Assessing Best Interests – part 2

The training continues – it’s a fairly robust one as far as it goes and although it might not be apparent, despite the  density of content, I am finding the substance interesting.

As promised on the first day of the training, more of the bits and pieces are fitting together as we progress and a better idea of how exactly the assessments will be conducted is forming somewhere in my head.

Generally, I have found the Mental Capacity Act (2005) very helpful in my work to date. It has codified a lot of ‘common law’ practice and provides a much stronger system of safeguards to both those who are affected by it through the lack of capacity – either temporary or permanently.

It also includes safeguards for those who work with people who lack capacity.

Yesterday among lots of other things a couple of issues jumped out from the course. Firstly that when there is a call to authorise deprivations of liberty there will be two types of orders that can be made.

Standard orders which need to be completed within 21 days and can be completed prior to the deprivation of liberty taking place. These are what we will be concerning ourselves with – there is some leeway just this April to manage backlogs and the timings will be slightly more generous – but these are the assessments which will require the ‘6 tests’ (Age, Mental Health, Mental Capacity, Best Interests, No refusals, Eligibility (phew, I did that all without looking – something must be getting through to the brain!)) by at least two people (the Mental Health part of the test has to be completed by a doctor and the Best Interests part has to be completed by a Best Interests Assessor).

In some ways though, the Urgent orders were more curious. These orders can be made for ‘up to 7 days’ and can be made by the managing authority which would be a hospital or a care home.

On the training with me, were some AMHPs who are based in general hospitals in liaison teams – so this perspective was coloured a little by their experiences – and, to put it lightly, I expect liberal use of urgent orders over the next few year or so.

On the course, the trainer referred to ‘sectioning’ under the Mental Capacity Act – by which these orders were considered. And come to think of it, it is an authorisation of a deprivation of liberty that is not so very different from the sectioning process that is currently undertaken under the Mental Health Act. Of course, there are many substantial differences but it is still a significant action and  power – being able to make judgements and compelling orders requiring someone to be in a particular case. Of course, capacity (or rather the lack of it) might purvey a less draconian impression but ordering people around is not something to be taken lightly.

The other curiosity was the discussions regarding conditions that can be attached to orders regarding the deprivation of liberty. Again, a few eyes (and mine included, I have to say) lit up at the prospect of being able to attach conditions to care homes and hospitals – a way, perhaps, of solidifying rights and promoting better care. I have attached conditions to a Guardianship which has specified that a person has access to local community amenities to ensure she is not ‘held’ in the care home or hauled back every time she tries to leave.  A condition, for example, that Mr T can be deprived of his liberty for up to a year on condition that he has given frequent access to the local community.

We have been forewarned though about attaching conditions to which any cost may be attached. I am assuming this will be something that will be shaped over time and in practice.

So I have a break in the training now – we have some more days to attend next week as well as some written work, a presentation and a legal test (and hopefully – although this is something I am yet to negotiate – some study time from work).

Our ‘homework’ task is to, within our localities, find out exactly what and how our employers are prepared and to come back with a knowledge of the details of how assessments will be managed by the local PCTs and Councils and how they will be distributed amongst BIAs (Best Interests Assessors).

I am quite looking forward to getting my teeth into that one. Not least because I am desperate to know the answers!

And in other, completely non-related news, I completed a job application form for the first time in, well, a few years. Haven’t sent it yet though. I am sure I’ll get around to commenting on it over the next week or so..


4 thoughts on “Assessing Best Interests – part 2

  1. Interesting, as always.

    I have attached conditions to a Guardianship . . .
    As you well knowm Guardianship solely gives 3 powers, so attaching any conditions to it has been commonplace but they’ve always been optional recommendations (rather than absolute requirements that have statutory force).

    The other curiosity was the discussions regarding conditions that can be attached to orders regarding the deprivation of liberty.
    This is different from Guardianship. I must say, our Trust solicitor and LA solicitor both don’t see DoLS as a way of determining care through attaching conditions – locally the DoLS is seen in a very concrete “What information is needed so we can answer the question : is the proposed deprivation of liberty the correct thing to authorise, yes/no?”
    Anything else is seen as unwelcome distracting stuff to read through which should be in CPA or Safeguarding or whereever, but shouldn’t be in DoLS.

    What we have found locally is that formal Best Interest meetings are a great way of attaching recommendations/requirements that then are lawful. Incapacitated adult, vulnerable, never gave cash to mean daughter before, daughter exploiting her, have a formal BI meeting, determine it’s in the patient’s best interests not to leave their home/a care home with a daughter to go to a cash machine/bank to empty cash for her. Since that’s a decision made under sec 4 of the MCA 2005 to enable care to lawfully be delivered under sec 5 MCA 2005, to go against such care (without Donee, Deputy , Advance Decision or Declaration saying otherwise) we’ve been advised that for this specific decision/actoin that if the daughter were to remove the lady to go and get cash (and this process if contrary to the formal BI meeting outcome) then this would be unlawful.

    The MCA 2005 lets us make recommendations that have teeth, but I thought this was through the Best Interest framework rather than through DoLS.

    We have been forewarned though about attaching conditions to which any cost may be attached.
    A tricky one, this. No doubt like you, we’ve been involved in placing folk in care, using the Best Interests framework of the MCA 2005 rather than Guardianship. Some folk are self funding. So already, before DoLS, we’re requiring how people receive care and requiring them to pay for the privilege . . .

    A job application? Working with older adults or moving to another area of practice?


    • I took the conditions attached to the Guardianship on in consultation with our legal people but it related directly to the place of residence (namely that we would seek to return X to residential home Y only when she had been absent for a period of 24 hours). It was more to ensure that the residential home did not become over-zealous in their enforcement and require that the person in question was able to go out and about during the course of the day.

      I suppose I haven’t given enough thought to the issue of conditions. I saw it as a possible way to ensure that these kind of conditions could be attached – X must have access to local amenities etc etc. Perhaps, being only half-way through my course, this will become clearer! It seems to make more sense as you have presented it..

      Regarding cost, we discussed at length exactly the issue that you raise relating to private placements and the difficulties that arise. I imagine there will be case law before long. And that placing conditions in any manner will be less useful that first imagined.

      And yes, the job is actually a more senior one in exactly the same team I am in right now.. .hence the reticence. It has been advertised externally and it could potentially be awkward if I apply and am not considered. But you know, I really like my job and the opportunity to be promoted without having to move and into a non-management senior post (I have no desire to manage a team) is too great a chance to pass by. I’ve worked with older adults since I qualified and moved from a Community Care Team into a specialist Mental Health Team. I think there is so much more scope and work that needs to be done with older adults that I can’t see myself wanting to move into any other area of work at present…

  2. All interesting stuff and hope that your local area has got some plans in place as it all takes a while to set up. Down here we are running the service in tandem with the PCT (they are giving us their money and we run the service) but different elsewhere. Because LAs and PCTs mainly are so off the pace the DoH announced last week that all DOLS requirements can be passed from PCTs and vice versa under Section 75 agreements. A complete about face so think that things aren’t rosy across England & Wales for 1st April. Getting Section 12 Drs on board has been one of the trickiest issues.

    The conditions are interesting and really add to the role of the BIA acting independently. You are right about the tensions with employers and commissioners and some feel that community care law might be altered by these arrangements. My understanding of the conditions is that they aren’t to eradicate DOLS but to make the DOLS care plan more palatable for the relevant person. How they are enforced I’m not sure because they are up the Managing Authority to carry out without any review.

    With regards to Safeguarding I don’t think that DOLS and Guardianship should be used to prevent contact with people as they don’t have any particular weight and can’t act as an injunction. The legal advice I have received is that we should still be getting Court of Protection orders for incapacitated people if we need others to stop having access. I agree with Shrink that should be about deprivation of liberty and not muddled but we wait for the case law as you said.

    • A part of our ‘homework’ is to find out more about local plans – I would be amazed if we don’t have a similar reciprocal arrangement with the PCT though – especially as the training course involved quite a few social workers based in General Hospitals.
      I have to say, the general impression I am getting is a lot of terrified panicking from officialdom.

      I am still fairly new to all this (the AMHP/Guardianship thing) so have in most cases relied on advice as much as anything. I think there’s likely to a flood of case law fairly quickly.

      Interesting times, huh? 🙂

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