I wrote a while ago about why this review process was never intended to replace the independent review by the Court of Protection, as it is not a review by an independent judicial body but by the self-same body that authorised the detention in the first place. Nevertheless, the review process can be very important for ensuring that the supervisory body monitors the relevant person’s situation. In some cases it might help to resolve issues or disputes – although, it cannot be a substitute for going to court if the relevant person remains detained and they, or their representative, are objecting to their detention. The Health and Social Care Information Centre (HSCIC) collect data on the DoLS annually, including data on reviews, but they have not published the review data before. I requested this data under the Freedom of Information Act 2000 and back in September they released to me the aggregate data on reviews, which showed that overall the number of reviews was pretty low in comparison to the number of authorisations, and that reviews were only very rarely triggered by the detainee or their representative.
The HSCIC have now released this data broken down by individual supervisory body (here). I have matched the review data for local authorities to the number of authorisations, to look at how closely these are related to each other:
The data reveal only a moderate correlation (coefficient = 0.52) between the number of authorisations and the number of reviews. There are some eyebrow-raising outliers in the data – some local authorities have very large numbers of authorisations, but very few reviews (for example, one local authority with 117 authorisations had only 3 reviews), meanwhile some local authorities have a huge number of reviews in comparison with the number of authorisations (one local authority had 16 reviews for only 2 authorisations).
Given the general pattern variable use of the DoLS, it is hardly surprising to find a bit of a postcode lottery in relation to reviews, but what do these data actually mean? Should supervisory bodies be aiming for high or low review rates? Answering that question is not especially straightforward. What we are, at base, interested in is making sure that a person’s situation is regularly monitored to keep track of changes, and ensuring that a review is conducted whenever a person’s situation changes. The trouble is, the data don’t allow us to pick into several important variables.
High rates of reviews may mean that managing authorities and supervisory bodies are keeping on top of these changes and reviewing where appropriate; but low rates of reviews do not necessarily mean that they are not. This is because some supervisory bodies may prefer to keep on top of possible changes in a person’s situation by issuing only short term authorisations, and re-assessing to see whether to extend the original authorisation. This could account for supervisory bodies with very high rates of authorisations but only a few reviews. Anecdotally, some supervisory bodies do this to keep up pressure on managing authorities (and indirectly commissioners) to resolve problems with a person’s care plan which may mean that the detention is not in their best interests. A short authorisation forces the supervisory body to go back and conduct a new assessment, and raises the spectre that unless there are changes the authorisation may not be renewed. By contrast, a review relies upon the supervisory body later on exercising their discretion to conduct one or waiting for a referral from the managing authority or relevant person or their representative. What we really need, to disentangle these issues, is supervisory body level data on the average duration of authorisations and/or the number of authorisations per person.
Likewise, it is hard to know whether we want to see a high rate of requests for reviews by the relevant person or their representative. On the one hand, it is their right to request a review – and if it is being regularly exercised then that suggests that they are able to understand and exercise that right. On the other hand, if the managing authority and the supervisory body are keeping on top of monitoring what is going on, then the relevant person and their representative should not need to request reviews themselves.
As ever with DoLS, it is very hard to dig beneath the data to see what exactly is going on. What we can say is that supervisory bodies seem to be applying the review process in differing ways. This may reflect the use of different strategies to monitor a person’s situation (use of short term authorisations v regular reviews), or it may reflect individual differences in whether they are monitoring appropriately at all.