The Role of the Best Interest Assessor
Chelvanayagam Menna
Clinical Trainer in Mental Health
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Drivers
• the European Court of Human Rights (ECtHR) in its October 2004 judgement in the Bournewood case (HL v UK), highlighted that additional safeguards are needed for people who lack capacity and who might be deprived of their liberty • the “Bournewood Gap” • Re C
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DOLS Deprivation of Liberty Safeguards
The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 were made on 9 July 2008. They were subject to the affirmative Parliamentary procedure & so were debated in both Houses of Parliament. They came into force on 3 November 2008.
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Regulations
The Deprivation of Liberty Safeguards (DOLS) have been introduced into the Mental Capacity Act 2005 by the Mental Health Act 2007.
Mental Health Act 2007
Amended Mental Health Act 1983 Mental Capacity Act 2005
Deprivation of Liberty Safeguards CoP
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Purpose
• The safeguards provide a framework for approving the deprivation of liberty for people who lack the capacity to consent to treatment or care in either a hospital or care home that, in their own best interests, can only be provided in circumstances that amount to a deprivation of liberty.
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Process
• The safeguards legislation contains detailed requirements about when and how deprivation of liberty may be authorised. • It provides for an assessment process that must be undertaken before deprivation of liberty may be authorised and detailed arrangements for renewing and challenging the authorisation of deprivation of liberty.
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successful training approved by Secy of State
• between April and September 2009, a Supervisory Body may be satisfied that a best interests assessor has successfully completed training approved by the Secretary of State if they have: 1. attended all the required teaching provided by an eligible university or by its approved provider, and 2. submitted all the required assignments and / or sat all required examinations
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DOLS legislation relates to England and Wales the regulations relate to England only
1. the eligibility criteria for & selection of DOLS assessors 2. timescales for completing assessments 3. the information to be submitted with a request for a standard authorisation of deprivation of liberty 4. the arrangements that are to apply where there are disputes about the place of ordinary residence of a person coming within the scope of the DOLS provisions 5. the selection & appointment of representatives for people who become subject to a DOLS authorisation
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Process: six assessments
Best Interest Assessor coordinates all six assessment before DOLS authorisation 1. 2. 3. 4. 5. 6. age assessment no refusal assessment mental capacity assessment mental health assessment eligibility assessment best interest assessment
Ref: Briefing Sheet Deprivation of Liberty Safeguards (October 2008) Gateway Reference: 8965
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the BIA must consider the views of:
• • • • • anyone named by the person as someone to be consulted anyone engaged in caring for the person or interested in his or her welfare any attorney, and any deputy The best interests assessor may recommend conditions to be attached to any authorisation issued – for example, steps to be taken to keep contact with the family or to ensure cultural or faithbased needs are met.
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The Mental Health Nurse as BIA
• an extended role of a Mental Health Nurse • skills • knowledge of MHA 1983, MHA2007, MCA2005, DOLS and the CoP • experience • be an impartial, independent decision maker, coordinate assessment and recommend authorisations to the Supervisory Body and the Management Authority • act in the ‘Best Interest of the Individual’
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