In this post I’m going to talk about one of my recent cases which I think highlights why the whole DoLS process is important. I think it’s very easy when systems are overworked, and when it is acknowledged that the current process is far from ideal, to start to see DoLS as an inconvenience and to allow this work to be seen as less of a priority than other pieces of work. I am certainly not saying that other pieces of work that social and healthcare professionals have to do aren’t important, just that this work is also important and should be factored in when prioritising workloads.
I’m going to talk about my client. As has become a habit, I’m going to refer to him by a letter so as to ensure confidentiality. This is also not a complete or full account so as to ensure the privacy of everyone involved. That said, let’s begin
My client, let’s call him G, was a man in his 60s living in a care home and suffering from a progressive neurological illness. He had been in that care home for approximately 3 years. He was also very unhappy there. There was no dispute about whether the arrangements amounted to a deprivation of liberty and he was assessed as lacking capacity to consent, so ultimately a standard authorisation was applied for and subsequently granted. It became clear to his relevant person’s representative that he was objecting to the arrangements so they made contact with us and we made the application on his behalf.
During the proceedings we learnt a lot about G including three pieces of information that automatically attracted my attention. Firstly, when we received the health care records we see that some 6 years ago his neurologist identified that having meaningful activities to engage in was going to help in delaying progression of his symptoms. Secondly, we learnt that G had moderate financial means but that no one was managing these on his behalf. Thirdly, we learnt that G had previously been an active and social man with a number of hobbies including watching the football and attending local church.
It is worth noting that at the point the proceedings began G had not left his home since he arrived at the care home and had rarely left his room in that time. He had been consistently objecting to the placement, but backlogs and lack of resources prevented a swift intervention. The pandemic played a part in reducing his access to activities, unsurprisingly, but the issues pre and post-dated government guidance about this
Due to the nature of G’s needs, his care was funded by the clinical commissioning group (now integrated care board). When notified of the proceedings, they were co-operative and at the first round table meeting they stated that they absolutely agreed G should have more meaningful activities to engage in, and they’d look into this right away. So far, so good.
Their solicitor then had the sheer audacity to suggest we conclude the proceedings based on that assurance alone. I politely pointed out (my poker face, or lack thereof, no doubt displaying my irritation) that it had been three years since G moved to the care home, and throughout that time all of the professionals had access to information about the importance of activities, and had been aware of his dissatisfaction, yet nothing had happened to progress this until we got the court involved. So, respectfully, we’ll be insisting on continuing the proceedings to monitor the progress.
And that progress wasn’t far off being glacial. It took months for a plan to be put together, only for the plan to simply say “we’ll take him out one afternoon a week and see how it goes”. There were a lot more words than that, as you’d expect, but that was fundamentally what it boiled down to.
And once the plan was prepared, the care coordinator largely left the matter to the care home, with very little monitoring. So when the next hearing came around, we learnt that G had been out in the community twice, but then this stopped again because of limited taxi availability (nobody thought to book this in advance), staffing issues and various other problems, some of which were out of anyone’s control.
Ultimately, G did benefit from a number of trips into the community. His engagement varied, although it was very unclear how much effort was actually being put into encouraging G’s engagement. When he was out and about though, he enjoyed his time and presented very differently. He took some time to get used to these trips, so there was a plan to slowly increase them over time and if this went well, the intention was for consideration to be given to him funding additional 1:1 support so he could have more community access, over and above what was included in his continuing healthcare package. The local authority were, by this point, in the process of seeking a property and financial affairs deputyship.
Sadly, G died before these plans could be fully implemented, when the proceedings were still ongoing. But the very existence of the proceedings brought about changes that significantly improved G’s quality of life in those final few months. There was no reason those changes couldn’t have been made sooner. But they weren’t. And they were unlikely to ever be made until the clinical commissioning group had a reason to pay attention. The s21A proceedings, which only came about because of the standard authorisation, was that reason. Had the standard authorisation not been in place, G would have found it very difficult to bring a legal challenge since he did not meet the financial criteria for legal aid funding, but private funding was not an option since he lacked capacity to manage his financial affairs and there was, before the proceedings began, no one taking any steps to manage his finances for him. And few solicitors firms are in a position to act for free.
It is disheartening though, to think about how G’s life might have been different if he was supported to engage in more meaningful activities far sooner. At the least, it would have brought him more joy. It may even, as his neurologist has suggested many years ago, have slowed the progression of his illness and might have prolonged his life as a result.
We’ll never know. But it is one of the cases that I tell people about, when they question the purpose of DoLS. An imperfect check and balance is better than none, after all. And when services are under increasing pressure, I expect there will be many more cases just like G’s.
In case it isn’t obvious from the fact I still haven’t identified the authority I used to work for, or the organisation I now work for, the views expressed on this blog are my own opinion and not the opinion of that local authority or organisation