and Best Interest Assessment.
Within the Best Interest Assessor role, I built up specialist skills and knowledge around assessing capacity and managing complex best interest decisions as well as overseeing DoLs cases that are involved in legal challenges. I also found my passion lay within promoting the rights and supporting positive outcomes for people affected by issues around capacity and vulnerability.
However I relish a new challenge and learning opportunity, therefore I have currently expanded my professional remit and now work as a Case Manager, alongside working as an Independent BIA. My aims for the future are to complete further training to convert to an AMCP (under the Liberty Protection Safeguards) as well as develop as a Case Manager and support with embedding the MCA in both professional roles.