The Assessment of Qualifying Requirements for a Standard Authorisation

1. The 6 Qualifying Requirements

Assessing the requirements

Following a request for a standard authorisation the supervisory body must carry out, or arrange to carry out a separate assessment in relation to each of 6 qualifying requirements set out in Schedule A1 of the Mental Capacity Act. Together the requirements will determine whether;

  1. A relevant person is being deprived of their liberty; and
  2. Being deprived of their liberty is in their Best Interests.

The requirements are;

  1. The age requirement;
  2. The mental health requirement;
  3. The mental capacity requirement;
  4. The Best Interests requirement;
  5. The eligibility requirement; and
  6. The no refusal requirement.

The requirements should be assessed in turn as either positive (met) or negative (unmet). If any requirement is assessed as negative then the whole process of assessment must be stopped immediately and an overall DoLS assessment outcome determined as ‘negative’.

Qualifying requirement 1: The age requirement

The relevant person must be proportionately assessed through the ‘age assessment’ to confirm that they are aged 18 or above.

Qualifying requirement 2: The mental health requirement

A ‘Mental Health assessment’ must be carried out by a suitably skilled person to confirm that the relevant person is suffering from a mental health disorder (within the meaning of the Mental Health Act 1983) or a learning disability.

The assessor making the mental health determination must provide information to the person with responsibility for assessing the Best Interest requirement about;

  1. The impact (or likely impact) of the detention for care or treatment on the relevant person’s condition; so that
  2. The impact (or likely impact) can inform the best interest assessment outcome.

Qualifying requirement 3: The mental capacity requirement

A mental capacity assessment must be carried out to determine whether the relevant person lacks capacity in respect of ‘whether or not they should be accommodated in the care home or hospital in question for the purpose of being given the care or treatment in question’.

Qualifying requirement 4: The Best Interests requirement

The Best Interests requirement is made up of 4 conditions;

  1. That the person is, or is to be detained in a care home or hospital;
  2. That it is in the Best Interests of the person to be detained in the hospital or care home;
  3. That, in order to prevent harm to the person it is necessary to detain them in the care home or hospital; and
  4. That the detention is a proportionate response to the likelihood and seriousness of harm.
The Acid Test

The Acid Test (defined in the case of Cheshire West) sets out the 3 conditions that must always exist in order for a detained person to be deemed deprived of their liberty;

  1. They are subject to continuous supervision and control; and
  2. Not free to leave the place in which they are detained; and
  3. The care and treatment being received is imputable to the state (the responsibility of the state to provide).

Click here for further information and guidance about carrying out a Best Interests assessment.

Qualifying requirement 5: The eligibility requirement

There are specific situations when it is not lawful to authorise a deprivation of liberty. These are set out in schedule 1A of the Mental Capacity Act. 

The supervisory body must be satisfied that none of these apply before proceeding to grant an authorisation. The eligibility assessment is the mechanism for making this determination.

Click here for further information and guidance about carrying out an eligibility assessment.

Qualifying requirement 6: The no refusals requirement

The supervisory body must be satisfied through carrying out a ‘no refusals assessment’ that none of the following apply;

  1. A valid Advance Decision to refuse some, or all of the treatment in question exists;
  2. There is conflict with the decision of a donee of a Lasting Power of Attorney, where that donee has the authority to make a decision about accommodation for specific care or treatment; or
  3. There is conflict with a Deputy, where that Deputy has been granted powers by the Court to make a decision about accommodation for specific care or treatment.
If the ‘no refusals’ requirement is not met the supervisory body cannot grant an authorisation.

2. Appointing a Person to Carry out Qualifying Requirement Assessments

The responsibility of the supervisory body

The supervisory body is responsible for;

  1. Ensuring each qualifying requirement assessment is carried out; and
  2. Appointing a suitable person to carry out each assessment.

In all cases

All persons appointed to carry out an assessment must;

  1. Be able to demonstrate an applied knowledge of the Mental Capacity Act and related Code of Practice;
  2. Be able to maintain appropriate records and provide clear, reasoned reports; and
  3. Not be prohibited from working with vulnerable persons; or
  4. Not be involved in providing care, treatment or making decisions about the person; or
  5. Not be employed by the care home or hospital in which the person is detained.

The mental health assessment

In the case of the mental health assessment the person must also;

  1. Be approved under section 12 of the Mental Health Act 1983 (specifically trained and qualified in the use of the Act); or
  2. A registered medical practitioner with at least 3 years post registration experience in the diagnosis or treatment of mental disorder; and
  3. Have completed the Deprivation of Liberty Mental Health Assessors training programme; and
  4. When completed more than 12 months ago, undertaken further training relevant to the role within the last year.

The Best Interest assessment

In the case of the Best Interests assessment the person must also;

  1. Be an approved mental health professional (AMHP); or
  2. Be a registered social worker; or
  3. Be a qualified and registered first level nurse, Occupational Therapist or chartered Psychologist; and
  4. Have had at least 2 years post qualifying experience; and
  5. Have successfully completed approved Best Interest Assessor training; and
  6. When completed more than 12 months ago, undertaken further training relevant to the role within the last year.
Need to know
The supervisory body is not permitted to appoint the same person to carry out the mental health assessment as it appoints to carry out the Best Interests assessment.

The mental capacity assessment

The mental capacity assessment can be carried out by;

  1. Anyone suitable to carry out a Best Interest assessment; or
  2. Anyone suitable to carry out a mental health assessment.

The eligibility assessment

The eligibility assessment can be carried out by;

  1. Anyone approved under section 12 of the Mental Health Act 1983 who is also able to carry out the mental health assessment; or
  2. An approved mental health professional (AMHP) that is also able to carry out a Best Interests assessment.

An age assessment and a no refusals assessment

Both the age assessment and the no refusals assessment can be carried out by anyone eligible to carry out a Best Interests assessment.

3. Powers of a the Person Carrying out an Assessment

To enable the assessor to fulfil their role, they have powers to;

  1. Examine and take copies of health records;
  2. Examine and take copies of any record of the Local Authority (in respect of Adult Care and Support or Children’s Services functions);
  3. Examine and take copies of any other record held by the Local Authority (in respect of Adult Care and Support or Children’s Services functions);
  4. Examine and take copies of any records held by a registered service provider.

4. The Timeframe for Assessments

All assessments for a standard authorisation must be carried out within 21 days from the date that the supervisory body receives a request unless;

  1. The managing authority has issued an urgent authorisation; in which case;
  2. All assessments for a standard authorisation must be completed within 7 days (or 14 days if an extension to the urgent authorisation is appropriate).

5. Written Records

The assessor must make a written record of any assessment carried out to determine whether a qualifying requirement is met. This must be provided to the supervisory body who must in turn provide a copy to;

  1. The relevant person;
  2. The managing authority of the care home or hospital; and
  3. Any section 39A IMCA; and
  4. In the case of the Best Interest Assessment, anyone consulted by the Best Interests Assessor.

6. Requirements when Deciding the Outcome

The assessor must take into account any submissions made, or information given by the following people when making a determination;

  1. Any Relevant Person’s Representative (RPR);
  2. Any section 39A IMCA;
  3. Any section 39C IMCA; and
  4. Any section 39D IMCA.

7. Qualifying Assessments and Existing Authorisations

If the request for a standard authorisation is being made because a current authorisation is due to expire, the supervisory body does not have to carry out new assessments to determine that qualifying requirements are met, so long as;

  1. Written copies of all previous assessments are available;
  2. Previous assessments were carried out within the last 12 months;
  3. Previous assessments comply with current requirements; and
  4. There is no reason why previous assessments are no longer relevant.

If the previous assessment in question is a Best Interest assessment the supervisory body must take into account any subsequent written or verbal submissions made by;

  1. Any Relevant Person’s Representative (RPR);
  2. Any section 39C IMCA; or
  3. Any section 39D IMCA.

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