Best Interest Assessment - Case Study Example

Best Interest Assessment Best interest assessment Introduction The essay critically analyses concepts ofdeprivation of liberty safeguard process with particular regard to the role of the Best Interest Assessor. It considers domestic case law, jurisprudence from the European Court of Human Rights, and United Kingdom national legislation. It first examines concepts of deprivation of liberty and how it should be understood concerning available law, local legislation and case rulings. It then details deprivation of liberty safeguard (DoLS) process with an emphasis on the role of Best Interest Assessor. Finally, it uses concepts derived from the first to parts together with relevant legislations, case laws, and rulings to critically analyse the case study and give recommendations on the best course of action. Article 5(1) of the European Court of Human Rights provides that no individual should be deprived of their liberty except in cases it recommends or in accordance with the law. Although an exact definition of Deprivation of Liberty does not exist, the ruling by ECHR on the Strasbourg case of HL v United Kingdom1 set the precedent and was the bedrock for the change in legislation, which established deprivation of liberty safeguard process. In the case, Mr HL was not capable of making decisions concerning his treatment and residence. Mr HL was taken to the hospital for examination and processing. While in hospital there was no contact between Mr HL and his family, his primary caregiver was temporally prohibited from seeing him. ECHR ruled that the Mr HL’s liberty was deprived. Besides, his detention was not within the law and breached Articles 5 (4) and 5 (1) of European Convention on Human Rights (Mole, 2010). The government of the United Kingdom introduced Deprivation of Liberty Safeguards to make sure individuals who lack capacity or who are placed in a situation that may amount to deprivation of their liberty are protected by the law and detention must comply with above said articles of the European Convention on Human Rights (Bogg, 2010). On19th of March 2014 the Supreme Court of the United Kingdom made a ruling on two cases P v Cheshire West and Chester Council 2and P and Q v Surrey County Council.3 The ruling made a clarification on the test of individuals who are above 18 and lack mental capacity to arrive at an informed decision on whether to be accommodated in a care home or care giving institutions. The test determines whether a resident or patient has mental capacity to make correct decisions, whether they are not free to leave and whether staff is afforded adequate and complete control (Bartlett, 2013). Mental capacity is a person’s ability to make up their mind or decide on their own. If this ability is hindered in any way due to some form of impairment of the brain or mind because of injury, illness, age, mental health problems or disability then individuals are mentally incapacitated. In Ann’s it is evident that Ann is mentally incapable of taking care of herself. The death of her husband, erratic behaviours, mood swings, and aggressiveness towards family & friends compounded by excessive alcohol consumption is posing a danger to herself, her family, and friends. Besides, it has significantly demised her capacity to make objective and sound decisions; thus, hampering her decision-making ability and rendering her mentally incapacitated. In several essays on mental capacity and illness, research has found that there is less life satisfaction and more adverse effect on caregivers, families and service users (Jones, 2008). Mental capacity act and DoLS are used for individuals in care facilities who do not have the mental capacity to approve actions made towards there the treatment or care. In addition, individuals require the deprivation of their liberty that conforms to the requirements of article five of the European Convention on Human Rights, which is in the best interest of the individual and provide protection from harm. Sections 4B and 4A and Schedules 1A and A1 are the main legislation relating to mental capacity and DoLS. There are several persons in the society affected by the Deprivation of Liberty safeguards such as mental health doctors, independents mental capacity advocates (IMCA), best interest assessors (BIA), and relevant persons representatives (RPR); all have a role to play (Bartlett, 2007). There are several areas within the context of DoLS process that Best Interest Assessors (BST) need to familiarise. The assessor must possess ability to maintain knowledge and apply in practice of relevant policy and legal frameworks based o DoLS, mental capacity legislation in place and any local and national policy guidance. The assessor should possess ability to use an approach befitting the presumption of capacity and have an understanding of fundamental rights of choice, liberty, autonomy, self-determination and privacy. The assessor should possess ability to find a balance between an individual’s right to self-determination and independence with their right to safety and act proportionately (Karban, 2011). The assessor must possess capacity to take all the necessary and practice steps needed to help a patient make the correct decision because mental incapacity can have an effect on an individual’s decision-making ability. The assessor must possess ability and capacity to make independent, informed and best interest decisions that fall within the framework of DoLS assessment. The assessor must possess ability to critically and correctly evaluate risks especially in complex situations and utilise the analysis to come up with proportionate and appropriate decisions (Great Britain, 2008). The assessment procedure The assessment must be carried out under principles and guidelines of the Mental Capacity Act of 2005, and the Six Assessments of DoLS is a critical component of this test. DoLS are only necessary and become relevant when a person lacks the mental capacity to make informed decisions. In Ann’s case, BIS must conduct DoLS to ensure the decision made balances between her right to self-determination and autonomy and her right to safety. Age assessment The assessment is carried out to establish whether the patient is over 18 because DoLS only applies to persons that are over the age of 18 years. In Ann’s she is 64 years, which is above 18 years. No refusals assessment It establishes whether an individual or a person in authority to decide on a patient’s behalf has rejected the deprivation of liberty. Authorization cannot be granted if it conflicts with an applicable and valid decision made in advance that denies the particular treatment or care. The decision arrived by an attorney that is under a Lasting Power of Attorney or he decision of a deputy appointed by the court. In Ann’s case, she has always expressed a desire of never staying in a care home. Ann’s sentiments should be considered when making the final decision (Great Britain, 2007). Mental capacity assessment The evaluation is done to establish an individual’s capacity to make an informed decision on their accommodation in a particular care facility for the purpose of treatment or care. According to Mental Act of 2005, the decision has to focus on a particular decision made and not on assumptions or generalisations on the possibilities on an individual’s mental capacity to make and informed decision. In Ann’s case, the decision should focus on whether her stay in the home will help safeguard her health beyond recovery of her injuries (Meyer, 2006). Mental health assessment The assessment establishes mental health of an individual and authorisation can only be made when one has a mental disorder. In Ann’s case, she was diagnosed with Korsakoffs dementia, which is a form of mental disorder (Pérez, 2006). Eligibility assessment An individual does not qualify for authorization if they are detained using the Mental Health Act of 1983, has met the detention criteria of the act to qualify for a recall under the law, or is subject to the law as to their living arrangements. In Ann’s case, her living conditions are not conducive, and she is mentally incapable of reaching a decision that serves her best interest (Murdoch, 2002). Best interest assessment The assessor has to establish whether deprivation of liberty is taking place, if it is in the best interest of the patient, essential to keep them from harms way, and the best response to the seriousness and possibility of the harm. When making the decision, the assessor must take into account opinions of the patient’s carer, friends or family and any other interested party. In Ann’s case, the assessor must consider the children’s advice while making the decision (Vermeulen, 2011). The Mental Capacity Act of 2005 is based on five main principles namely an individual is assumed to have a proper metal capacity unless it is proven otherwise. An individual should not be treated as though he or she is incapable of making a decision unless necessary and particle steps have be initiated to assist the person without success. A decision made under the following act on behalf or for a person must be done so in the best interest of the individual (Gomien, 2005). Conclusion In the case study, Ann has several options; she can go back home, and a caregiver will be hired to watch over her, she can stay with one of her children’s or she can stay at the care home. Given the fact that her home was no longer a conducive stay and her erratic behaviours towards other residents of borrowing money and inviting friends to use her house as a base for drug consumption, going back home would not be a decision that is in her best interest. Given the recent and less than a rose relationship between Ann and her children, using one of the children, as her primary caregiver would not be in the best interest of Ann. Although to some extent it would be a deprivation Ann’s Liberty, staying in the home care would be a decision there is in her best interest (Cohen, 1991). References Bartlett, P., Lewis, O., & Thorold, O., 2007. Mental disability and the European convention on human rights. Leiden [u.a.: Nijhoff. Bartlett, P., & Sandland, R., 2013. Mental health law: Policy and practice. Bogg, D., 2010. Values and ethics in mental health practice. Exeter: Learning Matters. Cohen, F., 1991. The law of deprivation of liberty: Cases and materials. Durham, N.C: Carolina Academic Press. Gomien, D., & Council of Europe, 2005. Short guide to the European Convention on Human Rights. Strasbourg: Council of Europe Pub Great Britain, 2007. Mental Capacity Act 2005: Code of practice. London: TSO Great Britain, 2008. Deprivation of liberty safeguards: Mental Capacity Act 2005: code of practice to supplement the main Mental Capacity Act 2005 code of practice: issued by the Lord Chancellor on 26 August 2008 in accordance with sections 42 and 43 of the Act. London: TSO. Great Britain, 2007. Mental Health Act 2007: Chapter 12. London: Stationery Office. Jones, R. M., 2008. Mental Capacity Act manual. London: Sweet & Maxwell Karban, K., 2011. Social work and mental health. Cambridge: Polity Press. Meyer, R. G., & Weaver, C. M., 2006. Law and mental health: A case-based approach. New York: Guilford Press Mole, N., Meredith, C., & Council of Europe, 2010. Asylum and the European Convention on Human Rights. Strasbourg: Council of Europe Pub Murdoch, J., Council of Europe., & Council of Europe., 2002. Article 5 of the European Convention on Human Rights: The protection of liberty and security of person. Strasbourg: Council of Europe Pub Pérez, S. M. F., 2006. Enforced disappearances in international human rights. Jefferson, N.C: McFarland & Co., Publishers. Vermeulen, G., 2011. Cross-border execution of judgements involving deprivation of liberty in the EU: Overcoming legal and practical problems through flanking measures. Antwerpen: Maklu. HL V United Kingdom (2004) 40 EHRR 761 Cheshire West and Chester Council v P (2014) UKSC 19, (2014) MHLO 16 P and Q v Surrey County Council (2014) UKSC 19, (2014) MHLO 16 Read More