Adult Social Care Glossary, v 0.6

Eligibility to carry out a best interests assessment
5. (1) A person is eligible to carry out a best interests assessment if paragraphs (2) and (3) are met.

(2) The person must be one of the following--

(a) an approved mental health professional;
(b) a social worker registered with the General Social Care Council;
(c) a first level nurse, registered in Sub-Part 1 of the Nurses’ Part of the Register maintained under article 5 of the Nursing and Midwifery Order 2001;
(d) an occupational therapist registered in Part 6 of the register maintained under article 5 of the Health Professions Order 2001; or
(e) a chartered psychologist who is listed in the British Psychological Society’s Register of Chartered Psychologists and who holds a relevant practising certificate issued by that Society.

(3) The supervisory body must be satisfied that the person--

(a) is not suspended from the register or list relevant to the person’s profession mentioned in paragraph (2);
(b) has at least two years post registration experience in one of the professions mentioned in paragraph (2);
(c) has successfully completed training that has been approved by the Secretary of State(5) to be a best interests assessor;
(d) except in the 12 month period beginning with the date the person has successfully completed the training referred to in sub-paragraph (c), the supervisory body must be satisfied that the person has, in the 12 months prior to selection, completed further training relevant to their role as a best interests assessor; and
(e) has the skills necessary to obtain, evaluate and analyse complex evidence and differing views and to weigh them appropriately in decision making.

An assessment, for the purpose of the deprivation of liberty safeguards, of whether deprivation of liberty is in a detained person’s best interests, is necessary to prevent harm to the person and is a proportionate response to the likelihood and seriousness of that harm.

Eligibility to be a best interests assessor is described in the DoLS Regulations.

Best interests assessors are the lynchpin on which the entire edifice of DoLS rests, and they have a range of duties that fall to them within the operation of the Safeguards.

Best interests assessors are often the main assessors though a mental health assessor may also assess capacity. They are responsible for ascertaining that the person is 18 or older (the age assessment, now generally incorporated as part of the best interests assessment). They are solely responsible for assessing whether there are any lawful decision-makers who object to what is proposed (the ‘no refusals’ assessment). If qualified also as Approved Mental Health Professionals under the Mental Health Act 1983 (as amended), they are able to carry out the eligibility assessment, to decide whether this person’s rights should be protected by the use of the MHA or the MCA, via the Safeguards.

Most significantly, they must carry out two vital tasks: they are responsible for deciding whether a restrictive situation is authorised by Sections 5 and 6 of the MCA, or whether it amounts to a deprivation of the person’s liberty. If they conclude, given all evidence and scrutiny of the concrete situation of the person, and in the light of current case law, that the person is deprived of their liberty, they must assess holistically whether the restrictions are in the person’s best interests, and proportionate to the risk and seriousness of harm to that person without the proposed restrictions. They must keep abreast of developments in case law to carry out these tasks correctly.

It is the role of the best interests assessor to:

- suggest any conditions that might reduce the need for ongoing deprivation of liberty, or lessen the impact of the deprivation on the relevant person
- frame any conditions so that they apply to such matters that the managing authority can control (rather than general care planning)
- discuss any conditions in advance of setting them with the managing authority, to ensure that the managing authority can comply
- suggest a maximum length for which authorisation can be granted – this can be for up to a year, although many supervisory bodies are reluctant to authorise for such a long period (however, an authoriser can shorten the period from that suggested by the best interests assessor, but cannot lengthen it).

An independent person who looks at whether someone who lacks capacity and is in hospital or a care home is there for the right reasons, and whether it is in their best interests to stay there.