You will be aware, kind readers, that like the 12 Days of Christmas, there are 6 Assessments of DOLS. I put it that way round because it seems more sonorous than 6 DOLS Assessments, though it amounts to the same thing*. In the good old days, we had a form for each assessment, even the age one, but now those spoilsports at ADASS have simplified the DOLS forms and made things a lot easier. I say, put them in charge of DOLS as a whole and simplify it to the ground.
You will see that there are still 12 forms in total, but that represents an immense saving on the ?24 we had before. I have only ever bothered with Form 1, Form 3, Form 5 (doing a favour for the Supervisory Body by filling in all the details for them) and Form 11 – appointing an IMCA. And of Course Form 4, where I peruse the wisdom of the Mental Health Assessor, known simply as “The Doctor” to most of us.
BIAs who are just BIAs really only need worry about Form 1 (to read it), Form 3 (to write it), Form 4 (to take account of) and Form 11 (to fill in for an IMCA where necessary). And the greatest of these are Form 3 and Form 4 because they contain therein all 6 of the necessary DOLS assessments. And remember readers, if the Relevant Person (that handy, person-centered, humanistic term for he or she who lies at the centre of the process), fails one of the six, they fail ‘em all. Job undone.
Medical Protection do a summary of the assessments without the jokes (or my incisive insight?) here.
So in Form 3 we have:
- The Age Assessment. If you know the date of birth, no need to estimate their age. We presume the Supervisory Body can work out that they’re over 18 from the DoB.
- Mental Capacity Assessment . It might be that the Mental Health Assessor has been tasked with this one. Let’s face it, they get off pretty lightly for the money they’re paid per assessment, so leave them to it. It has been known where I’ve looked at a Form 4 and the doctor has said that the RP either lacks or has capacity but is so way off that it makes you wince, that I have done my own. Because we are just better at it than most of the doctors. I digress, but many s12 doctors would section a chair, similarly they often err on the side of “doctor knows best” and presume incapacity. I don’t have to be kind here – it’s my blog. But with a good doctor who knows his/her onions, you just leave this blank.
- No Refusals. That’s always the BIA. Is there any Advanced Decision, LPA or Deputy in place that would conflict with the DOLS. Remember LPAs who have health and welfare can object to DOLS and stop it in its tracks.
- The Best Interests Decision. That’s always the BIA’s and is the biggie, which I will look at in greater detail in another post.
In Form 4, we have
- The Mental Capacity Assessment. See above. Usually the doctor is tasked to do this.
- The Mental Health Assessment. Only a doctor who is approved under s.12(2) of the Mental Health Act can do this. Not the BIA. Not a psychiatric nurse, no matter how good they are.
- The Eligibility Assessment. This can be done only by someone with additional training in the Mental Health Act – the s12 doctor or an AMHP. If the BIA is also an AMHP, they can do this. But why cheat the doctor of their work? Basically this provision rules out DOLS if the patient is already under another Article 5 regime – such as a section of the MHA, either Part 2 or Part 3 so a civil or forensic section – 2, 3, 4, 35-38, 44, 45A, 47, 48 or 51. Or on s.17 leave, or on Guardianship, CTO, or Conditional Discharge. Except I think the ADASS form here is misleading Not that you need to worry about it as a BIA.
EXCEPT: Read this article from 39 Essex Chambers about caselaw about DOLS and Guardianship, where it is clear you can have both at the same time. It may be ADASS Form 4 is allowing this, but it doesn’t look like that to me and it seems to suggest that where you have Guardianship, you can’t have DOLS. Put my misunderstanding about your form right please ADASS.
AND. I went to training where it was suggested, unlike what it says on the ADASS form, you could have DOLS where someone was on s17 leave. The case would be where the DOLS was for a separate detention. So, where a patient on say, s3 of the MHA, was rushed from the psychiatric unit where he was detained, to a general hospital for treatment of his heart condition, then that would be a separate detention, and where he lacked capacity to consent to a hospital regime that met the Acid Test, that detention for a separate purpose (i.e. treatment of his physical rather than his mental illness), would require a separate authorisation, most likely under DOLS. 39 Essex Chambers, as always provide a useful review of this. Their article is entitled “An unholy mess – s.17 leave and treatment for physical disorder.” You’ve got to laugh.
HOWEVER, to be fair to ADASS. They have guidance notes do explain these discrepancies and I supply a link here because I think you should know. It’s just these discrepancies are far from clear form reading Form 4 alone. It’s just another example of the crystal clear interface between DOLS, MCA and the MHA.
*Not being a lawyer or a doctor or in any way otherwise writing for an employer I can employ any style of writing I like and I choose this mildly annoying one.