Hi
@Champers. My limited experience relates solely to the Deprivation of Liberty Safeguards (DoLS) in a situation where I do have Lasting Power of Attorney for my wife's health and welfare.
The enclosed summary of the DoLS process may add something to the debate that you are having.
This link may also be useful:
https://www.alzheimers.org.uk/get-s...eprivation-liberty-safeguards-dols-assessment
There are 6 assessments carried out:
Age assessment – confirms whether the relevant individual is 18 or over.
No refusals assessment – establishes whether an authorisation would conflict with other existing authority for decision-making for that person, such as an advance decision to refuse treatment under the Mental Capacity Act 2005.
Mental capacity assessment – establishes whether the relevant individual lacks capacity to decide whether or not they should be accommodated in the relevant hospital or care home to be given care.
Mental health assessment – determines whether the relevant individual has a mental disorder within the meaning of the Mental Health Act 1983.
Eligibility assessment – relates specifically to the relevant individual’s status, or potential status, under the Mental Health Act 1983
Best interests assessment – establishes whether deprivation of liberty is occurring or is going to occur, and if so, whether it is:
- in the best interests of the relevant individual to be deprived of liberty
- necessary for them to be deprived of liberty in order to prevent harm to themselves
- a proportionate response to the likelihood of suffering harm and the seriousness of that harm.
The Mental Health Assessment is something that a Mental Health Assessor carries out. This must be a doctor who is able to assess whether a person has a 'mental disorder' (the term used in law to describe a set of mental health conditions, including dementia) and how a deprivation of liberty will affect their mental health.
The Mental Capacity Assessment and Eligibility Assessment may be carried out by the same Mental Health Assessor (using one combined form). Social workers and others who have appropriate training and qualifications eg Best Interests Assessors may also carry out these assessments.
Social workers have clear guidance on their role as set out at:
http://www.tcsw.org.uk/social-workers-and-the-mental-capacity-act-2005/
This starts (rightly) with presumption of capacity but this presumption then needs to be tested and (one would hope) a realistic approach should be adopted which goes beyond saying (merely) that the person wants to go 'home'.
Hope this helps.