Mental health assessors must first of all meet the regulatory requirements of the MCA DoLS Regulations 2008. (52) They must be medical doctors experienced in mental health: either approved under section 12 of the Mental Health Act 1983, or be registered medical practitioners with at least three years’ post-registration experience in the diagnosis or treatment of mental disorder, such as GPs with a special interest. It includes doctors who are automatically treated as being section 12 approved because they are approved clinicians under the Mental Health Act 1983. They must have completed the standard training as laid out by the Royal College of Psychiatrists. Like best interests assessors, they must complete annual refresher training that satisfies the supervisory body of their fitness to continue to practice as a mental health assessor. Some supervisory bodies encourage mental health and best interests assessors to attend joint refresher training, often consisting of case-law updates, case scenarios, and discussions of recent local assessments that have raised issues of good, or poor, practice.
A good mental health assessor should have experience relevant to the person’s condition. The supervisory body should consider whether, if possible, the use of a mental health assessor who knows the person professionally will be of benefit. Usually this will reduce the stress for the relevant person and the assessor may be best placed to assess them thoroughly. An assessor who has prior knowledge of the person may be better able to predict what effect deprivation of liberty would have on their mental health.
The local authority is responsible for ensuring that sufficient mental health assessors are available. A good relationship with local CCGs might enable authorities to initiate a dialogue with mental health services to encourage doctors approved under Section 12 of the Mental Health Act (particularly those with expertise with older people or learning disabilities) to train and practise as mental health assessors under DoLS.
Mental health assessors carry out assessments under the Safeguards in both care homes and hospitals. In some areas a small number of assessors do all – or almost all – of the appropriate assessment work for a range of local authorities. This situation carries some risk, as retirement or other events can lead to a sudden shortage of assessors. There is also a potential risk to the integrity of the Safeguards when the opinion and interpretation of a small number of assessors, however well informed, is relied upon. It may also become harder to identify a suitable different mental health assessor to carry out a review of previous assessments.
If local authorities identify problems in either the quantity or quality of mental health assessors, these should be discussed with the local CCG(s) and MCA lead(s).
The possibility and advantages of training as a DoLS mental health assessor can be promoted locally among, in particular, MHA Section 12 approved doctors working in the areas of older adults’ mental health, learning disability and acquired brain injury. The advantages include an enhanced knowledge of human rights law in general and of deprivation of liberty in particular, which will benefit people who use services while also updating the practitioners’ essential knowledge. A business case for local or regional training might be presented for the use of joint local authority/CCG resources available for implementing the Mental Capacity Act.
What makes a good mental health assessment
Case law reminds medical assessors and supervisory bodies that for the lawful detention of a ‘person of unsound mind’ within the meaning of Article 5(1)(e) of the European Convention on Human Rights, a true mental disorder must be established before a competent authority on the basis of objective medical expertise. The mental disorder must be of a kind or degree warranting compulsory confinement and the validity of continued confinement depends upon the persistence of such a disorder.
Mental health assessors and supervisory bodies should be cautious that, if an equivalent assessment is used, they are certain that these criteria are met, in particular that they are sure the person’s disorder has continued to be as it was previously described.
For the purposes of DoLS, the person meets the mental health requirement if suffering from mental disorder within the meaning of the Mental Health Act, but disregarding any exclusion for persons with learning disability. The MHA defines a mental disorder as ‘any disorder or disability of the mind’. Although the Act does not define these terms any further, it is likely that conditions falling within the definition could include:
- organic mental disorders such as dementia, or personality and behavioural changes due to brain injury and damage
- mental and behavioural disorders due to psychoactive substance use, schizophrenia and other delusional disorders
- affective disorders, such as depression and bipolar disorder
- neurotic, stress-related and somatoform disorders such as anxiety, phobic disorders, obsessive compulsive disorders, post-traumatic stress disorder and hypochondriacal disorders
- eating disorders, non-organic sleep disorders and non-organic sexual disorders
- personality disorders, such as antisocial personality disorder, borderline personality disorder
- autistic spectrum disorder
- learning disabilities (but with the exception that, for the Safeguards, there is no need for this to be associated with abnormally aggressive or seriously irresponsible conduct).
As Section 4.33 of the DoLS code of practice (53) explains:
The purpose of the mental health assessment is to establish whether the relevant person has a mental disorder within the meaning of the Mental Health Act 1983. That means any disorder or disability of mind, apart from dependence on alcohol or drugs. It includes all learning disabilities. This is not an assessment to determine whether the person requires mental health treatment.
The DoLS code of practice goes on to highlight the distinction between a mental health assessment and a mental capacity assessment:
- although a person must have an impairment or disturbance of the functioning of the mind or brain in order to lack capacity, it does not follow that they automatically have a mental disorder within the meaning of the Mental Health Act 1983
- the objective of the mental health assessment is to ensure that the person is medically diagnosed as being of ‘unsound mind’ and so comes within the scope of Article 5 of the European Convention on Human Rights.
When carrying out a mental health assessment, the standard form reminds the assessor to:
- consider how (if at all) the relevant person’s mental health is likely to be affected by him being a detained resident, and
- notify the best interests assessor of his conclusion (Schedule A1 to the Mental Capacity Act 2005 (54) paragraph. 36)
- consult with IMCA under section 39A of the Mental Capacity Act if applicable.
If the person is being assessed for a second or subsequent authorisation, the mental health assessor should consider how the person responded to any previous period of authorisation. If the person shows little sign of being reconciled to the authorisation, it is important that the best interests assessor is fully aware of this, in order to decide whether the restrictions are proportionate to the risk and seriousness of harm, in the light of the person’s evident unhappiness.
The Deprivation of Liberty Safeguards code of practice (55) reminds both best interests assessors and mental health assessors that it is a mark of good practice for them to discuss their findings and their opinions. In case of divergent opinions, this is particularly important: if the relevant person fails any assessment, the Safeguards cannot be used to protect their rights.
Isabel (28): DoLS example from practice
Isabel (28) has a mild learning disability, and suffered an accidental brain injury two years ago. Since the injury she has been very impulsive, putting herself at risk by rushing across roads, trying to jump out of cars and climbing out of windows. The triggers are usually pet animals or small children. She is being assessed for her second period of authorisation, in a specialist nursing home. The mental health assessor is concerned about the effect deprivation of liberty is having on Isabel’s mental health: there are signs of depression, and Isabel’s self-esteem appears lower than at the time of the earlier authorisation. She says nobody listens to her. The assessor explains his findings to the managing authority and the best interests assessor, and queries whether a less restrictive care plan, perhaps involving access to pets, is possible.
Checklist for mental health assessors
- The assessor is able to diagnose a defined mental disorder, with the assistance of clinical notes if available, or from interview and observation.
- If there is no formal diagnosis, the assessor is satisfied that there is a mental disorder as defined in the MHA, and has supported that opinion with description of relevant signs and symptoms.
- If there is a disorder, the assessor has described the signs and symptoms in sufficient detail to bear out the diagnosis.
- If the assessor considers that there is no mental disorder in the meaning of the Act, they have notified the supervisory body immediately, as there is no need for any further assessment to take place.
- The assessor has considered and described their opinion of the likely effect of a deprivation of liberty on this person’s mental health, with reasons for that opinion.
- The assessor has informed the best interests assessor of their opinion of the likely effect of a deprivation of liberty on this person’s mental health.
- The assessor has consulted with any IMCA appointed under MCA section 39A if applicable.
- The assessor has completed the form legibly, signed and dated it.
- The assessor will return the form to the supervisory body office, in a secure format, as soon as possible.