Students with reasonable adjustments extra 5-7 working days.
Task
Critically evaluate and reflect upon the role of the Assessor in the Deprivation of Liberty Safeguards process around the assessment of capacity, restrictions and restraints and identify the challenges or ethical dilemmas this poses.
(3000 words)
Student Guidance
You will be provided two Dols case studies that you can refer to when applying your knowledge to practice if you don’t have any practice examples. You can use your shadowing experience or case law as well. You do not need to write in full here the information you used in your VIVA exam but you can refer to the case itself as this is an academic assignment.
You are required to critically evaluate the role of the Best Interest Assessor and provide both a rationale and justification for the decision and judgements made. Your discussion should include an evaluation of the ethical tensions and dilemmas that can be encountered in the work of a Best Interest Assessor. You can refer to any challenges that you think may arise for the assessor in the pending Liberty Protection Safeguards.
The decision making should be clear and decisions defensible referring to wider reading.
These are some of the broad areas that you should be considering. You may wish to include other areas that you have explored in your reading and practice. You do not have to address all of these areas and you should outline in your introduction the specific areas of focus for your assignment. You are NOT required to use the headings below as subheadings. This is just a guide to assist you plan your assignment.
- Case law and Legislation
The law and policy relevant to a BIA and the case that you shadowed/ or discussed, including the relevant articles of the Human Rights Act 1998, Mental Capacity Act 2005,2019, Mental Health legislation 1983,2007 and the subsequent codes of practice. The Care Act 2014 and Equality Act 2010. You will need to refer to relevant case law, case reviews and judgements made in court. You may wish to include the challenges that you think the new Liberty Protection Safeguards will bring (MCA 2019) or any concerns that you have at this point.
- Best Interest
You should refer to at least one Best Interest Assessment and the process followed by the BIA in the Dols process outlining the considerations of the concrete situation, the objective test (are they free to leave) and the subjective test (do they have mental capacity specific to the decision) and any other determinants. You should critically analyse whether the decision was in the person’s best interest or whether it is necessary and proportionate. You need to discuss in depth what constitutes acting in somebody’s Best Interest as outlined in the Mental Capacity Act 2005 Code of Practice and Dols Code of Practice and whether this is a useful task.
- DOLS process
You should discuss the assessment process including: The six assessments (See DOLS Code of Practice) and apply these to any practice examples that you may be using referring to any challenges for the BIA or other professionals/citizen/IMCA/RPR or family members.
You are required to discuss these briefly with regards to their relevance to the case study and analyse any issues that arose. Discuss how the tests are taken into account by the BIA. You need to explore the purpose of DOLS i.e. to prevent arbitrary detention. You need to critically reflect upon what constituted a deprivation, and how this relates to the wider definition of deprivation outlined in the DOLS CoP. Is DoLS, the best process in your opinion of establishing this? Were there any objections and how should they be dealt with?
- Mental Capacity
You should discuss and evaluate the principles of the MCA, especially any challenges for communication in order to establish capacity and undertake the functional test.
You need to address any practicable steps taken and the participation of the service user and relevant others. This should include some reference to relevant case law and the dilemmas that have been posed or the challenges that have been made to the Court of Protection with regards to this matter.
- Role of BIA
You should critically reflect upon the role of the Best Interest Assessor and the protocols and processes that need to be followed. Is there any validity in completing best interest assessments? You may want to include a discussion of the Best Interest Decision and the Check List and your views on “proportionality and necessity”.
Consider the relevance of the conditions needed to make care less restrictive and the challenges regarding other safeguarding concerns and care management. Your analysis should include evidence on how you consider issues to make the deprivation less restrictive, and the challenges this brings.
- Ethical Dilemmas.
What were the tensions between personal freedom and restrictions/restraints? Draw upon the differences and potential tensions in roles between a BIA assessor and your current role or that of the Supervisory body. Where there any problems in implementing the process? How has working through the COVID pandemic affected the process? Do you think good practice can still be maintained with remote working? Consider any 21 A challenges and rights to appeals and complaints.
What are your views for example around life sustaining treatment and advance decisions?
How do you ensure that you are following your professional codes of practice?
- Equality Issues
To what extent is the service user/citizen involved? What are the human rights implication Article 8, 9, and 14? Was there a need for advocacy or IMCA? Were there any specific issues for the managing or supervisory body? Are there any cultural considerations in implementing the safeguards? Any comment on unwise decision making and paternalistic care or the protection imperative. Do these safeguards have any positive impact on the life or care of the citizen?
- Liberty Protection Safeguards
Consider how the new pending safeguards will change the landscape of DOLS and assessments and your views and concerns at this point
Literature and referencing
Refer to appropriate case law and literature including journals to strengthen your discussion and reinforce the points you make throughout your assignment. All references and citations must be appropriately referenced using Harvard referencing. LPS information is published through the MCA amended 2019 and we are now awaiting the Code of Practice and the regulations in 2021.
