Review: Deprivation of Liberty Safeguards: A Best Interest Assessor Time Study

Cornwall Council’s much anticipated study, compiled and written by Emma Goodall and Paul Wilkins, was published at the beginning of December 2015.

This has obtained empirical evidence of the impact on BIA’s of the Supreme Court judgment that came out last year (2014). I wrote about this judgment, which it was anticipated would have far reaching effects on the workloads of AMHPs and BIAs, here. Cornwall’s research complements the College of Social Work’s document assessing the impact of this judgment on AMHP practice, about which I wrote here.

So that’s enough of the links for now. What did this Time Study actually find?

Since the Cheshire West Judgment extended the qualifying criteria for incapacitated people who might be in situations where they are being deprived of their liberty, it was thought extremely likely that there would be a huge increase in requests not just for formal assessments under the Mental Health Act, but also for requests for Deprivation of Liberty Authorisations, which have to be undertaken by Best Interest Assessors.

As this report highlights, “The first annual statistics published by the Health & Information Centre in September 2015 reports that there has been a “tenfold increase” in new referrals, with 137,540 DoLS applications received by councils between 1st April 2014 and 31st March 2015.” I am certainly aware that it is not uncommon for local authorities, who are responsible for conducting these assessment, to have backlogs of 2,000 or more.

The research took the form of asking practicing BIAs via a wide range of social media to complete a questionnaire relating to their practice and experiences. They received responses from a total of 507 BIAs, which I think is a remarkable achievement.

The study focused on the overall time that each assessment took, looking in particular at time taken in traveling, gathering information and consultation prior to and following the assessment, the length of time spent at the hospital obtaining necessary information, consultation with other relevant assessors, writing up the necessary documentation, and giving feedback to interested agencies and individuals.

The study found that the overall average time taken to conduct a DoLS assessment was 726 minutes, or 12.1 hours. This compares with an average of 600 minutes, or 10 hours, that local authorities estimate that an assessment should take. Some of the BIAs in the study reported a considerable discrepancy between the hours what they were paid for, and the actual length of time taken, for example one BIA saying: “I’m paid for 7 hours but each assessment takes at least 11 hours”.

While it may be tempting for local authorities to attempt to quantify the time taken and set a standard timescale for completion of assessments, the study points out that, while DoLS assessments can vary widely in complexity, “in all cases the BIA must involve the relevant person in the assessment process, consult widely and gather information relevant to their decision-making and  provide a report that explains their conclusion and their reasons for it. This work can be time consuming, particularly when there are several consultees or extended travelling times.”

The study also makes the point that BIAs have enormous responsibility in making their assessments, as they can be open to legal challenge.

The Law Commission recently published its consultation document into mental capacity and deprivation of liberty, which I considered here. Among its recommendations, the first of which is the abolition of DoLS as incomprehensible and unworkable, is the proposal to create the Approved Mental Capacity Professional. AMCPs would have more far reaching powers than BIAs, and would carry even greater responsibility.

Were these proposals to be made into law (through amendments to the Mental Health Act), it would be interesting to see the impact both on the work of this new professional compared to the BIA, and the overall bombardment rate of local authorities for people lacking capacity.