The Best Interests Assessment
1. The Best Interests Requirement
The Best Interests requirement is one of the 6 qualifying requirements that must be assessed before a standard authorisation can be granted.
The Best Interests requirement is made up of 4 conditions:
- That the person is, or is to be detained in a care home or hospital;
- That it is in the Best Interests of the person to be detained in the hospital or care home;
- That, in order to prevent harm to the person it is necessary to detain them in the care home or hospital; and
- That the detention is a proportionate response to the likelihood and seriousness of harm.
2. The Best Interests Assessment and the Best Interests Assessor
The Best Interests assessment
The Best Interest assessment is the mechanism by which the 4 conditions of the Best Interest requirement are tested.
The Best Interest Assessor (BIA)
The Best Interests Assessor (BIA) is the name given to the person responsible for carrying out the Best Interests assessment.
The BIA role is a specialist role, and the person appointed must:
- Be an approved mental health professional (AMHP); or
- Be a registered social worker; or
- Be a qualified and registered first level nurse, Occupational Therapist or chartered Psychologist; and
- Have had at least 2 years post qualifying experience; and
- Have successfully completed approved Best Interest Assessor training; and
- When completed more than 12 months ago, undertaken further training relevant to the role within the last year.
3. Stage 1: Determining whether the Person is Deprived of their Liberty
Determining whether the person is deprived of their liberty
The first condition that the Best Interest Assessor must determine is whether the relevant person is detained (and as such, being deprived of their liberty). They should do this by:
- Examining copies of relevant assessments or care plans drawn up by the Local Authority; and
- Examining copies of any relevant assessment or care plans drawn up by the managing authority; and
- Consulting with the managing authority to understand how any care plans are being implemented.
The Best Interest Assessor must then apply the acid test to consider whether the care plan, and how it is being implemented constitutes a detention, and therefore a deprivation of liberty.
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:
- They are subject to continuous supervision and control; and
- Not free to leave the place in which they are detained; and
- The care and treatment being received is imputable to the state (the responsibility of the state to provide).
If the Best Interests assessor was previously appointed as a suitable person to establish whether the person was 'detained' Stage 1 should not be repeated unless there have been changes to the person's circumstances.
If the person is not deprived of their liberty
If the outcome of stage 1 is that there is no deprivation of liberty, then:
- The other 3 conditions of the Best Interest requirement do not need to be assessed; and
- The BIA should complete DoLS form 3A; and
- The DoLS assessment process should cease immediately.
4. Stage 2: Determining whether the Deprivation is in the Relevant Person's Best Interests
When stage 2 applies
Stage 2 only applies if the outcome of stage 1 was that the person is being deprived of their liberty.
What stage 2 must establish
Stage 2 must establish whether:
- It is in the Best Interests of the relevant person to be detained in the hospital or care home; and
- That, in order to prevent harm to the relevant person it is necessary to detain them in the care home or hospital; and
- That the detention is a proportionate response to the likelihood and seriousness of harm.
The Best Interests principle
The BIA must have full regard for the Best Interest principle as set out in the Mental Capacity Act at all times.
Extensive guidance about applying the Best Interests principle can be found in the 'Making Best Interest Decisions' section of the Mental Capacity Act resource.
Click here to access it.
The code of practice
The BIA must refer to the Deprivation of Liberty Code of Practice as required to guide and support their practice.
Who must be consulted
The Best Interest Assessor must consult:
- The relevant person (with the support of an IMCA as required);
- The managing authority of the hospital or care home in which the relevant person is, or is to be detained.
Where any of the following people exist the Best Interest assessor should also consult with them as an interested person:
- The relevant person's spouse or civil partner;
- The relevant person's partner (whom they were living with as if married);
- The relevant person's children and step-children;
- The relevant person's parents and step-parents;
- The relevant person's brothers and sisters, half-brothers and half-sisters, and stepbrothers and stepsisters;
- The relevant person's grandparents;
- A Deputy appointed for the relevant person by the court;
- A donee of a lasting power of attorney granted by the relevant person.
In addition to the core requirements of the Best Interests principle the BIA must consider specifically:
- Whether any harm could arise to the person if the deprivation is not authorised;
- If so, what this harm is likely to be;
- How likely that harm is to occur;
- What other care and treatment options there are which could avoid the deprivation of liberty; and
- If the deprivation is currently unavoidable, what steps can be taken to avoid it in the future.
Making a determination
The BIA must have specific regard to the following when making a determination about the Best Interest requirement:
- The conclusions of the Mental Health assessment about the likely impact of detainment on the person's mental health;
- Any relevant needs assessment (an assessment carried out by the Local Authority or the care home/hospital); and
- Any relevant care plan (drawn up by the Local Authority or the care home/hospital);
- Information given, or submissions made by any RPR, Donee of a Lasting Power of Attorney or IMCA.
Recommending conditions to an authorisation
If a deprivation is in the person's Best Interests the BIA should identify and record whether there are steps that the managing authority (registered person at the care home or hospital) could reasonably take to:
- Reduce the level of restriction on the person; or
- Remove the need for the deprivation.
If a standard authorisation is granted the authoriser of the supervisory body must:
- Consider the BIA 's recommendations; and
- Unless there is reasonable cause not to, incorporate them into the standard authorisation; and
- Arrange for the conditions to be monitored.
There are likely to be local variations regarding the use of conditions in a standard authorisation.
Recommending the duration of the standard authorisation
The BIA must consider how long it would be in the person's Best Interests to be deprived of their liberty. This should be as short a time as possible, and can never exceed 12 months.
If a standard authorisation is granted the authoriser of the supervisory body must grant it for a period:
- In line with the BIA's recommendation; or
- Shorter than the BIA's recommendations; but
- Never longer than the recommendations of the BIA.
Recommending an appropriate Relevant Person's Representative (RPR)
The Best Interests assessor must:
- Make a recommendation about who should be appointed as the person's RPR; and
- Ensure that the recommendation is appropriate; and
- If the recommendation is for a family member or friend to act, confirm whether a section 39D IMCA has been requested.
Click here to access guidance about recommending RPR's, including who can and who cannot act as an RPR and the role of an RPR.
The BIA should recommend an RPR of the person's own choosing unless:
- The person does not want to choose their own RPR; or
- The person lacks capacity to choose their own RPR.
If the person lacks capacity the recommendation should reflect the views of any:
- Donee of a Lasting Power of Attorney authorised to make the decision; or
- Any Deputy authorised to make the decision.
If there is no Donee or Deputy the BIA should make a recommendation in the person's Best Interests, and if there is no suitable family member or friend the BIA should recommend the appointment of a section 39C IMCA.
If a standard authorisation is granted the authoriser of the supervisory body must appoint an RPR based on the recommendations of the BIA.
If the deprivation is not in the person's best interests
If the Best Interests assessor does not believe that the deprivation is in the person's best interests:
- They should record that the Best Interests requirement is negative (not met); and
- The supervisory body should not grant a standard authorisation.
If the managing authority of the care home or hospital continues to deprive the person of their liberty when the BIA has assessed it not to be in their best interests to do so this is an unlawful deprivation, and consideration should be given to:
- Raising a safeguarding concern;
- Raising a service provider concern; or
- Applying to the Court of Protection (especially if there is disagreement about what is in the person's Best Interests).
5. Providing a Report
The Best Interest Assessor must provide a written report to the supervisory body, explaining their conclusion and the reasons for it. This should be recorded using:
- DoLS form 3 if stage 2 has been completed; or
- ) DoLS form 3A if the person was deemed not to be deprived at stage 1.
The Best Interests assessor must state the following in their report:
- Who has been consulted (name and address of each person);
- If the Best Interest requirement has not been met, a statement to this effect;
- If the Best Interests requirement is met, the maximum authorisation period recommended (which can be no longer than 1 year);
- Any conditions that they recommend to be included in the authorisation; and
- Any views they have about an appropriate relevant person's representative.