So I’m in the middle of a training course at the moment which will enable me to act as a Best Interests Assessor come April. It is fairly intensive training which, quite honestly, left me shattered at the end of the day – although I have to say – it was much more interesting than I was expecting. The post, therefore, might be a bit more haphazard than usual but I wanted to fill in some random thoughts I had yesterday.
Just to clear up though, the Best Interests Assessor role is a new one that is being created in response to a European Court ruling in HL v Bournewood (2004) which, to cut a long story short, found that Bournewood Hospital had acted illegally in detaining a patient who lacked capacity in an informal manner when he had no way of leaving the hospital. He was, as the judgement say, being deprived of his liberty.
The result of the judgement is that if someone lacks capacity and is not being held in hospital under the Mental Health Act (1983) , they may be being deprived of their liberty.
The so-called ‘Bournewood Gap’ is being papered over by adjustments to the Mental Health Act and the Mental Capacity Act which mean that those who are being deprived of their liberty in a hospital or a care home setting will need to be placed, according to Article 5 of the European Convention of Human Rights (incorporated now, into the Human Rights Act 1998) within a legal procedure that enables this deprivation of liberty and – as became a point of much discussion yesterday – under Article 5 (4).
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
So here we are, having a new procedure in place to assess and, if necessary, through legal process – authorise a deprivation of liberty for up to a year, maximum – of someone who lacks capacity.
There seems to be ongoing consternation about how the actual assessments will be undertaken. One of the benefits of doing the training – such as I am doing – is that there are people there present from a wide variety of local authorities. None seem terribly well prepared (including my own).
There were stories of people hearing about other authorities that were much better (and much worse) prepared. Some of it is quite frightening really.
One person attending the training was the sole person undertaking this course in the borough that she works in. I wouldn’t want to be in her shoes. There were a couple of people who had recently or were about to retire and were looking for an ongoing income stream which seems particularly canny.
The course I’m attending is particularly for people who are already working as AMHPs so we are all social workers – although Best Interests Assessors can equally by nurses, chartered psychologists or occupational therapists. There are different (and longer) training courses for those who are not practising AMHPs – basically to fill in on the Mental Health Act interfacing that we are already up to date on.
The worrying thing is that the assessments look to be fairly time-consuming. Each assessment will need to be carried out by at least two people – a doctor (for the Mental Health part of the assessment) and Best Interests Assessor (for the.. er.. best interests part).
I might come down to more of the details in a future post and as the course progresses.
We make ample use of the Mental Capacity Act (2005) in our team already. My impression is that it is most widely used currently in services that relate to Older People. Certainly the people in these teams (I know, it’s not very modest because I’m including myself) have a better working knowledge of the Act to date. We’ve done lots of training around the Mental Capacity Act and are all fairly used to the new forms of Mental Capacity Assessments and the ways and means of the decision-maker through this process – but there really is no room for complacency because, as I am discovering, there is a whole lot more to learn.
I have to say Bournewood Hospital was cursed once or twice throughout the day.
Ultimately though, safeguards are important – it is just a process that I imagine will need a lot of fine-tuning – probably through case-law, before it is perfected – if it ever is.