The Eligibility Assessment

1. The Eligibility Requirement and the Eligibility Assessment

The eligibility requirement

The eligibility requirement is one of the 6 qualifying requirements that must be assessed before a standard authorisation can be granted.

The eligibility assessment

The eligibility assessment is the means by which the eligibility requirement is assessed. The eligibility assessment relates specifically to the relevant person’s status, or potential status under the Mental Health Act 1983.

Schedule 1A of the Mental Capacity Act sets out the specific circumstances when;

  1. It is not lawful to authorise a Deprivation of Liberty under the Mental Capacity Act; and
  2. The person’s rights should instead be protected using the safeguards of Mental Health Act 1983.

The eligibility assessment can only be carried out by;

  1. A person who has been 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.
If the person carrying out the eligibility assessment is not the same person that will be carrying out the Best Interests assessment, they have the power to request all relevant information regarding eligibility from the Best Interests Assessor, and the Best Interests Assessor has a duty to provide this.

2. When the Mental Health Act 1983 normally applies

The relevant person would not normally meet the eligibility requirement under the Deprivation of Liberty Safeguards in the following circumstances;

Case 1

  1. The relevant person is being detained in hospital for the primary purpose of being provided psychiatric treatment; and
  2. The relevant person is, or could be detained under section 2 or 3 of the Mental Health Act 1983; or
  3. The relevant person is on leave of absence from detention, subject to a supervised community treatment order or subject to conditional discharge; and
  4. The relevant person objects to some or all of their psychiatric treatment; or
  5. The relevant person would be likely to object if they were able to.

Case 2

  1. The person is being detained in a care home as part of a treatment plan under the Mental Health Act; and
  2. The person objects to some or all of their Psychiatric treatment; or
  3. The person would be likely to object if they were able to.

3. When the Mental Capacity Act normally applies

The relevant person would normally be eligible for a standard authorisation under the Mental Capacity Act in the following circumstances;

  1. The relevant person is receiving care and treatment under the Mental Health Act in a care home but the deprivation of liberty is not specifically related to the care or treatment they are receiving under the Act;
  2. The relevant person is being treated under the Mental Health Act but is then admitted to hospital for the treatment of a physical illness;
  3. The person does not object (nor would they be deemed likely to object if able to) to the care and treatment they are receiving under the Mental Health Act.

4. When it is not clear which Act applies

Sometimes it is not clear whether the relevant person is eligible for a standard authorisation under the Mental Capacity Act. In these situations the code of practice offers the following advice;

  1. If the issue is around whether the person is likely to object to care and treatment you should err on the side of caution (as most people would object);
  2. Use the Best Interest principles to decide which Act would best safeguard the person, taking into account all of the relevant factors.

5. Action if the Deprivation cannot be authorised under DoLS

If a deprivation is occurring but it is not eligible to be authorised under the Mental Capacity Act the assessor must advise the;

  1. Supervisory body; and
  2. The clinician (or Local Authority in the case of guardianship orders) with responsibility for managing the relevant person’s treatment plan.

The clinician is then responsible for taking any appropriate action to safeguard the relevant person’s rights under the Mental Health Act.

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