The primary role of a Best Interest Assessor (BIA) is to complete the Mental Capacity Assessment and Best Interest Assessment steps within the DoLS process. These are recorded as part of Form 3.
They can also be commissioned by the Supervisory Body to complete ‘Age’ and ‘No Refusals’ steps if required.
Mental Capacity Assessment
Under DoLS, the specific decision to be addressed by the BIA is always:
- Can the relevant person consent to their care and treatment at X?
[Where X is the given or proposed nursing/care home or hospital ward]
Prior to assessment, the BIA will need to ensure that all appropriate preparations have been made to ensure the correct and smooth running of the assessment. As part of this, the BIA will need to:
- Establish context relevant to the decision being addressed by consulting relevant individuals and reviewing care plans.
- Ask staff the best time of day to engage with the relevant person to optimise capacity.
- Identify and plan for accessibility requirements, such as hearing, vision, communication and understanding.
- The BIA may also need to produce suitable resources to support accessibility.
- Coordinate interpreters as required.
- Speak with the Independent Mental Capacity Advocate (IMCA), if an IMCA has been assigned to the case.
- Identify the initial relevant questions to guide the assessment interview
This is not an exhaustive list, but is a useful starting point to help you prepare. We have a range of blogs around supporting capacity, including case studies, blogs on augmentative communication, the use of visual aids and much more besides.
The assessment should always start with an introduction in which the BIA introduces themselves and explains the purpose of the assessment and why it is being carried out. This helps to ensure proper informed consent, and also gives the relevant person important context in line with Court of Protection direction.
Following introductions, the assessment itself will then take place. This is usually in the form of an interview, with questions and method of engagement adapted to meet the needs of the individual as required – adapting to their needs and ensuring that they are appropriately supported throughout.
At this stage it is important to note Principle 3 of the Mental Capacity Act, which states that individuals have the right to make what others may perceive to be an ‘unwise’ decision. The key here is that the individual is able to make an informed decision – whether or not the BIA (or anyone else) deems it to be the ‘correct’ decision.
The assessor should therefore continue to ask questions of the individual until they are satisfied of the outcome and the Functional step of the assessment. From which the Diagnostic and Causative Nexus are then proceed.
Following this step, the assessment should then be recorded appropriately within Form 3, ensuring that sufficient detail is included that would enable a third party reader to understand the individual’s presentation, views and wishes, as well as the professional’s rationale for their decision.
Best Interest Assessment
If the relevant person has been determined to lack capacity in the above assessment, the next step for the BIA is to complete the Best Interest Assessment. This needs due professional care and consideration, and should not be taken lightly.
The assessment must meet four criteria:
- The relevant person is, or will be, deprived of their liberty within a care/nursing home or hospital ward.
- Applying the Acid Test (Objective Element), as laid out in the Cheshire West Judgment.
- It is in the Relevant Person’s Best Interest to be deprived of their liberty at this location.
- Ensuring the relevant person’s wishes, beliefs, values and feelings are kept at the heart of this assessment process throughout.
- The BIA should also complete a Best Interest Checklist, applying a Balance Sheet analysis of viable options available. Within which, the assessor should consult with relevant persons as far as reasonably and practicably possible.
- It is necessary to deprive the relevant person of their liberty to prevent them from harm.
- Guzzardi Analysis (Guzzardi v Italy, 1980) of all restrictions and restraints in light of their type, duration, effect, manner and degree/intensity.
- This deprivation of liberty is proportionate response to the risks present.
- Taking account of all information gathered above, including other viable options in light of said information.
In accordance with the Code of Practice for DoLS (2008), the BIA is further responsible for a number of vital proposals for the SB to consider:
- Suitable Relevant Person’s Representative that meet criteria, taking account of the Relevant Person’s thoughts, wishes and feelings around this matter.
- Any DoLS related conditions for the Managing Authority to reduce the impact of their restrictions and restraints in place.
- The duration for the authorisation, in light of the Relevant Person’s circumstances.
All of which must be recorded with rational within the Form 3.
Useful BIA resources
There are a number of useful resources relating to the BIA role and how it works in practice. We have included a selection of sources below:
- DOLS and you (easy read) – essential
- Recognised BIA training locations
- DoLS forms (please note regional updates are available, such as in the West Midlands)
- BIA capabilities
- BIA handbook
- Local gov summary and links
- Alzheimer’s useful links
- Social care collection materials from NHS digital
- CQC state of care report 2022-2023 – including DoLS
For further support with the Mental Capacity Act, including training and consultancy, and support with BIA, please do get in touch.