Social Work England is seeking views on proposed standards it will use to approve and monitor best interests assessor (BIA) training courses.
It has launched the consultation in the wake of the government’s decision in April to delay introducing the Liberty Protection Safeguards (LPS) – its planned replacement for the Deprivation of Liberty Safeguards (DoLS) – beyond the next election, due in 2024.
While Social Work England was given responsibility for setting standards for, and approving, BIA courses at its inception in December 2019, it held off on doing so because the LPS – which would have abolished the role – was then expected to have been in place by the end of 2020.
Existing BIA courses were allowed to continue, with the regulator ready to approve any new programmes under previous standards set in 2009.
Drop in course supply and demand
However, no new courses have been set up since 2019, said Social Work England.
At the same time, DoLS leaders have warned that many existing programmes have stopped delivering training and demand from practitioners to train has fallen in anticipation of the LPS’s implementation, despite ongoingly high caseloads.
One particular deterrent was the fact that BIAs with less than a year’s experience at the time of the switchover could not be fast-tracked into becoming approved mental capacity professionals (AMCP), the nearest equivalent role under LPS. Instead, they would have to undergo full training as AMCPs.
However, ministers’ decision to shelve LPS, following multiple delays, and with no planned date for implementation, means the BIA role will be in place for the foreseeable future.
This has increased the likelihood of training providers seeking approval for courses to increase the supply of BIAs, said Social Work England, in explaining its decision to develop standards.
About the BIA role
BIAs’ role is to co-ordinate the DoLS assessment process and carry out the best interests assessments. This involves judging whether the person would be deprived of their liberty under the proposed arrangement and, if so, whether this is would be in their best interests, necessary to protect them from harm and proportionate to the severity and likelihood of that harm.
The vast majority of BIAs are social workers, though the role can also be carried out by nurses, occupational therapists or psychologists, with all trainees requiring two years’ post-qualifying experience in their chosen profession.
Training courses generally take five to six days, and practitioners must also carry out refresher training each year.
As the supervisory body responsible for authorising DoLS applications in England, it is local authorities’ responsibility to appoint BIAs.
According to research for Social Work England published in 2021, most assessors are employed by councils, though some work for mental health trusts and others carry out the role on an independent basis.
Most employed BIAs undertake the role alongside a substantive position, found the Social Work England-commissioned study.
Increased demand for BIA training
The news comes with evidence of increased demand for BIA training in the light of the government’s decision to shelve LPS, and in the context of annual DoLS applications reaching a new record of 300,000 in 2022-23, up 11% on the year before.
Social care consultant Lorraine Currie, former chair of the national DoLS leads group, said that some authorities that had not commissioned BIA training for several years were now planning to put practitioners onto courses.
Meanwhile, one course leader said they had received significantly more enquiries about BIA training since LPS’s postponement.
However, Mike Lyne, MCA 2005 programme lead at Bournemouth University, said demand for training had been relatively consistent in recent years.
“We have undertaken eight or nine cohorts in each of the last two academic years and we have dates for delivery set for the next academic year currently running as far as March 2024,” he said.
BIA requirements
Social Work England’s proposed standards cover admissions, course management and quality, the learning environment, curriculum assessment and supporting students.
It has proposed that courses use the six key competencies set by the then College of Social Work in 2013 as the basis for their curricula and the learning outcomes they set for trainees, on the grounds that they provide “helpful, robust and tested guidance”. They are:
- The ability to apply in practice, and maintain knowledge of, relevant legal and policy frameworks, including DoLS, the wider Mental Capacity Act 2005, the Mental Health Act 1983 and relevant case law.
- The ability to work in a manner congruent with the presumption of capacity
- The ability to take all practical steps to help someone make a decision, including by using range of approaches to sustain engagement with people whose capacity and ability to communicate may fluctuate, or be very limited.
- The ability to balance a person’s right to autonomy and self-determination with their right to safety, and respond proportionately
- The ability to make informed, independent best interest decisions within the context of a Deprivation of Liberty Safeguards (DoLS) assessment. This includes recording assessments to a high professional standard likely to withstand legal scrutiny and demonstrating the ability to analyse and evaluate complex information to provide evidence for decision making.
- The ability to effectively assess risk in complex situations, and use analysis to make proportionate decisions.
Lyne welcomed the use of the College competencies, saying that his course still used them to set learning outcomes for students, which Social Work England said was widespread across training providers.
Case law on capacity test
Currie, who also teaches on a BIA programme, said they were largely suitable, though added that their reference to BIAs needing to understand the “formal two-stage assessment of capacity” was outdated.
This wording had been taken to refer to the practice of assessors determining first whether the person has an impairment of the mind or brain (the diagnostic test) before then judging if, as a consequence, they are unable to make the decision in question (the functional test), as set out in the MCA code of practice, published in 2007.
However, since the College standards were established, case law has established that practitioners should follow a three-stage process starting with the functional test, followed by the diagnostic test, and then assessing whether the inability to make the decision is because of the impairment.
Practice observation requirement
Currie also questioned how training providers would be able to fulfil requirements to ensure trainees undertook a minimum of two practice observations during their courses, in the case of self-funding practitioners training to be independent BIAs.
“I think we need providers to respond to the consultation [on this point],” she said. “Courses vary so much in how and even whether they currently expect some form of shadowing opportunity.
“Often, they expect the student to arrange this, which is easy if you are employed by a council. It’s often difficult for independents and I guess the universities would have to make this demand of the [relevant] council in partnership.”
Currie said there was still significant demand from councils for independent BIAs to carry out assessments.
This contrasts with the government’s intention for LPS, which was for AMCPs to – normally – be employed by the relevant body responsible for authorising the deprivation of liberty.
Course length concerns
Existing BIAs reported concerns that the length of training courses – generally five to six days – was insufficient to prepare them for the role, in research for Social Work England in 2021.
The government had intended that AMCP training be longer and more on a par with the six-month length of approved mental health professional courses.
While the Social Work England standards for BIA courses do not stipulate a minimum length, they state that providers should “ensure that the number of hours spent in structured academic learning under the direction of an educator is sufficient to ensure that students meet the required level of competence”.
The consultation ends on 26 October 2023. You can respond by answering an online feedback survey or emailing consultation.responses@socialworkengland.org.uk with ‘BIA consultation’ as the subject line.
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A few years ago my employer put my on a BIA course.
It was a four day course via teams / zoom ran by a well known provider who linked in with a local university.
Four days of PowerPoints.
Two essays required.
Coincidentally I failed the essays as it’s a highly complicated area and I had little experience with dols type work. I recall asking for support from the provider. Got nothing. So I asked for support from the university, again got nothing. Later withdrew from the course.
Complete waste of time, but hey the provider got paid 2k from my employer for speeding reading a presentation via teams.
I would consider a hybrid DoLs / LPS approach that supports action towards LPS without changing the existing systems.
Question 8. What changes could we make to ensure the link between the two, and the reason for the inclusion of the 6 capabilities, is sufficiently robust and can inform course design and delivery?
Standard 4 The ability to balance a person’s right to autonomy and self-determination with their right to safety, and respond proportionately; and
Standard 6 The ability to effectively assess risk in complex situations, and use analysis to make proportionate decisions
Case law has identified the need to weight the balance heavily on what the person would have wanted if capacitated and the fact that ‘no one wants to live a safe but miserable life’. The wording ‘balance’ is not correct. Whilst there is a need to effectively assess risk and make proportionate decisions, having two standards focus upon risk and risk assessment appears disproportionate. Standard 4 should perhaps be changed to ‘The ability to determine the identity of the person in the little things that they do; recognise how identity informs their actions; what makes them feel safe and happy; and apply risk as a proportionate mitigating factor.
Question 9 What updates or amendments would you suggest that we make to the 6 capabilities in Annex 1, and why?
Detained: Examining copies of relevant assessments or care plans drawn up by the Local Authority; and
Examining copies of any relevant assessment or care plans drawn up by the managing authority; and
Consulting with the managing authority to understand how any care plans are being implemented.
The Best Interest Assessor must then apply the acid test to consider whether the care plan, and how it is being implemented constitutes a detention, and therefore a deprivation of liberty
Perhaps could be changed to something like ‘detained’:
Social Workers as part of their assessment and review process examine copies of relevant assessments or care plans drawn up by care providers in line with legislation, including regulatory standards pertaining to the person.
Consult with care providers to understand the implementation of those plans
Ensure that the persons feeling of happiness and safety is paramount, whilst applying risk as a mitigating factor when considering the proportionate application of restrictions and restraints (Is this the least restrictive intervention).
Consider safeguarding responses required in relation to provider actions considered overly restrictive, or disproportionate application of restraint.
Information is forwarded to the best interest assessor who must consider the action that they need to take to apply the acid test, ensure that liberty is protected and to summarise the evidence toward the appropriate application of detention.
What this means in practice:
A hybrid cross version of DoLs and LPS could be used to support local authorities using exsisting systems and processes and reducing duplication.
All provider agencies providing residential care and support must comply with regulatory standards (https://www.legislation.gov.uk/ukdsi/2014/9780111117613/part/3/crossheading/fundamental-standards).
In a time when we need to think for new ways to prevent duplication and to raise standards using these very relevant regulations as a base line is essential. Supported living has changed significantly since the introduction of regulation and now supports people with complex needs. Domiciliary care ensures care, support and safeguarding access to some of the most vulnerable people within society who often do not see other people.
Social services commission the vast majority of these services and every social worker is required to ensure that the provider is able to meet these standards in line with their assessment and care and support plan and every year the social worker reviews these standards in line with their care and support plan.
The social worker / care provider relationship could be mutually beneficial in monitoring and raising standards. The provider supplies information in line with regulations 4 – 20a, E.g Reg 9 the requirement to assess need, identify what outcomes the person wants, consider wishes and consult with relevant parties. Reg 11 the need to understand the identity and the little things about the person and to act in line with MCA. Regulation 13 safeguarding the person effectively and regulation 12 risk assessment and safety matters. All whilst considering reg 10 dignity and respect. The provider service doesn’t have to conduct capacity assessments for court purposes but must demonstrate reasonable belief capacity assessments (Identified in MCA codes of practice) which in most day to day situations is sufficient:
‘MCA 4.68 Carers (whether family carers or other carers) and care workers do not have to be experts in assessing capacity in relation to day to day decisions. But to have protection from liability when providing care or treatment (see chapter 6), they must have a ‘reasonable belief’ that the person they care for lacks capacity to make relevant decisions about their care or treatment (section 5 (1’).
The codes of practice states that the care provider must justify this if questioned. There is also a requirement for the care and support plan to facilitate the persons understanding of what decisions they can make for themselves and who makes what decisions for them in their best interests:
‘MCA codes of practice S6.25 The preparation of a care plan should always include an assessment of the person’s capacity to consent to the actions covered by the care plan, and confirm that those actions are agreed to be in the person’s best interests. Healthcare and social care staff may then be able to assume that any actions they take under the care plan are in the person’s best interests, and therefore receive protection from liability under section 5. But a person’s capacity and best interests must still be reviewed regularly’.
Regulation 11 (1) states:
When a person is asked for their consent, information about the proposed care and treatment must be provided in a way that they can understand. This should include information about the risks, complications and any alternatives. A person with the necessary knowledge and understanding of the care and treatment should provide this information so that they can answer any questions about it to help the person consent to it.
The codes describe being delivered and communicated in a manner that the persons understanding can be maximised, and:
Providers must make sure that staff who obtain the consent of people who use the service are familiar with the principles and codes of conduct associated with the Mental Capacity Act 2005, and are able to apply those when appropriate, for any of the people they are caring for.
Social Workers and care providers have a mutually beneficial reasons for assessing needs and reviewing needs together, this ensures that all needs are identified and funding is available to meet need and reduces the possibility of later safeguarding concerns, caused by people being placed in an environment that is not conducive with their expectations, life and lifestyle, personal preference and prevents people being slotted into household vacancies.
If every social worker used this as evidence towards DoLs, they would be keen to ensure standards are met by the provider; to make sure that there is good evidence towards their DoLs and this in turn would drive up standards and ensure practice with the individual is in line with base line regulatory standards. This should be happening anyway, but formalising it as an aspect of practice would mean less work for the social worker(No additional assessment to complete) and would combine the review of care and the review of DoLs as the whole care package would be reviewed.
Any concerns that the social worker has would be monitored through CQC, addressed through safeguarding visits (Excessive restriction and restraint) and oversight, sharing of information, multi-agency consideration (If required) and by utilising existing systems. For supported living and domiciliary care the reasonable belief capacity assessments should be explored as proportionate during assessment and review and summarised qualifying the overall DoLs decision under the 6 capabilities.
The best interest assessor would be allocated as an expert in matters relating to Human Rights Act Article 5 and MCA / DoLs as part of the safeguarding process if required. The best interest assessor has the majority of documentation required and does not need to reassess, but can add to the assessment with considerations and rationale. This evidence can be provided as evidence for court purposes if required and a copy forwarded to CQC as a desk top inspection.
The same system could be used for residential and hospital care with COP 3 capacity assessment completed (Rather than the summary of reasonable belief capacity assessment) using proportionate face to face and desk top assessment along with existing evidence from the provider.