Eligibility to be a best interests assessor is described in the DoLS Regulations. (66)
Best interests assessors are the lynchpin on which the entire edifice of DoLS rests, and they have a range of duties that fall to them within the operation of the Safeguards.
Best interests assessors are often the main assessors though a mental health assessor may also assess capacity. They are responsible for ascertaining that the person is 18 or older (the age assessment, now generally incorporated as part of the best interests assessment). They are solely responsible for assessing whether there are any lawful decision-makers who object to what is proposed (the ‘no refusals’ assessment). If qualified also as Approved Mental Health Professionals under the Mental Health Act 1983 (as amended), they are able to carry out the eligibility assessment, to decide whether this person’s rights should be protected by the use of the MHA or the MCA, via the Safeguards.
Most significantly, they must carry out two vital tasks: they are responsible for deciding whether a restrictive situation is authorised by Sections 5 and 6 of the MCA, or whether it amounts to a deprivation of the person’s liberty. If they conclude, given all evidence and scrutiny of the concrete situation of the person, and in the light of current case law, that the person is deprived of their liberty, they must assess holistically whether the restrictions are in the person’s best interests, and proportionate to the risk and seriousness of harm to that person without the proposed restrictions. They must keep abreast of developments in case law to carry out these tasks correctly.
It is the role of the best interests assessor to:
- suggest any conditions that might reduce the need for ongoing deprivation of liberty, or lessen the impact of the deprivation on the relevant person
- frame any conditions so that they apply to such matters that the managing authority can control (rather than general care planning)
- discuss any conditions in advance of setting them with the managing authority, to ensure that the managing authority can comply
- suggest a maximum length for which authorisation can be granted – this can be for up to a year, although many supervisory bodies are reluctant to authorise for such a long period (however, an authoriser can shorten the period from that suggested by the best interests assessor, but cannot lengthen it).
DoLS example from practice
Millie (39) has a learning disability, and following the death of her mother, who cared for her, has been placed in a care home as an emergency. The home has sought an authorisation under the Safeguards because Millie is distressed and resisting personal care in a very challenging way. The other residents are all older people with dementia. Both the best interests assessor and the IMCA, who was commissioned when the supervisory body found that Millie no longer had no close relatives or friends, feel the placement is wrong for her. The best interests assessor recommends authorisation for a maximum of four weeks to allow a best interests process to take place and somewhere more suitable to be found. She suggests a condition that the managing authority should recognise Millie’s bereavement, and work with her to create a life story book.
If the person cannot choose their own representative, and there is no holder of a lasting power of attorney who can do this, it falls to the best interests assessor to suggest somebody. This is usually a fairly simple matter, and should be discussed when other matters are being explored as part of the assessment process. Where there are a number of children, for example, all aged over 18 and living quite locally, any of whom would be an ideal representative for their parent, best interests assessors often make a point of involving them (and the parent where possible) in the decision. Given the time-limited nature of the authorisation, some best interests assessors suggest that the adult children agree to take it in turns to carry out the representative role. The supervisory body administrators need to be careful in such a circumstance to comply with the regulatory framework and terminate one appointment before appointing another person, which must always be with the agreement of the person proposed (standard forms 25, 26 and 27).
The best interests assessor must come to an opinion on this wide range of matters, and provide sufficient evidence to enable the authoriser to understand how they reached their conclusions and recommendations. The evidence must be detailed, and gained from:
- discussion of the restrictions, and possible less restrictive options that have tried or might be available, with the person and their relatives or friends if any (and in the light of a report commissioned by the supervisory body from an IMCA if they have nobody other than paid carers to be consulted)
- examination of care plans and discussion with paid staff caring for the relevant person
- discussion with the mental health assessor, including gaining their opinion on the possible effects on the person’s mental health of the authorisation
- contact with the eligibility assessor to share relevant information.
Support
It is the duty of the supervisory body to support the continued learning and practice development of best interests assessors. This is currently done in a range of ways. As well as the mandatory annual refresher training, many supervisory bodies:
- arrange regular meetings of best interests assessors with the DoLS lead, to discuss practice and case law;
- send out regular bulletins to assessors with highlights from Court of Protection or European Court of Human Rights judgements;
- encourage best interests assessors to attend regional or national assessor forums;
- have an MCA DoLS panel to which best interests assessors submit a set number of anonymised assessments per year, which are used to feed back individually or to groups of assessors;
- encourage recognition of best interests assessors by managers and peers as MCA and human rights champions;
- ensure that the DoLS lead supports them by being available for discussion if needed.
Assessments in hospitals
The best interests assessor’s role is not to authorise or scrutinise clinical decision-making in any way. It is to look at the conditions surrounding the provision of care or treatment and decide whether or not those conditions deprive the relevant person of their rights to liberty and security of under Article 5 of the Human Rights Act 1998.
Most supervisory bodies have experienced little or no difficulty in identifying competent best interests assessors to carry out assessments in hospitals, even where all the best interests assessors are local authority staff. Many best interests assessors from the four qualifying professions (social work, occupational therapy, nursing and psychology) have experience in hospital settings, often across a range of specialist health provisions.
However, although the task is essentially the same and similar issues will arise, some local authority best interests assessors may be carrying out assessments in hospitals for the first time. As with care homes, the assessor will need to understand the environment in which the assessment is taking place.
The best interests assessor must recognise that there is a wide spectrum of different hospitals which might apply for an authorisation, ranging from small community hospitals often used for rehabilitation, to large acute hospitals with many specialities, to mental health units designed for compulsory detention. The nature of the specific hospital is relevant to a finding of deprivation of liberty, which is probably more likely within a setting where people are customarily detained than in a smaller more homely one.
The assessor should understand the legal context of hospital treatment and case law relevant to hospital settings. A best interests assessor should also be able to recognise when it may be appropriate for the hospital to make an application to the Court of Protection under Practice Direction 9e (67) (applications relating to serious medical treatment) ref to PD9e.
DoLS example from practice
Molly (91) was admitted to a large general hospital from her home with a chest infection. She had advanced dementia, and her daughter Jean had given up her work as a hospital nurse to care for her, with the help of two other nurses funded by a direct payment. The family belonged to a minority religious group, and often felt misunderstood by the wider community.
Molly lacked capacity to consent to admission, or to treatment: her admission, and the treatment for her chest infection, were agreed to be in her best interests. Molly also had a pressure sore and an infected toe. Jean and the other nurses had been treating these under the supervision of the GP, who agreed that Molly was probably approaching the end of her life.
Relations between ward staff and Jean were poor. Jean was seen as bossy and interfering, and in her turn she felt staff ignored her greater knowledge of her mother’s condition. She also complained about staff being slow to provide essential personal care. Voices were raised on both sides. Staff then criticised Jean’s previous care of her mother, citing the pressure sore, and raised a safeguarding alert. They allowed other relatives, and religious leaders, to visit Molly, but barred Jean from the ward. Jean’s solicitor queried this and the hospital then gave itself an urgent DoLS authorisation, and requested a standard authorisation.
The best interests assessor, Frank, spoke to the other nurses who had looked after Molly at home, and to the GP. They praised Jean’s nursing skills and commitment to her mother’s wellbeing, while commenting on her perfectionism and tendency to micro-manage. Molly’s elderly husband, and other relatives and friends, all wanted Molly home as soon as she was well enough, to be cared for by Jean, the other nurses and the GP, for the rest of her life. The hospital’s position was that Molly should remain there, so her other medical problems could be treated. Staff said that if the deprivation of liberty was not authorised they would still prevent Jean from seeing her mother, under the umbrella of safeguarding. Frank explained that where relatives and professionals disagreed, if mediation was unsuccessful the hospital must apply to the Court of Protection for a best interests decision. He shared his opinion that it was disproportionate to the risk and seriousness of harm to Molly to refuse to allow Jean to visit, and to refuse to consider whether, and how, Molly might return home.
After discussions with the hospital’s legal department, and with the GP, it was decided that Molly’s treatment could safely continue in her own home, with additional input from the district nurses.
What makes a good best interests assessment
The key questions for a best interests assessment is what the person wishes for and where they want to be. Lord Justice Munby, lecturing in different parts of the country to Safeguards Adults leads from local authorities and health settings, (68) has often stressed that, fundamental to the process of properly engaging the person in the decision-making process, is listening to and taking account of their wishes and feelings. The fact that people lack the relevant capacity does not mean that their wishes and feelings simply fall out of account. It is elementary that decisions are made by reference to the vulnerable adult’s best interests. It is equally elementary that in determining where the best interests of these people truly lie it is necessary to have regard to their wishes and feelings, whether verbalised or articulated or not. To have regard to their wishes and feelings is not merely something mandated by the European Convention on Human Rights and the Mental Capacity Act. It is surely fundamental to treating P as a human being and with dignity.
The second key question is assessing whether any restriction or restraint is covered under Sections 5 and 6 of the MCA or whether it goes beyond this and amounts to a deprivation of liberty. This entails a good understanding of case law, both from the UK courts and from the European Court of Human Rights.
These two tasks require best interests assessors to follow the best interests checklist in Section 4 of the MCA. This includes interviewing the person and their relatives if any (or, if they have no relatives or friends apart from paid staff, taking account of the IMCA’s views and findings) and also considering whether the proposed restrictions are proportionate both to the likelihood of harm to the person and to the seriousness of that harm.
References
66 – No. 1858 The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008
Also see Schedule A1 paras 16,39,40,42, 53
68 – Safeguarding, Capacity and the Law: A talk by Sir James Munby, President of the Family Division, at the National Spring Safeguarding Adults Conference of the Local Government Association ‘Leading Adult Safeguarding’ in London on Tuesday 12 March 2013