Ongoing increase in outstanding assessments
The annual review of deprivation of liberty safeguards has revealed an on going increase in situations that still require attention through assessment. The safeguards ensure that those deprived of their liberty in a care home or hospital in England and Wales, who do not have the capacity to consent to being accommodated, have recourse to the law to challenge their deprivation.
Opening the flood gates
The law has been problematic since it’s inception with difficulties around definitions of deprivation and ‘best interests’, two concepts essential to getting the right decision in this area. The Cheshire West ruling opened the floodgates of people needing an assessment. So, when people were under continuous supervision and control and unable to leave, this deemed them to be deprived of their liberty, and an assessment to confirm this was in their best interest was required. The reality of this ruling was that it applied to most, if not all, people in a care home who lacked capacity to decide to live there. This created an immediate crisis of a backlog of assessment. The solution to train more social workers and to employ locum best interest assessors has clearly not resolved the problem and with a review of the legislation placed on hold until at least 2019 it’s difficult to see how the problem will be resolved.
Estimates seemto suggest that it will take years to clear the backlog as obviously, as people enter care or hospital, they add to the numbers of those already deprived who require assessment. Uncompleted cases have now risen to, in excess of, 100,00 it is thought.
Good practice ironically adds to the problem
The North East of England appears to have a disproportionate number of assessments to undertake. The reason for this is an interesting one. It appears that practitioners in the north east are happy to recommend a short review period and that local authorities are happy to accept this. The best interest assessor can recommend a period of anything up to one year before the deprivation is reviewed but in terms of best practice this should not be seen as the default time scale. Where someone thinks a situation may change, or where recommendations are made to make the deprivation less restrictive it is right and proper to review this in a timely fashion. Hence, a shortened time scale. The irony of this is that best practice is compounding the problemof the assessment back log and while we wouldn’t want to lose this it highlights the need for a new more efficient and effective system of managing the safeguards.
The risk of ‘desk top’
This is the third year in a row that the backlog has increased despite more practitioners being trained to undertake the required assessments. The risk of not transforming the law and process is that councils may resort to ‘short cut’ methods like ‘desk top’ assessments. Some already have. This will mean the safeguards will have very little if no potential for impact on the lives of vulnerable people. Through the process the best interest assessor gets to meet the person and talk to them and is tasked with finding out as much as they can about the person. This can result in recommendations that may reduce the restrictive nature of a deprivation with the potential of improving quality of life for someone. A ‘desk top’ exercise turns this person centred assessment into a bureaucratic exercise. Surely that can’t be right?