Revisiting Best Interests Assessments

Last week, I carried out a Best Interests Assessment for a man whom I had first assessed six months ago.   In fact, he was the first person I had assessed under the new Deprivation of Liberty Safeguards. I had, at that point, recommended that the Deprivation of Liberty that he was experiencing in the care home in which he was placed be authorised – and I recommended that the authorisation be for six months.

So I was asked back. It makes a lot of sense. Although it was one visit six months ago, I had, at that point, made contact with and discussed the situation with his family members, his care team and his CPN, as well as having a meeting with him directly.

I had made some recommendations the last time I visited but they were not binding conditions, just some aspects of his life that I thought might make a difference to the quality of his life and was pleased to see that these had been actioned almost immediately that I had left the previous time.

It is obvious to say, but it is much easier, reassessing than assessing the first time. Immediately on seeing him, it was obvious to me that he looked physically better, less troubled and agitated. Although I only see a snapshot, by conversation and discussion, that was the picture that was painted for me all around.

My initial choice of six months was because it just felt wrong to me to go for a full year authorisation – especially as I felt that there were a number of adjustments that could be made in the short-term.

In retrospect, I’m glad I did it. I’m glad I was able to go back and see things having improved.

Some aspects of the Deprivation of Liberties Safeguards are flawed, I think. We have not  had a lot of referrals coming in, certainly far less than were envisaged.

Partly I think this is due to the policy guidelines and thresholds being adjusted upwards to more narrowly define what a Deprivation of Liberty is.

I think it is also partly due to a reluctance of managing authorities to make referrals, perhaps seeing it as a criticism or a failing, instead of a positive.

I placed someone in a care home a couple of months ago and I felt immediately on placing her that the placement would be an unfortunate but necessary deprivation of liberty. I informed the home manager that I felt this was the case and recommended that she refer to the Supervisory Body. She was horrified and assured me that the resident was happy at the care home. It took a bit of nagging and the involvement of her IMCA (Independent Mental Capacity Advocate) to facilitate the Deprivation of Liberty Safeguards process but I wondered if her reaction was typical of home managers.

We have also had a number of requests for authorisations come from our psychiatric in-patient wards – particularly those for over 65s. A number of people who have been referred have failed the ‘eligibility’ part of the assessment process meaning that they meet the criteria for a Mental Health Act Assessment rather than the DoLs process.

If anything, it has led to more people being detained formally in hospital. I’m of the mind that this is no bad thing as the Mental Health Act has more robust appeals processes in place than the Mental Capacity Act and the DoLs process which has very weak appeals processes.

Then there is the sticky issue of the right to (free) care under Section 117 of the Mental Health Act – so if a person has been subject to Section 3 of the Mental Health Act, the authorities are responsible for paying for after care services. I should probably devote a whole post to this at some point. It has become a major issue in our Trust and most, I assume, as older people who might not have been formally admitted previously, are now entitled to free aftercare – often through placements – which is some of the most expensive aftercare possible.

I often ponder if people, in general, are aware of their rights to free aftercare but as I said, that’s probably another story for another day..

A knock-on effect of the new safeguards, locally, at least, seems to be that there are more formal admissions.

I’m not sure this was the way that things were ‘meant’ to work but lots of interesting issues being thrown up..

11 thoughts on “Revisiting Best Interests Assessments

  1. I am really enjoying reading about some of the legislation and tools you use, they are so different than in my state in the U.S. Before I got into child welfare, I used to work in adult mental health. I worked a few years at a residential home for adults with schiophrenia and schizo-affective disorders. I know I would have been very interested in the Deprivation of Liberty and Best Interest Assessments.

  2. Thanks so much for that. I sometimes wonder if the policy stuff is of any interest to anyone who isn’t really involved in the day to day operations so it’s good to hear that it is proving interesting. I know I’m not always as attentive as I could be to explanations! In general though, despite my grumblings, the actual Mental Capacity Act although fairly new, has made a massive difference in the actual day to day functioning and practice within our teams – and a positive change at that. We cannot make assumptions about what we think might be best for someone who does not have the capacity to make decisions about their lives but have to think through each decision as it is made and enable and facilitate those decisions according to the criteria of the Act.
    Some parts still need a little attention but generally, it has improved practice and outcomes.

  3. One thing that really struck me was the language used. “Deprivation of Liberty” is something that sounds so “American” (as Americans area always prioritizing “liberty” through our “rights” as it goes back to the constitution), yet we have nothing like this. It makes me wonder about naming and how well policies’ names match what they actually do. The names of these policies and assessment tools have a very “strengths-based” names, so it’s interesting to hear that in practice they are also strengths based.

    I’m thinking of a few child welfare “strengths-based” policies and tools that are used that in actuality aren’t so strengths based.

    And I am very interested in policy! 🙂

    • I never thought of that actually (the ‘american linguistic style’) but that’s possibly because I’ve become so used to the types of phrases we use.
      The term itself ‘deprivation of liberty’ is directly related to the development of the law the changes stemmed from caselaw when a man without capacity was judged by the European Court of Human Rights to have been deprived of his liberty without recourse to any legal appeal process when he was held in a psychiatric hospital informally – simply because he never asked to leave. The case is quite well-known here and a search on ‘Bournewood Ruling’ will bring up the details.
      So the UK government had to respond with legislation as the current ‘informal’ systems of detention for people who lack capacity were out of line with the European Convention of Human Rights (which is now a part of UK law under the Human Rights Act).
      So the language is based on the European Convention which is arguably based on the US Bill of Rights – so it isn’t surprising in that sense that the language is very similar.
      In effect, the Mental Capacity Act has made massive steps forward in the consideration of the rights of those who lack capacity and in making safeguards and ensuring that those who may have fluctuating capacity are not rushed into decisions made for them in those moments that they might lack capacity – but some of the details are not quite there yet. The appeals process stinks, for example..
      Hope that makes some kind of sense!

  4. I’m am AMHP having been an ASW for somewhile before that.
    So far i’m feeling that people without capacity need to be assessed formally to see if their liberty is being deprived. i don’t feel relying on a care to to refer in will reach the standard that the ECHR was aiming for.

    • I agree – I think that the idea behind the Act is a good one but some of the details are not very well thought through.

  5. I’m always a sucker for a DOLS post so thanks and keep ’em coming- I find the policy stuff fasinating. Interesting point about the language and I have heard this point before. People often seem to forget the safeguard part of the DOLS process and just focus on whether the person actually meets the criteria for DOLS and whether they need an assessment in the first place.

    Agree about the impact of the MCA. It has developed practice significantly, forced people to think a bit more and to some extent slowed down hospital discharges etc in a positive way. I think it has impacted on the medication prescribed, the interventions and also the risk assessments that take place. In a negative way it has meant that when people have been assessed as having capacity then it is a vehicle for services to justify non intervention despite a clear need for some assestive support or intervention. Interesting to hear about the increase in MHA admissions. I have found less people being detained on Section 3 and more DOLS applications considered.

    On a slight tangent have noticed that people are now becoming inundated with advocates. IMCAs, IMHA, RPRs and informal advocates. Where we are the IMCA service provider has been contracted to provide the ‘paid rep’ role and this has lead to some blurring of roles.

    As you said the referral rates are low and I have some issues with the lack of cheques and balances applied where the MHA needs the recommendations. I have found the BIA’s are trying to care plan and not focusing on the DOLS assessments. And those conditions……..Well that might be a post in itself!

    • I suspect the increase in referrals for Mental Health Act Assessments might be due to some particular local thinking on the matter.
      On the matter of advocates, I wholeheartedly agree, having someone at the moment who has an IMCA, an IMHA and another independent advocate all trying to involve themselves (!) but it’s better than there not being enough advocates!

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