Department of Health letter on MCA and Deprivation of Liberty

With thanks to Niall Fry of DH for permission to reproduce this, here is a letter sent out to MCA/DOLS leads on 14 January including an update on such matters as the MCA Forum and also the DH view on the application of the acid test in the palliative care setting, together with confirmation that DH do not consider that ‘unconsciousness’ would satisfy the mental health requirement for an application under Schedule A1 to the MCA 2005.

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One Reply to “Department of Health letter on MCA and Deprivation of Liberty”

  1. Hello

    With the regard to assessments by BIAs over the English Welsh Border:

    I’m sure Niall’s statement is correct as far as it goes but observe that it might not go far enough! A softening of the previous attitude taken by WG and DoH is welcome but I’d also welcome more specific reassurance.

    DoLS leads were previously told that the ‘local’ regime for the credentials of DoLS assessors applied when P was placed out of their home area and over the border, i.e. that assessors in England had to meet the English standard, and that those in Wales had to meet the Welsh standard.

    The issues are that 1. there was considerable asymmetry between local requirements with Welsh requirements being less stringent, 2. that the professional body a BIA is registered with is also a factor in eligibility to undertake assessments and in one specific case, there’s a serious ‘over the border’ issue.

    1. In Wales, there is no training requirement for a BIA or medical practitioner to undertake a DoLS assessment. This wasn’t a statement that no training was required, but determining the nature of this training was left to Supervisory Bodies. One effect of this was that no ‘indigenous’ DoLS courses were successfully developed and this deficit is only now being addressed because of increased demand. Many Welsh authorities use English courses and most of these were wont to expect staff to pass the course. This would then in theory allow that professional to practice as a BIA in England. Because of the lack of stringency, an English BIA easily could meet the (non-existent) training requirement and practice in Wales.

    2, Niall’s observations only address the training requirement. The primary requirement is that a BIA is a member of one of the four eligible professional and is registered with the relevant professional body. For OTs, nurses and psychologists there is an England and Wales professional body. Members of these professionals can therefore practice in England or Wales. For social workers there are two professional bodies: for England, the Health Care Professions Council; in Wales, the Care Council for Wales. I therefore believe that unless social workers are registered with both bodies, they would be ineligible to practice ‘over the border’. The majority of BIAs are social workers so this may be an issue. HCPC and the Care Council have ceased automatic mutual recognition of registrations. Before sending a social worker to work ‘abroad’, I would like an explicit confirmation that this issue has been noted by DoH and WG and is no longer held to present a bar to such practice.

    I believe DoLS was one of the first pieces of social care law where the Welsh government used delegated powers, so there was probably a conscious wish to use this new liberty and differentiate requirements. I’m not sure this has been successful. The relatively lower priority given to DoLS in Wales by public organisations and the lower levels of applications and assessments may be the result of these arrangements being perceived as a signal that the issue was being taken less seriously.

    To avoid confusion, I would welcome a counterpart statement to the sentence about training requirements addressing the above issues, particularly the issue about professional registration, and explicitly saying whether or not less qualified Welsh assessors can practice safely in England.


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