Here’s the thing with DoLS… Reflections on the LGO’s recommendations to Kent County Council

I, like many of you, have been following the latest chapter in the DoLS saga with interest. I am referring, of course, to the Local Government Ombudsman’s report regarding Kent County Council’s delays in processing standard authorisations and Kent County Council’s, frankly very honest, response to those Ombudsman’s recommendations.

The circumstances reported to the Ombudsman are certainly upsetting. That a couple lost valuable time together in what turned out to be her final year is truly saddening. Unfortunately, it isn’t shocking. In fact, when I read it, the most surprising thing to me was that the standard authorisation was progressed within 6 weeks. There will be placements left unassessed for far longer than that, I am sure.

Now let me be clear, I am not condoning these delays. The day I stop believing in the importance of independent checks and safeguards to prevent arbitrary state powers is the day I need to walk away from this career and start something, anything, else.

I just don’t have the benefit of living in the land of theory, where the law provides simple answers. Down here in the real world, these things are messy, and complicated.

And the messy truth is that the bigger error was in not applying tye Mental Capacity Act properly in the first place. That would have prevented the couple being separated in the first place. Even with swift assessments under DoLS and a speedy application to the Court of Protection, they would still have experienced months of living apart. But failure to properly embed the Mental Capacity Act is something that always irks me. So let’s move on and think about DoLS delays and backlogs. Because there will be a lot of truth in Kent County Council’s appraisal of the scale of the task the Ombudsman wishes them to undertake.

You see the DoLS scheme was brought in very hurriedly in a response to the so-called Bournewood Gap. Local authorities have been dealing with the fall out from these fairly poorly thought through provisions ever since.

But, of course, in 2009, the country was operating on the basis of a very different understanding of what amounted to a deprivation of liberty. Nobody thought it applied to the majority of care home residents, or to people who weren’t asking to leave. Thanks to the Supreme Court in Cheshire West, we now all know that isn’t the case. I confess to not having practiced in this area for long pre-Cheshire West so I won’t comment on the reasoning being applied back then.

What I do remember is the judicial review that a number of local authorities took against the government in an attempt to secure greater funding to apply DoLS properly to the number of people that would be eligible following the Cheshire West judgement. The argument put forward in that case was that the government had failed to provide ‘full, or even adequate, funding’ for the deprivation of liberty regime. The judgement in that case acknowledged that funding was under pressure and properly resourcing in the scheme would be ‘extremely difficult’. But the challenge failed. It was one of those cases where law and common sense may not have to fully aligned.

Now there may have been a time when a government, faced with such a high profile challenge and evidence of the high risk that vulnerable people would be left without proper safeguards for their human rights, might have re-evaluated their position. But that isn’t what happened, and there is no sign of that changing any time soon.

The Director of Adult Social Care at Kent County Council hints at some of the challenges of proper resourcing for this scheme. He mentions that the requirement for medical evidence takes parts of the process outside of the local authorities’ control. Local authorities are required to rely on either local health partners, or external agencies to provide s12 qualified doctors to conduct some of the assessments. There is not exactly an abundance of such doctors sitting around twiddling their thumbs waiting for work to come in. That means that in many cases local authorities have to pay not inconsequential sums to obtain these assessments.

Then there is the need for Best Interests Assessors. This may be in local authorities’ control. After all, it employs a large number of social workers. But those social workers have to balance competing demands all of the time. In 2015, social workers were coming to terms with the new Care Act regime. They’ve not exactly had a quiet period since.

And yes, local authorities could require their social workers to prioritise DoLS assessments. But their time is a finite resource. And yes, there will be some efficiencies that can be made in every team, but sooner or later they will be left with burnt out social workers, and vulnerable people suffering as a result.

So, instead, some local authorities choose to outsource DoLS assessments to external agencies. This frees their social workers’ time to investigate safeguarding alerts, assess needs and arrange support. But the money is still going from the same pot. And it isn’t bottomless.

Not to mention that reliance on these agencies can de-skill the workforce and tempt experienced professionals away from local authority work. So it’s not a straightforward decision.

And that’s not even factoring in the time needed for senior local authority officers to properly scrutinise the assessments. And all of the administration that takes place behind the scenes.

So I think the response of Kent County Council was very brave. Local authorities have been taking criticism for not properly safeguarding vulnerable individuals for years. This response helps to widen the conversation, drawing attention to the funding dilemma that local authorities continue to face. Because it’s a problem that the Liberty Protection Safeguards are unlikely to fix. The funding proposals for that scheme do not fill many local authorities with hope. Indeed, as one lawyer analysing minimal data from our systems I was able to draw into question a number of the government’s figures. But, of course, no one in local authority has the time and resources to put together anything that would seriously challenge central government, let alone do any real lobbying.

It appears the government is holding the national insurance increase as the answer to the funding crisis in health and social care. Somehow, I suspect it will barely touch the sides (to coin one of my gran’s favourite sayings). And when that is coupled with the implementation of the care fees cap, it’s almost laughable. But I’m a horrible leftie, so what do I know!

I suppose what I am trying to say is that I welcome scrutiny of these processes. I really do. I just think scrutiny needs to be in context. It would be easy to blame Kent County Council for not funding their DoLS team properly. They probably haven’t been. And if it turns out huge chunks of their budgets have been frittered away through corruption or incompetence then I’m happy to call the Council out on it. I’m not naive enough to think that their books will be free of any inefficiency or wasted resource. But there are bigger problems too.

And I’ll call to a close my slightly political rant to specifically say I don’t have any inside knowledge on this matter. I can confirm that I don’t work and haven’t worked for Kent County Council.

In case it isn’t obvious from the fact I still haven’t identified the authority I work for, the views expressed on this blog are my own opinion and not the opinion of that local authority

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