Consultation on education and training approval standards for best interests assessors

This consultation has now closed. We're currently evaluating your responses and will share more information at a later date.

Contents

• Introduction
• About the Deprivation of Liberty Safeguards (DoLS) and the BIA role
• About the standards
• How to respond
• What happens next
• Summary of consultation questions
• Our proposed standards for best interests assessor (BIA) course approval (2023)
• Annex 1: The 6 BIA capabilities

Respond to the consultation

Introduction

Social Work England sets and upholds the professional standards for all social workers in England. We also approve training for certain advanced practice roles and include these roles as annotations on our register. One of these areas is mental capacity, and we are now consulting on a new set of standards which we will use to approve and reapprove courses leading to the specialist award of best interests assessor (BIA).

The standards that we are consulting on set out our expectations for what courses need to do to be sure those who qualify from them can practise as a safe and effective BIA.

About the Deprivation of Liberty Safeguards (DoLS) and the BIA role

The Deprivation of Liberty Safeguards (DoLS) are the legal framework that protects the rights of people who have been deprived of their liberty. They ensure that such deprivations are lawful when the person in question does not have the mental capacity to challenge them or to indicate their consent.

Broadly speaking, in order for a care home or hospital to deprive someone of their liberty, they must apply to the local authority (council) for authorisation. The council must then undertake a number of assessments, including an assessment undertaken by a best interests assessor (‘BIA’). The law [1] sets out criteria that the people carrying out these assessments must meet. One of these criteria is that they must hold a BIA qualification, and courses which lead to this qualification must follow these standards.

[note 1] The The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008

About the standards

Why are we introducing the standards?

To become a BIA, you need to be registered in any of these 4 professions:

• social worker (registered with Social Work England)
• first level nurse (registered with the Nursing and Midwifery Council)
• occupational therapist or psychologist (registered with the Health and Care Professions Council)

The training to become a BIA is the same regardless of the person’s regulated profession. To ensure consistency of oversight, Social Work England is named in law as the regulator for this training.

Why are we introducing them now?

In 2019, new legislation established Social Work England as a new professional regulator and this gave us responsibility for setting standards for BIA courses, and approving and reapproving them against these standards.

In December 2019 we began reviewing the current standards but during this time new legislation had been introduced to replace DoLS and the BIA role with the Liberty Protection Safeguards (LPS). The LPS outlined that the BIA role would have been replaced with the new approved mental capacity professional (AMCP) role. It was expected these changes would come into effect before the end of 2020.

We agreed that it would be disproportionate for us to consult on, introduce and implement a new set of standards for BIA courses given that the expected lifespan of these courses was no longer than 12 months. As a result, we agreed that we would approve any new BIA courses against the standards in place since 2009. However, no new courses have been established since 2019, so we have not approved any new courses.

In early 2020, the COVID-19 pandemic began to have severe operational impacts on the health and care system as well as the legislative process. The introduction of the LPS was delayed and it was neither practical nor proportionate to introduce new BIA standards instead at that time.

Following a series of delays, the Government announced in April 2023 that it would now postpone the replacement of DoLS with LPS until the next Parliament. This means that we can reasonably expect DoLS to remain in place for a minimum of eighteen months.

This delay has increased the likelihood that education and training providers will seek approval for courses in order to increase the supply of available BIAs. We are now proposing to introduce new education and training standards which we can use to approve and reapprove BIA courses for the foreseeable future.

How did we develop the standards?

In 2022 we consulted on the education and training standards for the new approved mental capacity professional (AMCP) role which was intended to replace the BIA role.

Before and during the consultation, we engaged with a range of stakeholders including:

• training providers
• BIAs
• social workers
• people with lived and learned experience
• our National Advisory Forum

We received lots of feedback from a wide range of stakeholders which we incorporated into the final version of the AMCP education and training standards.

Because AMCPs and BIAs cover similar areas of work we have not repeated this pre-consultation engagement. Instead, we based our proposed BIA education and training standards on the feedback we previously received, adapting them to reflect the differences between the roles.

We also determined that the 6 key competencies for best interests assessors (published by the College of Social Work in 2013) remained a useful basis for curriculum development and were already the basis for courses previously developed and approved.

We have annexed these capabilities to the standards, so that they can fulfil the same role for BIAs as schedule 2 of the Mental Health (Approved Mental Health Professional) (Approval) Regulations 2008 does for AMHPs – that is, they set out the baseline competency requirements that BIAs should be able to meet when they qualify. They provide helpful, robust and tested guidance which will help course providers design their course curricula.

How to respond to the consultation

This consultation closed on 26 October 2023. Thank you for your responses.

What happens next?

Once the consultation closes on Thursday 26 October, we will collate, read and analyse all the responses. We will read and consider all the feedback, and we will review and make changes to our proposals in response to this. We will publish a summary of the feedback received and the changes we have made alongside the revised education and training standards for BIAs.

The revised standards will then be reviewed by the government and final approval on these will need to be granted by the Secretary of State. Once we have final approval on the standards we can confirm the date we expect the standards to come into effect. We expect the new standards will be introduced in early 2024. We will then be in contact with providers to discuss arrangements for reapproval of existing courses.

These are the standards by which Social Work England will use to approve, monitor and reapprove courses qualifying a professional to act as a best interests assessor (BIA). Standards are criteria by which we will assess whether a course should be approved to offer, or continue to offer, BIA training.

You should read these standards alongside the following documents:

• The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 (referred to in this document as the ‘BIA regulations’)
• any additional Social Work England standards or guidance for these standards, or for relevant specialist practice

Definitions and terms

Relevant qualified professionals

Any of the professionals listed as eligible for approval by a local authority in England to act on their behalf as a BIA under the BIA regulations. They must be registered with the relevant regulatory body. Relevant qualified professionals are:

• social workers (registered with Social Work England)
• practising psychologists (registered with the Health and Care Professions Council, and listed in the British Psychological Society’s Register of Chartered Psychologists)
• first level nurses (registered with the Nursing and Midwifery Council)
• occupational therapists (registered with the Health and Care Professions Council)

Relevant regulatory body

Any regulatory body mentioned in the BIA regulations as being responsible for the professional registration of those eligible for approval as a BIA.

• Health and Care Professions Council
• Nursing and Midwifery Council
• Social Work England

People with lived experience

We recognise that different regulators and professions use different terms to describe the people that their professionals seek to support, together with their carers. For example, ‘patient’ or ’service user’. As these standards are the statutory responsibility of Social Work England, we have used the term ‘people with lived experience’, which includes carers, to cover this.

Student

We have used the term ‘student’ throughout this document. We use this to mean anyone learning, studying or training on a course approved by us for qualifying as a BIA. The term includes trainees, apprentices and practitioners in training or work-based learning and applies to all relevant qualified professionals regardless of their regulatory body.

The standards

Standard 1: Admissions

1. Education and training providers will:

• 1.1. Confirm on entry to the course that applicants have:

  • i. the potential to develop the knowledge and skills necessary to meet the 6 BIA capabilities set out in Annex 1 of these standards

  • ii. the potential to meet the eligibility criteria for the role set out in the relevant legislation governing BIA practice [2]

  • iii. the capability to use information and communication technology (ICT) methods and techniques to achieve course outcomes

• 1.2. Confirm thaat applicants are and remain fully registered with a relevant regulatory body in line with the relevant regulations.
• 1.3. Confirm that applicants have, and can demonstrate, suitable prior experience of the practical application of appropriate legislation and policy, specifically including but not limited to mental capacity, mental health and human rights legislation, and demonstrable experience of understanding risk in relation to these.
• 1.4. Confirm that applicants have a robust level of legal literacy in appropriate legislative and policy areas.
• 1.5. Confirm that applicants can demonstrate a commitment to anti-racist, anti-discriminatory and anti-oppressive practice.
• 1.6. Ensure that employers, placement providers, and people with lived experience are involved in admissions processes.
• 1.7. Ensure that the admissions processes assess the suitability of applicants, including in relation to their conduct, health and character. This includes appropriate criminal conviction checks.
• 1.8. Ensure that there are equality, diversity and inclusion policies in relation to applicants and that they are implemented and monitored.
• 1.9. Ensure that the admissions process gives applicants the information they require to make an informed choice about whether to take up a place. This will include information about the award level and professional qualification, course content, teaching modes, location of study, assessment methods, duration, and observation requirements including the expectations around arranging or securing observation opportunities.

[note 2] The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008

Standard 2: Course governance, management and quality

2. Education and training providers will:

• 2.1. Ensure courses are supported by a management and governance plan that includes the roles, responsibilities and lines of accountability of individuals and governing groups in the delivering, resourcing and managing the quality of the course.
• 2.2. Ensure that effective monitoring, evaluation and improvement systems are in place, and that these involve employers, people with relevant lived experience including carers, and students.
• 2.3. Ensure that student admissions are aligned to a clear strategy, which includes consideration of:
  • i. local and regional capacity for observation opportunities; and
  • ii. the availability of part-time or other flexible course arrangements to widen access wherever possible
• 2.4. Ensure that the person with overall professional responsibility for the course is a relevant qualified professional (social worker, occupational therapist, psychologist or nurse) with appropriate experience.
• 2.5. Ensure that there is adequate provision of appropriately qualified and experienced staff.
• 2.6. Ensure that educators are supported to maintain their knowledge and understanding in relation to mental capacity, mental health and human rights legislation and policy, including recent developments, and the practical application of this via the Deprivation of Liberty Safeguards, including giving support to undertake continuing professional development relevant to their role.
• 2.7. Ensure that students have the opportunity to provide feedback about the course and that this feedback is analysed and used to inform the management and development of the course.

Standard 3: Learning environment

3. Education and training providers will:

• 3.1. Ensure that the content, structure and delivery of the training is in accordance with relevant guidance and frameworks and is designed to enable students to demonstrate that they have the required knowledge and skills, including around cross-national border issues in relation to practice in Wales, where this is appropriate.
• 3.2. Ensure that each student has the opportunity to undertake a minimum of 2 practice observation opportunities which:
  • i. enables the student to shadow a BIA assessment
  • ii. provide practice experience that can be applied to a variety of settings and types of responsible body
  • iii. is overseen by a suitably qualified and experienced relevant qualified professional who has relevant and current knowledge, skills and experience to support safe and effective practice
  • iv. enables the student to produce a detailed analysis of relevant practice issues which forms part of the student’s overall assessment
• 3.3. Ensure that the number, duration and range of observation opportunities is appropriate to support the delivery of the course and the achievement of the learning outcomes.
• 3.4. Maintain clear collaborative arrangements for planning and communication with providers including a thorough and effective system for approving and monitoring all observation opportunities.

Standard 4: Curriculum and assessment

4. Education and training providers will:

• 4.1. Ensure that the content, structure and delivery of the training is in accordance with relevant guidance and frameworks and is designed to enable students to demonstrate that they have the necessary knowledge and skills to meet the requirements of the role as set out in the 6 BIA capabilities set out at Annex 1.
• 4.2. Ensure that the views of employers, practitioners and people with lived experience of social work are incorporated into the design, ongoing development and review of the curriculum.
• 4.3. Ensure that the course is designed in accordance with equality, diversity and inclusion principles, and fully aligned with and informed by mental capacity, human rights, and mental health legislation and the principles of anti-discriminatory and anti-racist practice.
• 4.4. Ensure that the course is continually updated as a result of developments in research, legislation, government policy, best practice, and case law.
• 4.5. Ensure that the integration of policy, legal literacy and practice is central to the course.
• 4.6. Ensure that the number of hours spent in structured academic learning under the direction of an educator is sufficient to ensure that students meet the required level of competence.
• 4.7. Provide staff involved in leading and delivering the training with sufficient protected training time to keep their own practice and knowledge up to date in line with statutory and regulatory requirements.
• 4.8. Ensure that assessments are robust, fair, reliable and valid, and that those who successfully complete the course have developed the knowledge and skills necessary to make robust, independent and well-evidenced assessments in the best interests of the person. This should include regular monitoring and evaluation of assessment standards to ensure that they remain robust and reliable.
• 4.9. Ensure students are provided with feedback throughout the course to support their ongoing development.
• 4.10. Ensure that the course is designed to enable students to develop an evidence-informed approach to assessment and evaluation, underpinned by skills, knowledge and an ability to interpret and respond appropriately to legislative and policy change and case law.
• 4.11. Ensure that the course equips students with knowledge and skills in relation to identifying and mediating conflict between individuals, families and agencies to support a robust, independent and well-evidenced determination in the best interests of the person.
• 4.12. Clearly specify requirements for student progression and achievement within the course.
• 4.13. Clearly specify that any equivalent award which may be made will not lead to eligibility to be approved as a BIA.
• 4.14. Clearly specify a process for the appointment of at least 1 external examiner who must be an appropriately experienced and relevant qualified professional.

Standard 5: Supporting students

5. Education and training providers will:

• 5.1. Ensure that students have access to resources to support their health and wellbeing including confidential counselling services. The course must also equip students to understand the potential impact of BIA practice on their own emotional and mental wellbeing, and the importance of identifying ways to handle this impact.
• 5.2. Ensure that students have access to a system of academic and pastoral support for their progression, development and welfare.
• 5.3. Ensure that there is a thorough and effective process for ensuring the ongoing suitability of students’ conduct, character and health.
• 5.4. Make reasonable adjustments for students with health conditions or impairments to enable them to progress through their course and meet the specialist standards, in accordance with relevant legislation.
• 5.5. Provide timely information to students about their curriculum, observation requirements, assessments, and implications for their continuing practice, including arrangements for annotation of the register and requirements for periodic refresher training.
• 5.6. Ensure that students are able to draw links between the completion of their BIA course and ongoing refresher training, and the ongoing requirements of their professional registration such as continuing professional development.
• 5.7. Provide timely and meaningful feedback to students on their progression and performance in assessments.
• 5.8. Ensure there is an effective process in place for students to make academic appeals.
• 5.9. Ensure that policies and processes, including for whistleblowing, are in place for students to challenge unsafe behaviours and cultures and organisational wrongdoing, and report concerns openly and safely without fear of adverse consequences.