DoLS process - best interests assessment

[FiniteSagacity]

I’m asking for your collective wisdom to educate me on the DoLS assessment process - I’ve read AgeUK and NICE guidelines about what is supposed to happen but please share your experiences so I can understand what might happen next in practice in my DF’s case and how I should prepare.

To summarise, we have both finance and health LPAs for DF who is already in a nursing home. DF is still mobile with aids but a falls risk. He is a difficult character who has no diagnosis of dementia but medical opinion is that he needs 24 hour supervision - this was a hospital in a different area though and I’m considering a subject access request to gather evidence.

I think the DoLS application (by nursing home) was in the Autumn of 2024 but I recently had contact with social care about something else and the social worker mentioned DF is still on the waiting list and that there will be a best interests assessment that we’ll be invited to.

DF has become quite hostile and will say he’s in prison and it’s my fault to an assessor (it’s a very nice prison and he is self-funding for now). I was present for social care needs assessment and NHS FNC assessments so I have a timeline of the rollercoaster that led us to nursing home.

I am a best interest assessor and signatory. Is there anything specific you want to know?

@Louisetopaz21 thank you. I guess my anxiety about this comes from recent rants where DF says I must relinquish my LPA and that he believes he is in prison. My siblings are thankfully all on the same page as me but they are not subjected to his anger. It’s familiarity breeds contempt - so it may well be my siblings who join the assessment rather than me.

I guess I’d like to know what the assessor will need or already have, to take into account?

To add, DF has got wind of another resident in the nursing home having the freedom to go out on a mobility scooter… what will be explained to him about the assessment?

Looking with interest as my DM had a dols assessment last week but I was told there was no need for me to attend . They didn't really say what they were going to discuss with her. They mentioned deprivation of liberty.

I replied and didn't post it.
Do not worry BIAs are very experienced so we have seen it all. I assessed a school teacher who thought she was living in a school and all the residents were her pupils. We try and gently orientate the person but will not directly challenge and cause distress. The assessor will need to find your dad's understanding of where he is living, what care he receives and the restrictions in place such as he would be stopped from leaving the home. However this is done sensitively. A section 12 doctor will also visit jusy to check he is not eligible under the mental health act and that he meets the criteria for a impairment of the mind/brain. It is good practice to invite families so they can support the person. Ypu don't need to prepare though I always appreciate a pen picture of the person so I can understand what is important to them.

DOLs (deprivation of liberty) applied for by a nursing home are normally part of the assessment process when they are looking at the permanency of his placement, so if he's been there more than 6 weeks for example, it would be the first review. Power of attorney wouldn't be activated unless he hasn't got capacity to decide where he should live for example. My mum has a DOLs as she lives in a care home but believes that she is in hospital and everyone is trying to kill her. It's for the staffs protection as well as technically without a dols a resident could request to leave and they wouldn't be allowed to stop them.

You have good understanding of the DoLS process. However it is an independent assessment from the needs assessment so if the person meets Lady Hale's acid test from being admitted to the home they should be submitting a referral doesn't matter where ever the person is there short or long term. The DoLS authorisation doesn't strictly prevent leaving the home, it basically runberstamps the best interests decisions in place one would be the person would be stopped leaving the home otherwise it would be problematic if someone had not had an assessment due to a backlog.

I didn't cover everything, I used to write the dols applications for local authority care homes, though it was a while back

Thank you both, so helpful to have insights on both the side of referral @Lightuptheroom and assessor @Louisetopaz21. Really helpful to hear assessor will have a large pinch of salt with the story DF will spin 🙏

@Iloveeverycat like you, I just know the theory and wasn’t sure what happens. I was a bit surprised it hadn’t happened already (but he’s safe now so not a priority).

I might say I can’t attend if a sibling can do the assessment or the assessor is happy to talk to me separately. DF is just being vile to me at the moment and in reality the outside world is exhausting and overwhelming when we do take him out (thankfully he always wants to return to the nursing home!).

Most local authorities have huge DoLS backlogs - it's part of the reason the Liberty Protection Safeguards were being brought in instead but they keep being pushed into the long grass by what is now several governments.

However there are mechanisms in place to apply for an urgent DoLS Authorisation if it's needed.

I wouldn't be surprised if your dad's recent objections haven't pushed him up the list a bit.

Thanks @hatgirl for sharing the bigger picture of backlogs, I have tried to bear the context of overstretched services and political tinkering in mind and I’m always polite and respectful. It must be very hard working in a long backlog and within a little understood area. I’m not minded to chase this up and just wanted to feel prepared whenever they get to us.

DF will spin a story of freedom but he couldn’t make the arrangements to book a taxi, let alone move out. While a nursing home comes with some restrictions on his liberty, he really needs the prompting and round the clock care to keep him alive.

Have been thought this with my mother; I’ve found the assessor to be incredibly diligent, compassionate and thoughtful. I think they are well used to dealing with people who for a variety of reasons have no insight into their own care needs. Sometimes they are unintentionally hilarious as they write down verbatim what the conversation was.

Doesn't he need a capacity assessment first before anyone can submit a dol, what do the care home think he needs a dol for and if he's not got capacity then the health lpa can start, there's no need for a best interest meeting.

It's two separate things.

He will have had a capacity assessment at the point of admission by the sound of things.

The OP having LPOA means she can legally make the decision to place him there if he is considered to lack capacity to make the decision himself without having to have a best interests meeting with the local authority.

The care home as the physical place that is 'detaining' him has to apply in its own right to legally detain him there 'against his will' (a lack of capacity means he can't consent to it) and the local authority has to sign off the application.

Everyone in a care home who lacks capacity has to have a DoLS, most are standard DoLS applications and there are huuuge backlogs for these being signed off by local authorities. However in situations where someone is actively objecting and indicating they want to leave, an urgent DoLS can be applied for and will happen quite quickly.

Thanks hatgirl, I thought dols doesn't apply to medical decisions, I know urgent dols can be applied for and always thought the carehome manager could authorise that, it's good to learn so appreciate your knowledge. If he has capacity I guess he's free to leave.

DoLS isn't really to do with medical decisons. It's more about keeping someone somewhere they can't consent to be kept.

Lady Hale's acid test

Is the person free to leave

Is the person subject to continuous supervision and control

That applies whether the person is in a hospital or in a care home and it is the setting they are in that needs to make the application for a DoLS.

If a person lacking capacity meets the 'acid test' within a non regulated setting, e.g. their own home then the deprivation of their liberty still needs to be signed off in what is know as a 'Court of Protection (CoP) DoLS - for example if they have cameras or sensors monitoring their movements within the house, or live in carers, and they can't leave the house without supervision or control.

However things like using covert meds, sedative meds, restraints such as lap belts on wheelchairs, baby gates etc should also be considered as part of a DoLS application.

Thanks @hatgirl I know the nursing home had to apply but that does clarify roles. Also appreciate you clarifying about live in carers.

In practice DF wasn’t leaving his previous sheltered accommodation, when he was free to do so.

My anxiety is mainly around the lack of any mental health condition being diagnosed (despite lots of assessments) but DF is now unable to do most of the activities of daily living - and none of the instrumental ADLs.

So while he will say he wants to leave, he needs the care and prompting.

A person does not need to have a conformed diagnosis but the section 12 dr can determine a probable diagnosis. In terms of him requesting to leave the home can be seen as a challenge to the authorisation and without wanting to cause you any worries because you don't need to be potentially it can be progressed as a section 21a challenge for a judge to determine if the placement is in his best interests and necessary and proportionate. This does not mean that you will be criticised at all, it just ensures his Article 5 rights under the Human Rights Act is upheld, he will get access automatically to legal aid. https://openjusticecourtofprotection.org/ this explains in simple terms for families but honestly do not worry though but you might find it interesting.

https://wp.me/pc5lMH-3Ni

Thank you @Louisetopaz21 this is very interesting and I prefer to understand and be prepared 🙏

@Louisetopaz21 Amanda Hill’s story is so helpful - I’ve shared with my siblings, even though I know we might not end up down that road. Thank you so much for sharing.

You are so welcome I share this with families

Well we’ve had the doctor and social worker assessments but we’re now waiting for the report and I’m wondering if we’ve made a terrible decision.

Our father was only willing to appoint his busiest most stressed out child as his personal representative… so assessor has been told it will have to be an independent (paid for by legal aid) representative.

I hope he gets someone experienced and brilliant. I hope this means the nursing home enable more outings - especially because he is currently self-funding.

I hope we haven’t made a terrible mistake which forces us into court discussions which will just distress him.

Just to say that if he's objecting to the placement (even if he doesn't have capacity) the independent representative (RPR) will be obliged to appoint a solicitor to launch a s21A challenge in the Court of Protection. It's non means tested and doesn't mean he will move but can take several months for a final decision.

Thank you @Mimosa3andmore it helps to manage my expectations of timing, I think a s21A is inevitable after things DF said at the assessment. I just hope we don’t regret an Independent Advocate getting involved.

Family have both LPAs but DF has no formal diagnosis, mild cognitive impairment and fluctuating capacity have been mentioned but DF has no insight or acceptance of his needs.

Family basically don’t want what time they can spend with DF eaten up doing paperwork to fight being in the nursing home, when it conflicts with what we (and several medical professionals) think he actually needs.

Family would rather help DF feel less deprived of his liberty by making the best of the setting and taking him on outings.