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Barnsley Guidance & Best Interests FORM10
BOX D5 - The reasons for my opinion concerning whether or not the
proposed arrangements for the person’s care and/or treatment
amount to depriving them of their liberty in the hospital or care home
are:
Most BIA’s are describing;
- First name, (some use P, as does Judge Munby)
-
General case circumstances/history but it is not a life story!
-
Capacity Status - Diagnosis (& Types of Dementia 70% - Alzheimer's,
Frontal Lewy body, Korsakoffs, Mixed types, Multi-infarct/Vascular) and or
other diagnosis for instance – Supra Nuclear Palsy, Huntington’s,
Parkinson’s, Brain Injury, Learning Disability etc.
BIA’s should confirm their assessment of (P’s) capacity Only a person without
capacity can be deprived of their liberty, using a DoLS authorisation
-
Effects of both mental disorder and physical illness.
-
Care & treatment issues.
BIA’s should describe the concrete situation, taking into account
the "acid test",
is (P) subject to continuous supervision and control
AND
Is (P) free to leave.
Note continuous supervision and control does not require 'line of
sight' observation, if P needs assistance with activities of daily
living, and needs permission to go out etc, that would satisfy the
test.
Not free to leave, this does not require P to try to leave, the
question that Managing Authorities should ask is " if P tried to
leave would I stop them" if the answer is "yes" that satisfies the
acid test.
Remember both elements need to be present to constitute a DOL.
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Be aware that the following can no longer be considered in deciding if
P is subject to a DOL, and do not require any comment,
Factors which cannot be taken in account
1) the persons compliance or lack of objection
2) the relative normality of the placement
3) the reason or purpose behind a particular placement
Remember
The objective component of confinement in a particular
restricted place for a not negligible length of time (Storck+
Stanev ) Is relevant
And at para 46, Lady Hale says " a Gilded cage is still a cage"
And at para 57 “we should err on the side of caution in deciding
what constitutes a deprivation of liberty.
The factors identified in the following guidance from the code of
practice must be read subject to the decision in Cheshire West,
even if a factor is now no longer relevant to the question of whether
a deprivation is occurring, it is still likely to be relevant for the
purposes of identifying whether the package of care or treatment
is the least restrictive option available
BOX D5 continued
page 17 MCA/DOLS Code of Practice each of 7 question
1. Is restraint being used including sedation to admit a person to an
institution where the person is resisting admission? (why and how?)
2. Do staff exercise complete and effective control over the care and
movement of a person for a significant period. (how?)
3. Do staff exercise control over assessments, treatment, contacts and
residence. (how?)
4. A decision has been taken by an institution that the person will not
be released into the care of others or permitted to live elsewhere etc
(why?)
5. A request by a carer for a person to be discharged to their care is
refused (why?)
Shirley Atkinson and Kerry Kilburn September 2014
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6. The person is unable to maintain social contacts because of
restriction placed on their access to other people (why?)
7. The person loses autonomy because they are under continuous
supervision and control (how?).
Considering all these issues in Box D5 the BIA should confirm in their
opinion if this is a Deprivation of Liberty
BOX D6
If the proposed arrangements amount to depriving the person of their
liberty, the reasons for my opinion that they are, or are not, in the
person’s best interests are:
Is this deprivation of liberty in P’s best interests?
You should consider the following:
 The best interest principles as set out in s1(5) of the MCA
2005;
 The statutory best interests checklist as set of in s4 of the
MCA – 2005 and in Chapter 5 of the MCA-CoP;
 The additional factors in Para 4.61 of the DoLS CoP;
 The care and treatment issues;
 Are there any less restrictive alternatives?
 What is the issue of ‘magnetic importance’?
 What are the viable alternatives?
 Do P’s best interests conflict with another’s best interests?
 Are there specific cultural issues?
 What are the views of the Mental Health Assessor?
 Refer to the Best Interests care plan;
 Are there any safeguarding issues?
 P’s mental capacity for decision making;
 P’s wishes and feelings;
 P’s family and carers wishes and feelings.
For more complex and borderline cases BIA’s should consider the
Balance check list evidence approach as advocated by Neil Allen
Barrister In February 2012
BIA’s should record who they have consulted and record their views!
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BOX D7 If the proposed arrangements amount to depriving the
person of their liberty, the reasons for my opinion that they are, or are
not, necessary in order to prevent harm to the person are:
It was initially found the BIA’s were perhaps not fully reading the question
answering the DOLS issue but not describing how harm would be
prevented.
Please describe your opinion of ways that harm would be prevented, which
may include;

Treatment (what would happen without treatment?) + List of
Treatments list of outcomes.

Condition management (describe deterioration?)

Mobility issues ( falls and risk etc!)

Continence (outcomes if not maintained?)

Administration of medication (outcomes if the person cannot
maintain?)

Food and fluid needs etc. (outcomes if the person cannot/does
not
maintain?)

Personal Care/hygiene (outcomes if the person cannot
maintain?)

Any other issues?
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BOX D8 If the proposed arrangements amount to depriving the
person of their liberty, the reasons for my opinion that they are, or are
not, a proportionate response to the likelihood of the person
otherwise suffering harm and the seriousness of that harm are:
Lord Sir James Mumby at YAMHP Conference in Leeds on 10th Feb 2012
was clear in his view that the first issue to be addressed is Article 8 Rights
to Private & Family Life and then Article 5 (Right to Liberty (Personal
Freedom)
Article 8 is of particular interest to BIA’s as it confers positive rights
on
the citizen and imposes on the state positive duties and obligations
both substantive and procedural. The states duty therefore is to
respect private and family life and take positive steps not to do so!
There is increasing evidence that BIA’s are now describing why
private
and family life is being affected and the need for a DOL?

Article 5 Right to Liberty (Personal Freedom)
BIA’s are now offering a description of their opinion that any
decisions are appropriate and a necessary response in each case
(i.e. DOLS being appropriate to prevent harm to the person and
is an appropriate response to the likelihood and seriousness of that
harm! BIA’s should describe why?
“PLEASE NOTE!!!!
In the London Borough of Hillingdon & Neary case Judge Jackson stated
that assessors act as individual professionals and are personally
accountable for their decisions & best interests should be seen as a
corner stone of the protection that the DOL safeguards offer to people
facing a deprivation. He referred to the urgent and first standard
authorisation as “flawed” a further period of assessment the best interest’s
assessment “was an even flimsier document” and was critical of other
periods of best interest assessments.
Judge Jackson in Blackburn with Darwen Borough Council Dec 2011
confirmed that “Authorisations must be founded on sound
assessments”
If BIA’s follow this guidance your assessments should be sound and
neither flawed or flimsy
Shirley Atkinson and Kerry Kilburn September 2014