W M R D L G
West Midlands Regional DoLS Leads Group
Guidance for the completion of Form 10’s
The following guidance has been developed collectively by the WMRDLG; it has been tested
in discussion groups at Regional BIA Update training events 2012 and had input/guidance
from Mark Barnett at Browne Jacobson Solicitors.
Any best interests assessment completed in the West Midlands area should follow the
guidance in this checklist and should adhere to the following general principles.
It should be factual; all information contained in the report should be related to the
deprivation of liberty. There should be professional ownership of the report by the BIA and all
detail should be contained in one report with no subsidiary reports or evidence recorded
elsewhere.
The BIA should use West Midlands Form 10a or 10b.
In line with the principles of good practice endorsed across the West Midlands in the event of
a negative eligibility assessment the BIA could wait until the MHA assessment has been
undertaken before completing Form 10.
If the MHA assessment does not result in detention under the MHA the BIA should complete
Form 10a, giving opinion about Deprivation of Liberty in D1 if there is a deprivation of liberty
occurring the BIA should indicate an unauthorised deprivation on Form 10 and generate an
associated safeguarding referral. The BIA should provide clear directions about how the
unauthorised DOL can be resolved in box E3.
GENERAL GUIDANCE NOTES
Key Content
Description
C3 background
information
Background and historical information relating to the current or
potential deprivation of liberty. This sets the context, why is the
person in that particular care home for example, why do they need
residential care, what else has been tried, what else has failed.
BIA’s should use this section to record the person’s views on the
placement. Use their own words where possible. There should be
emphasis on whether they perceive themselves to be confined and to
any objections they are expressing.
The views of others including those consulted should be recorded in
the report. Record the views relating to the deprivation and to best
interests. Record the views of the MH assessor in terms of the impact
of the deprivation show how you have considered this Record the
C4 views of the
relevant person
C5 Views of others
including evidence of
documents seen with
dates
Lorraine Currie WMRDLG Updated June 2013
D1 The objective and
subjective elements
should be evidenced
with a brief statement
of why the deprivation
is imputable to the
state.
documents used in the assessment e.g. current care plans, medical
notes, daily record sheets, risk assessments etc. It is important to
identify any deficits in recording and comment on them later.
The Objective element: Evidence of confinement in a particular
restricted space over a not negligible period of time. Consider the
concrete situation of the person including type, duration, effects and
manner of implementation of the measures in question. Refer to the
descriptors in the Code of Practice and consider relevant case law in
particular – objections of the person, relative normality, relative
comparator and to a very limited degree the purpose for the
placement
Subjective: A lack of valid consent to be in the accommodation to
receive care and/or treatment. This will have been evidenced in the
Mental Capacity assessment
There should be a clear conclusion on deprivation
This should acknowledge the professional standing of the BIA as an
Independent Practitioner “In my professional opinion” for example
D2 The MCA section
four best interests
principles should be
evidenced
You should consider the provisions of section 4 of the Mental
Capacity Act 2005, the additional factors referred to in paragraph
4.61 of the deprivation of liberty safeguards Code of Practice and all
other relevant circumstances. Remember that the purpose of the
person’s deprivation of liberty must be to give them care or treatment.
You must consider whether any care or treatment the person needs
can be provided effectively in a way that is less restrictive of their
rights and freedom of action. Including which options have been tried
and considered. You should provide evidence of the options
considered. What else has been explored and why have or are you
ruling out other options. Make it clear the alternatives that have been
considered in terms of placement as well as adjustments to the care
plan.
The statutory checklist should be referenced or be apparent in the
text: http://www.legislation.gov.uk/ukpga/2005/9/section/4
In line with best practice this should consider not just health related
matters but emotional, social and psychological wellbeing also.
Specific issues of culture need to be considered throughout.
There should be a burden and benefits analysis (pro’s and con’s) of
each available option with additional weight given to different factors
as appropriate, to determine best interests. This will be in the form of
a balance sheet.
Lorraine Currie WMRDLG Updated June 2013
D3 What is the harm
that may occur?
Include particulars of the harm that will be avoided by depriving the
person of their liberty. How likely is it? Give evidence, examples and
dates where possible. This should include severity of any actual harm
and corroboration of any anecdotal evidence.
D4 Why is deprivation
a proportionate
response to the
likelihood and risk of
harm?
Relate the response to the risk of harm, and the seriousness of the
harm, why therefore is a deprivation of liberty proportionate. Why is
the current care and treatment the least restrictive option?
F1 Length of time for
the deprivation
When setting a time limit why have you chosen that time limit and
what of anything needs to be achieved within that time limit. Give
your rationale.
When setting conditions ensure they are not care planning issues.
Consider whether it would be needed even if the person was not
deprived of their liberty.
If the answer is yes, then it's a care planning issue.
If possible require evidence to be provided of adherence with the
conditions set. Remember to tick the box to be consulted again if
conditions are changed. Any conditions should be negotiated with
and achievable by the MA.
F3 Only set
appropriate conditions
What else has been explored and why have or are you ruling out
other options. Make it clear the alternatives that have been
considered in terms of placement as well as adjustments to the care
plan.
Most SB’s are happy for BIA’s to use Part G to record observations
on care planning issues.
I Recommendations,
observations or actions
for the Care Manager
Throughout the report
there should be
evidence of current
case law principles
Use this section to highlight issues from your report which are about
care management issues. Things which need to be done or
observations which may impact on the care planning process.
An up to date knowledge of relevant case law should be apparent
from the report. The general principles of key cases should be
applied where appropriate. SB’s will vary as to whether they
require BIA’s to reference case law within the report.
Lorraine Currie WMRDLG Updated June 2013