Best Interests Assessor Role: An Opportunity or a ‘Dead End’ for Adult Social Workers?

Rachel Hubbard

doi:10.1080/09503153.2017.1372738

Abstract

This opinion article explores the significance of the Best Interests Assessor role in England and Wales for social workers working with adults. It considers the challenges of the role following the Supreme Court’s Cheshire West (2014) judgement and the implications for BIAs of the Law Commission’s 2017 plans for replacing DoLS with the ‘Liberty Protection Safeguards’. The author explains why they consider the BIA role to be a valuable one for the status of adult social work as well as for people who may lack capacity to uphold their human rights, with some reservations about the risk of diluting the safeguards the current role represents for those vulnerable people.

Highlights

The Best Interests Assessor (BIA) role was created as part of the Deprivation of Liberty Safeguards (DoLS) amendment (2007) to the Mental Capacity Act (MCA) (2005) in England and Wales, on 1st April 2009 in response to the HL v UK (2004) judgement
Health professionals, such as nurses working for NHS Continuing Health Care (CHC) teams or hospitals as responsible bodies, will need to make Liberty Protection Safeguards’ (LPS) decisions and with a lower number of trained BIAs in these settings there is reason for greater concern about the availability and quality of the professionals making these decisions
Not least how long will it take for the amendments to the MCA, new regulations and revised MCA Code of Practice to go through Parliament and for these changes to be enacted, especially since the destabilising result of the 2017 UK General Election

Summary

Introduction

The Best Interests Assessor (BIA) role was created as part of the Deprivation of Liberty Safeguards (DoLS) amendment (2007) to the Mental Capacity Act (MCA) (2005) in England and Wales, on 1st April 2009 in response to the HL v UK (2004) judgement. This means that new applications would no longer be necessary when the person moves or goes into hospital and applications would not be needed to the Court of Protection (sometimes called ‘domestic’, ‘judicial’ or ‘community’ DoLS) if a person lacks mental capacity to consent to their care or treatment outside hospital and care home This new approach would put the responsibility for assessment and decision-making around deprivation of liberty in the hands of the bodies responsible for initially commissioning the person’s care and treatment e.g. local authorities and NHS bodies, rather than relying on care homes or hospitals to know when their residents are being deprived of their liberty. The skills and knowledge of BIAs will be needed by those working in ‘responsible bodies’ e.g. social workers and health professionals acting on behalf of local authorities and NHS services to carry out their capacity assessments and make their ‘necessary and proportionate’ decisions They will be needed by independent reviewers and those authorising LPS assessments within these responsible bodies to ensure that the quality of evidencing decisionmaking is maintained. Without this time for comprehensive learning, what confidence can there be in the deprivation of liberty decisions that will be made?

What impact will the Liberty Protection Safeguards have on adult social work?

Findings

Conclusion