To become a Best Interests Assessor, social workers have to be registered with Social Work England for at least 2 years and enrol on a postgraduate BIA-DOLS qualification.
Eligibility to be a best interests assessor is detailed in the DoLS Regulations.
MENTAL CAPACITY ASSESSMENTS MADE SIMPLE
A BIA-DOLS qualification course qualifies a social worker or other professionals such as nurses to assess people in situations, such as residential care or hospital, where their liberty may be in question, and their mental capacity to make decisions for themselves.
The best interests assessment training gives you the chance to update your skills in practice interventions and deepen your knowledge base about current research and policy in contemporary social work practice.
It is linked to your professional requirement as a social worker to provide evidence of Continuing Professional Development (CPD), as part of your continued registration with Social Work England.
Using the case study below, I discuss how a Best Interests Assessor will go about assessing people.
Best Interests Assessment (BIA) Essay Sample
Case study
P is a 52-year-old woman who was diagnosed with vascular dementia in 2014 and was moved into a care home in August 2019.
Prior to moving in to a care home, P lived alone in her own home and had a care package in place however, her care package was not working well due to her declining health condition.
She felt unsafe and together with family; they asked for support for her to be placed in a care home.
P suffers from a complex range of medical conditions which include tonic clonic and absence seizures.
P cannot weight bear and is hoisted for all transfers.
P’s mental health condition affects on her ability to understand and process information.
P meets the criteria for a package of care funded by the Local Authority at the care home.
The package of care includes 24 hour care, 7 days a week which includes 24 hours of 2:1 support (support with personal care, transfers, toileting and community access) and 51 hours of 1:1 support (maintaining nutrition, medication management, maintaining a habitable home environment).
P enjoys going out for a meal, attending and engaging in church activities, colouring, painting and talking about her childhood memories.
Essay on Best Interests Assessment
This essay will show my understanding of how to complete a best interest assessment, including the skills required.
The assessment was to determine whether P is being deprived of her liberty and whether it is in her best interests?
The essay will draw on case laws, legislation, and the Code of Practice.
In the case of P, a standard application had been made by the managing authority.
Assessments must be completed within 21 days for a standard deprivation of liberty authorisation, or, where an urgent authorisation has been given, before the urgent authorisation expires (DOLS COP 4.1).
An urgent authorisation will last for a period of 7 days.
There are six qualifying requirements[1] (paragraph 12 of Schedule A1 of the MCA 2005).
However, it is recommended that the best interests assessment, which is likely to be the most time-consuming, is not started until the other five qualifying requirements are met (DOLS COP 4.20).
These assessments must be carried out by a minimum of two assessors – a mental health assessor and a Best Interests Assessor (BIA) (DOLS COP 4.13).
Upon reflection, the BIA was not involved in the care or treatment of P, nor in decisions about her care (DOLS COP 4.13).
However, she had more than two years’ post-qualifying experience and had been successfully trained and approved by the Secretary of State (paragraphs 4.58 – 4.60 of the MCA DOLS Code).
Age Assessment
The age assessment requires an individual to be 18 years or above (DOLS COP 4.23) as the safeguards apply to people aged 18 and over (DOLS COP 1.12). P is 52 years old and meets the age assessment eligibility criteria.
The BIA established this by checking P’s medical records and birth certificate. However, when it has not been possible to verify a person’s age, the assessor should base their decision on the best of their knowledge and belief (DOLS COP 4.23).
No refusals
The BIA checked for any advance decision which conflicts with the planned deprivation of liberty and made contact with P’s health and welfare LPA however; he did not share any conflicting views on P’s placement (DOLS COP 4.25).
In hindsight, this meant that there was a no refusal and other assessments could proceed.
However, if the LPA had disagreed, the DOLS cannot be authorised and alternative arrangements for P would be considered.
MCA 2005
The purpose of the MCA is to determine whether P lacks capacity to consent to staying at the care home.
The BIA used the five principles of the MCA 2005 to support with this assessment (s.1 MCA). She first assumed capacity (Principle 1 – s.1 (2) MCA).
This first principle was also highlighted in KK v STCC [2012] EWCOP 2136. I observed that the BIA took all practical steps to support P to make a decision (Principle 2 – s.1 (3) MCA).
The need to take all practical steps was also highlighted in paragraph 47 of The London Borough of Wandsworth v M & Ors (Rev 2) [2017] EWHC 2435 (Fam)[2].
In addition, the College of Social Work Best Interests Assessors capabilities document (2013), emphasise the need to enable the person contribute to the decision-making process as far as possible.
For instance, P’s key worker was present to support her. In addition, the BIA used note pads and wrote clearly as she identified from staff that P was able to read simple words (MCA COP 4.49) (appendix 1).
P was also informed of the purpose of the assessment (paragraph 1.4.10 of NICE guidelines)[3].
However, the BIA highlighted that P will not be treated as unable to make a decision should she make an unwise decision (Principle 3 – s.1 (4) MCA).
The BIA concluded that P was unable to understand, retain the salient information due to her memory loss, unable to use and weigh or communicate her decision (functional test – s.3 MCA).
She added that memory loss is a symptom of vascular dementia, which is an impairment of the mind or brain (diagnostic test – s.2 MCA).
Upon reflection, because of that impairment, P is unable to make the relevant decision to consent to her care at the care home.
The BIA made it clear that P’s inability to make a decision is caused by the diagnosed vascular dementia and not any other factor.
In hindsight, this ordering supports anti – discriminatory practice and case law PC & Anor v City of York Council [2013] EWCA Civ 478 paragraph 52 (b) emphasises the importance of having a clear ‘causative nexus’.
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Mental health assessment (COP 4.33)
This is to establish if P has a mental disorder (vascular dementia) in accordance with s1 (2) of the Mental Health Act (MHA) 1983.
The mental health assessment was undertaken by a doctor approved under s.12 of the MHA 1983.
Eligibility
A mental health assessor checked to ascertain whether P is eligible for detention under the MHA as this would make her ineligible for DOLS.
However, she was not eligible and was eligible for DOLS. BIAs who are also qualified as AMHP may be asked to complete the eligibility assessment on Form 4.
As all assessments were positive, the Best Interests Assessment was undertaken.
Best interests assessment
The BIA’s role was to determine;
Whether a DoL is occurring, necessary, whether restrictions are proportionate and in P’s best interests.
Is there a DoL?
Drawing from case law Storck v Germany 61603/00 [2005] ECHR 406, the BIA identified the three components of a deprivation of liberty (appendix 2).
Objective element
Evidence of continuous supervision and control[4]
Following case law Guzzardi v Italy 7367/76 [1980] ECHR 5 features known as the ‘Guzzardi factors’ were identified.
In hindsight, when followed, it provides the evidence for continuous supervision and control which may be exercised by the care home in the case of P.
In NRA & Ors, Re [2015] EWCOP 59 judgement made it clear that it is well established that the approach to the existence of a deprivation of liberty is governed by the Guzzardi principle.
P’s concrete situation was determined by the BIA referring to her care plan, notes, conversation with P, carers and family (appendix 3).
Necessary to prevent harm and proportionate to risk of harm.
The BIA considered the actual risk or harm, potential risk of harm to self and not to others[5], how severe the harm may be and how likely the harm is.
The BIA shared that although P’s article 5 and 8 rights had been breached, the restrictions in place were proportionate to the risks identified.
For instance, 2:1 support for P’s transfers was required to ensure safe and comfortable transfers for P. Support was required with continence management to reduce risk of infection and loss of dignity.
Best interests and balance sheet
The BIA established P’s past and present wishes and feelings (s.4 (6) MCA) and consulted with family and carers (s.4 (7) MCA).
I felt that the BIA followed the Best Interests Checklist (s.4, MCA) and a best interest balance sheet (appendix 4) to explain the pros/cons of options available to P.
The BIA appointed and consulted a Relevant Person’s Representative (RPR) [6] and explained their right to receive support from an IMCA (s.39D and s.39A MCA) and also their right to appeal to the Court of Protection under s.21A of the MCA.
To conclude, P was being deprived of her liberty and it was necessary, the supervisory body authorised the DOL for six months and therefore the managing authority was able to lawfully deprive P of her liberty in the care home (DOL COP 3.9).
References
Case laws
Cheshire West and Chester Council v P [2014] UKSC 19, [2014] MHLO
Guzzardi v Italy 7367/76 [1980] ECHR
LB Wandsworth v M & Ors
London Borough of Hillingdon v Neary & Anor [2011] EWHC 1377 (COP)
PC & NC v City of York (2013) EWCA 4178
WBC v Z [2016] EWCOP 4
Wye Valley NHS Trust v Mr B (2015) EWCOP 60
Legislation
European Convention on Human Rights (1950)
Care Act 2014
Mental Health Act 1983
DOLS Code of Practice
Human Rights Act (1998)
Mental Capacity Act 2005
Mental Capacity Act 2005 Code of Practice
Online resources
Association of Directors of Adult Social Services in England (ADASS). The Mental Health Capacity Act – Deprivation of Liberty Safeguards – Guidance and Forms. Available at https://www.adass.org.uk/deprivation-of-liberty-safeguards (Accessed: 13th October 2019)
College of Social Work Best Interests Assessors capabilities document of 2013. Available at https://www.skillsforcare.org.uk/Documents/Learning-and-development/social-work/psw/BIA-capabilities.pdf (Accessed: 18th October 2019)
Deprivation of Liberty Safeguards. Available at http://www.mentalhealthlaw.co.uk/Deprivation_of_Liberty_Safeguards (Accessed: 15th October 2019)
Deprivation of liberty safeguards: a practical guide. Available at http://www.lawsociety.org.uk/support-services/advice/articles/deprivation-of-liberty (Accessed: 19th October 2019)
Mental Health Case Law. Available at http://www.mentalhealthlaw.co.uk/Mental_health_case_law (Accessed: 8th October 2019)
Schedule A1 to the MCA 2005. Available at http://www.legislation.gov.uk/ukpga/2005/9/schedule/A1 (Accessed: 18th October 2019)
Social Care Institute for Excellence. Available at https://www.scie.org.uk/atoz/?f_az_series_name=Case+studies&page=1 (Accessed on 22nd October 2019)
Vascular dementia: what is it, and what causes it? Available at https://www.alzheimers.org.uk/site/scripts/documents_info.php?documentID=161#Causes (Accessed on 21st October 2019)
39 Essex Chambers. Available at http://www.39essex.com/resources-and-training/mental-capacity-law (Accessed: 18th October 2019)
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