Carrying out a best interests assessment is a complex but vital task. Its purpose is to decide whether a deprivation of liberty is happening or may happen, and if it is whether this is in the best interests of the person affected.
In a comprehensive guide for Community Care Inform Adults, Javeda Jafri and Rita Panayides provide a clear account of what a best interests assessment must include, deciding whether a deprivation of liberty is taking place, and how to use the balance sheet approach. Jafri and Panayides are best interests assessors (BIAs), trainers in the Mental Capacity Act (MCA) 2005 and Deprivation of Liberty Safeguards (DoLS), and lecturers on the qualifying course for BIAs at the University of Hertfordshire.
Inform Adults subscribers can read the full guide to report writing for best interest assessors, and access other content on our deprivation of liberty knowledge and practice hub. These are a few key tips from the longer guide.
The BIA report
The first, and arguably, the most important advice given to anyone writing a report is to be aware of who your audience will be. The DoLS code of practice (paragraph 5.7) and paragraph 57 of schedule A1 to the MCA says that the supervisory body must give a copy of the consequent authorisation to the managing authority (hospital or care home); the relevant person; the relevant person’s representative (RPR); any independent mental capacity advocate (IMCA) involved; and every interested person named by the BIA as someone who they consulted in carrying out their assessment. And, of course, if there was a legal challenge your report might be read by lawyers or judges.
So let us consider these different people and how the BIA report can reflect their different needs.
The BIA report is always made available to the individual it is about (the person at the heart of DoLS) with an instruction to the care home or hospital that as soon as possible and practical after the authorisation is given they must ensure they take all practicable steps to ensure that the relevant person understands the effect of the authorisation and their rights around it (DoLS code of practice, paragraph 5.8/paragraph 59 of schedule A1 to the MCA).
The report is also given to the person’s representative and other relatives who have been consulted, who may have already experienced suffering and loss as a result of their relative’s illness and “detention”. You must consider how you represent the person’s situation in a way that demonstrates respect for their dignity.
Reports should be written in plain English, avoiding unnecessary “professional speak” and in particular avoiding language that may be dehumanising or cause additional distress to the person or their family. We have come across reports that have described a person as only able to respond with “gibberish” or “gobbledygook”. How much more respectful to say, for example: “Staff told me that P has difficulties expressing himself and I found his replies were not related to the questions I asked or the information I tried to give him.”
Another report we saw went into unnecessary detail about a person’s sexually disinhibited behaviour, despite knowing that this report would be copied to his daughter. The behaviour was likely to be the result of his frontotemporal dementia and was very relevant to the assessment as it was the cause of some of the restrictions. However, it was unnecessary to go into such excessive detail as this undermined his dignity and had the potential to distress his daughter while adding nothing to the report itself.
The report will be scrutinised by the supervisory body and the DoLS signatory, who is usually someone at senior management level in the local authority. The report must be evidence-based so the supervisory body and signatory are clear that the deprivation of liberty is both necessary and proportionate. For example, if you are going to state that there is a risk of falls, and this is one of the harms to be avoided, you must provide evidence to back up your opinion that this is a likely harm, with evidence of how often the person has fallen and the impact that this has had on them.
It may be useful to provide a snapshot of a fixed period such as: “Jack has fallen eight times in the last week, sustaining various injuries including an injury to his head which resulted in hospital admission on 12/01/16.”
Remember to always identify the source/s of information (for example, the incident report of 12/01/16, and the dated hospital discharge summary).
Most supervisory bodies are now using the DoLS forms issued in March 2015 by the Association of Directors of Adult Social Services (Adass). Form 3 combines the age, mental capacity, no refusals and best interests assessments as well as the selection of representative. Here, we are only looking at the best interests assessment. We have followed the headings used on DoLS form 3 because although these forms are not statutory, it is the format required by most supervisory bodies and therefore likely to be the most useful.