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“The world is full of obvious things which nobody by any chance ever observes.” (Sherlock Holmes in chapter 3 of The Hound of the Baskervilles by Arthur Conan Doyle, 1902)

Best Interests Assessors (BIAs) are experienced, knowledgeable health and social care professionals who investigate and explore people’s lives and care and provide a snapshot of how their care is, or could be, the least restrictive possible. The independent, yet critical, observer role they play can be invaluable in bringing insight into ways to increase a person’s ability to make choices about their life. Their ability to notice restrictive aspects of care that have been forgotten, or to identify paths for decision making that have not yet been explored, is a vital element of their value. Like consulting detectives, BIAs are not there to carry out the functions of other professionals. They are required to observe, scrutinise and offer fresh perspectives on a known situation. They gather evidence by analysing documents, consulting with people who know about the case, sifting through the evidence they find for meaning, and offering alternative solutions. Any actions as a result are handed back to those who have the continuing responsibility to make decisions about the person’s care.

The BIA role is a challenging one as it asks professionals to question the practice of their colleagues and suggest, at times, unpopular courses of action. This is vital or we risk the person continuing to be subject to ‘poor care … [that] has infiltrated the culture of the organisation’ (Graham and Cowley, 2015, p 24).

This chapter explores the role of the BIA as an independent and accountable professional within the DoLS. This chapter will enable you to understand what is expected of you as a BIA, recognise common challenges and identify solutions and sources of support and advice.

The chapter covers the following:

• What are a BIA’s duties, responsibilities and powers?

• Critiques of the DoLS and perceptions of the BIA role: ‘AMHP-lite’ or ‘highly regarded’?

• What has been the impact of the Cheshire West judgment?

• How do you maintain your independence and accountability?

• What are the different contexts for BIA practice?

• Local authority or independent BIA: what are the differences and challenges?

• How do you maintain the boundaries of the BIA role?

• What do supervisory bodies expect from BIAs?

• Key messages, knowledge review and further reading.

BIAs are qualified, experienced and independent health and social care professionals who carry out a specific and boundaried role within the DoLS. Their role is set out in the Codes of Practice for both the Mental Capacity Act 2005 and the DoLS amendment to that Act (2007) and has been developed through case law judgments. BIAs are employed by local authorities in England and Wales (and health boards in Wales), in their role as supervisory bodies under the DoLS, to assess people who may lack capacity to consent to their care and treatment in care homes and hospitals.

The BIA holds the power to decide whether a person with a mental disorder, whose decision-making, risk identification and management skills may be compromised, should have their right to liberty under Article 5 of the European Convention on Human Rights (ECHR) restricted for a period of time for their own safety.

This chapter focuses on the multi-professional nature of the Best Interests Assessor (BIA) role and the benefits and challenges of the range of professional backgrounds and contexts that BIA practice is drawn from and operates in. The chapter explores the following:

• What are the value and challenges of the BIA role as a multi-professional identity?

• What does social work bring to the BIA role?

• What are the links and overlaps between the Approved Mental Health Professional (AMHP) and BIA roles?

• What contributions do nurses and occupational therapists make that enrich the knowledge and skills available for BIA practice?

• Where are the psychologist BIAs?

• What other perspectives are relevant to BIA practice?

• Key messages, knowledge review and further reading.

BIAs must be qualified and registered as one of the four eligible professional groups (social work, occupational therapy, nursing and psychology). The following sections explore the reasons behind the decision to focus on these professions, the impact of different professional backgrounds on BIA practice, and the experiences of some of these professionals when training and developing their identity in the BIA role.

The reasoning behind the government decision to enable a broad range of professionals to be eligible to undertake the BIA role (see Chapter 2) can be viewed from several different positions. From a social policy perspective, not aligning the BIA to one professional background ensures that, at least in principle, there should not be a shortage of workers for local authorities to draw on. Moreover, professionals in the same four fields are also eligible to qualify as AMHPs, as noted in Mental Health (Approved Mental Health Professionals) (Approval) (England) Regulations 2008, Schedule 1, which can be seen as a pragmatic approach that maintains an equivalence between these roles.

Working together, interprofessional working, joint working and working in collaboration are phrases you will often hear in health and social care settings (Day, 2013). What does this mean for BIA practice and your work with the person, their relatives, carers, friends, professionals and others? The BIA has an important role in working with all the people involved with the person’s care, but simultaneously must act autonomously and independently. There is a clear requirement to understand your purpose as a BIA to reach an independent judgement but also to work collectively in gathering information that will inform your decision. The BIA role can, from our experience, feel like a lonely professional position to be in. You have a key function to fulfil and you have a real need to ensure that you have the required capability and professional interrelational boundaries to be effective in achieving your purpose as a BIA. Interprofessional working is key to effective BIA practice (Thomas et al, 2014), as you need to listen, respond and draw on the perspectives and knowledge of others, as well asserting your own judgement. As we discuss in Chapter 6 in relation to decision making, you need to be able to coordinate information and opinion that relates to the person you have been commissioned to assess.

During BIA assessments you are likely to work with:

• the person;

• interpreters (British Sign Language, Makaton and other languages);

• their family, friends and carers;

• the Relevant Person’s Representative (RPR);

• the managing authority/paid carers;

This chapter explores the various decisions that you will make during your DoLS assessment when acting as a BIA. BIAs make the following key decisions:

• whether the person is eligible for DoLS because they are over 18;

• whether there is no relevant power in place that refuses;

• whether the person has capacity to decide to consent to their care or treatment in a care home or hospital (sometimes called capacity for ‘residence decisions’);

• whether the person’s care arrangements do, or will, amount to a deprivation of their liberty;

• whether the care in place is necessary to prevent harm coming to them;

• whether the care arrangements are proportionate to the risk of the harm identified occurring;

• whether the care is in the person’s best interests including whether they object to the care and treatment;

• in cases where a recommendation is made to authorise deprivation of liberty, who should act as the Relevant Person’s Representative (RPR), what conditions apply to the managing authority (or what recommendations are made to the social worker or healthcare professionals involved) and for how long the DoLS should be authorised.

BIAs need to be clear about the scope and focus of the decisions they make. You are not being asked to make long-term care and treatment decisions. You are being asked to look at where the person is currently living, or where they will move to very soon, and whether they can decide to be there, consent to the restrictions that are in place there and whether these are appropriate to their needs or not.

As noted by Dalrymple and Burke (2006):

Legislation can be used to deny rights but we need to be aware of our role in minimizing the oppressive aspects of practice and the law and we must endeavour to maximize the rights to which all people are entitled. It is for that reason that we see the law as an instrument to protect people’s rights. It is a powerful instrument but it is one that we can control and we should therefore not become subservient to it. (p 290)

This chapter aims to explore the evidence base for BIA practice that is designed to enable you to reflect, refine and evidence your decision making in the context of risk, contested viewpoints and the varying contexts of the individuals you will be assessing. It tackles the following key areas:

• Defensible or defensive decision making: what really influences the decisions you make?

• Discrimination in decision making

• Bias in decision making

• Evidence-based decisions regarding people with dementia, learning disabilities, mental illness and acquired brain injury

• Key messages, knowledge review and further reading.

As BIAs we can demonstrate good practice by reflecting on how and why we reach the decisions that we do. That way, when challenged or asked to account for these decisions, we can feel confident in how these decisions were reached. However, we must always be aware of the possibility that conscious or unconscious biases can affect these decisions.

Many things can influence the decisions you make as a BIA. It could be your professional experience, which might lead you to consider in the light of past positive or negative experiences, or your professional knowledge, which might lead you to take more calculated risks based on your knowledge of the hazards associated with particular decisions. The crucial distinction is between defensible decisions (evidence-informed choices made with conscious knowledge of biases and circumstances) and defensive decisions (those made to protect yourself from criticism and censure).

When thinking about how you make decisions, it is vital to understand how you know that you have made a ‘good’ decision. There are various ways of evaluating your decision, whether it is how well it fits the requirements of your decision-making process or by measuring it against the outcome of that decision including whether any negative potential outcome was avoided.

This chapter explores some of the ethical dilemmas you may encounter in practice as a BIA and explores frameworks to help you make considered decisions in these situations. The chapter covers the following:

• Ethical dilemmas in BIA practice

• Theories of ethical decision making

• Ethical BIA decision making in action:

  • Carrying out assessments that comply with the Mental Capacity Act 2005 (MCA) within Deprivation of Liberty Safeguards (DoLS) timescales

  • Safeguarding best interests

• Key messages, knowledge review and further reading.

BIAs are asked to make decisions in a wide range of circumstances. Although the questions they must consider – about best interests and deprivation of liberty – are the same each time, the context for the person being assessed and the consideration needed to come to conclusions that respect the person’s right to autonomy and safety vary greatly. Many of these situations involve ethical dilemmas, without clear answers, that require BIAs to draw on a range of perspectives to come to a conclusion. Concluding on the ‘right’ thing to do in a range of situations takes skill. You need to identify an appropriate action, but also consider differing contexts that may make the same decision less ethical. Johns (2016) identifies the key question of ethics as follows:

Is something wrong because the action itself is simply wrong, or does the degree to which it is right or wrong depend on who carried out the action, in what circumstances, with what intent and for what purpose? (p 15)

This chapter focuses on the central task of recording your BIA assessment. It acknowledges how fundamental it is to all BIA practice to evidence the decisions you have made and how you made them. This chapter will help you to explore the key elements you need to record BIA assessments effectively and support defensible decision making, and covers the following areas:

• Completing Form 3 in a professional and legally compliant manner

• Keeping records of your consultation process

• Writing enough (but not too much) to cover all the requirements

• Considering previous and other assessments and relevant viewpoints

• Writing recommendations and conditions

• Getting the details right

• Writing for your audience

• Recording your decision not to authorise the deprivation of liberty

• Key messages, knowledge review and further reading.

The huge increase in DoLS assessments following the Cheshire West judgment (see Chapter 1) has led to efforts to streamline the DoLS assessment and recording processes. One of the first responses made by the UK government was to commission the Association of Directors of Adult Social Services (ADASS) to revise the forms used for the Deprivation of Liberty Safeguards in England (ADASS, 2015a), and revised forms for Wales followed from the Welsh Government (2015). This highlights the crucial role recording has in BIA practice. BIAs are handling an ever-higher number of assessments and there is an increasing concern that person-centred assessment practice will deteriorate under pressure to complete more assessments. To maintain standards in BIA recording, it is essential to keep records of decision making that are proportionate to the risks and complexities for the person involved.