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.
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 firstname.lastname@example.org with ‘BIA consultation’ as the subject line.