Legal Update: For BIAs and Authorising Signatories

The first half of the course focuses on the objective element of the test in Storck v Germany (2004). The Supreme Court has replaced the rigid "acid test" with a multifactorial assessment of an individual’s "concrete situation." Practitioners will learn to move past simple metrics of supervision and control to analyze three newly elevated legal criteria:

• Innate Limitations: Evaluating whether an individual's restrictions are simply the direct consequence of their own physical or medical condition (e.g., being bedbound or frail) rather than restrictions imposed by others.
• The Purpose of the Arrangements: Understanding how to legally factor in the objective, protective, or clinical necessity of the care regime—a consideration which did not matter under Cheshire West.
• The Normality of the Setting: Analysing the type of setting and the relative "normality" of the domestic environment to determine if care arrangements cross the line into a true deprivation of liberty.

The second half of the course tackles the new understanding of the term “valid consent”. Although the judgment does not alter the test for mental capacity under the MCA 2005, it does completely shatters the long-standing understanding that a lack of legal capacity automatically means a person cannot consent to their care arrangements.

The law now recognises that an individual may lack decision-specific capacity under the MCA, yet still possess the basic awareness required to express 'valid consent' to their day-to-day living arrangements through their wishes, feelings, and expressions of contentment. Where this valid consent is robustly evidenced, DoLS will not be engaged.

Practitioners will master how to navigate this new "consent spectrum," learning to safely distinguish between active, demonstrable contentment and passive, fear-driven compliance or silent submission.

• For BIAs: If a supervisory body wishes to carry out a best interest assessment, they must be satisfied that the Best Interest Assessor (BIA) has, in the 12 months prior to selection, completed further training relevant to their role. This update fulfills the ongoing training needs during an immediate regulatory transition featuring no grace period.
• For Authorising Signatories: DoLS authorising signatories require robust knowledge of substantive and procedural law to effectively manage the oversight functions of the Supervisory Body, safely utilise risk-prioritisation tools to manage backlogs, and sign off authorisations to bulletproof, defensible standards. 

Examine the Supreme Court judgment overturning the Cheshire West acid test and evaluate how to apply a multifactorial assessment to determine if a deprivation of liberty exists.

Understand how to assess an individual's "concrete situation" by analysing the nature, length, time, effect, purpose, and setting normality of care restrictions against the prison cell paradigm.

Learn to distinguish between care restrictions resulting from an individual's innate physical or medical condition and those actively imposed through state intervention.

Master the complex shift in practice requiring social workers and assessors to separate the question of domestic mental capacity from valid consent.

Learn how to robustly observe and evidence positive engagement and demonstrable contentment rather than misconstruing passive compliance or silence as consent.

Evaluate when "serious doubt" arises, such as instances of objection, distress, fluctuating wishes, or fear-driven compliance, and ensure no inference of consent is drawn.

Understand how to safely utilize the ADASS DoLS Priority Tool under the new framework to rationalise backlogs, carefully analysing 'green' cases that may now fall outside Article 5.

Equip authorising signatories to clearly articulate legal reasoning regarding whether Article 5 is engaged, focusing on the cumulative impact of restrictions and evidence of consent.