Consultation response on education and training approval standards for best interests assessors

Introduction

As the professional regulator for social workers, our overarching objective is to protect the public. One of the ways we do this is by regulating education and training courses. This helps to ensure that the courses give students the skills and knowledge to practice safely and effectively.

We are responsible for regulating all courses in England which enable people to practise as a social worker, an approved mental health professional (AMHP) or a best interests assessor (BIA). In 2023, we launched a 10 week public consultation on a set of standards that we propose to use to approve education and training courses for BIAs. We intend to implement these in 2025.

This is an overview of the consultation. It includes (all of the following):

• what we did to reach our proposals
• a summary of the consultation responses
• the final version of the education and training approval standards

Why we developed these standards

In December 2019, we took on responsibility for regulating best interests assessor courses.

In 2019, new legislation was introduced, under which the BIA role would be replaced with the new approved mental capacity professional (AMCP) role. It was expected these changes would come into effect before the end of 2020, so we did not think it was proportionate to create new standards for the BIA role at that time.

National progress on the development of the AMCP role was delayed by the pandemic and its longer-term impact on course providers and the care sector. Therefore, we did not consult on education and training standards for AMCP courses until 2022.

In 2023, the previous government postponed the introduction of the AMCP role until after the end of the previous parliament. Therefore, we consulted on proposed new education and training standards for the approval and reapproval of BIA courses.

How we developed these standards

As AMCPs and BIAs cover similar areas of work, we worked with experts in the BIA sector to develop proposed BIA education and training standards based on the AMCP standards. We used feedback from the AMCP consultation we did in 2022 and adapted the standards to reflect the differences between the roles. The feedback we used came from a range of stakeholders, including:

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

We also determined that the 6 key capabilities for BIAs, originally published by the College of Social Work in 2013, remained a useful basis for curriculum development. We annexed these capabilities to the standards, so that they could fulfil the same role for BIAs as schedule 2 of the Mental Health (Approved Mental Health Professional) (Approval) Regulations 2008 does for AMHPs. 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 we consulted 

Section 43(2) of the Children and Social Work Act 2017 requires us to undertake a consultation before we determine and publish any standards for education and training. We consulted on the proposed standards by (all of the following):

• publishing a proposal on our website, along with an accompanying consultation document, explaining the standards and capabilities
• asking targeted questions in an online survey
• encouraging feedback by email (consultationresponses@socialworkengland.org.uk)
• meeting with representatives from national organisations
• consulting with people via our regional engagement leads

We promoted the consultation through emails to stakeholders, our newsletter and on our social media channels.

Who responded to the consultation

We received 37 responses in total. We received 32 responses to our online survey and 5 responses directly by email. 14 of the online responses were from organisations (7 employers, 6 education providers and 1 other) and 18 were from individuals. These individuals included 11 people who were social workers, 10 who were BIAs, 5 who were AMHP, and 5 who held other roles such as academics, students, principal social workers or people with lived experience. These numbers add up to more than 18 because most of the respondents held more than one role, for instance social worker and BIA. We incorporated feedback from the Department for Education, our sponsor department, as part of the process of final approval for our proposed new standards.

In the online survey, we asked people to what extent they agreed with our proposals. Respondents could rank their level of agreement on a scale from 1 (strongly disagree) to 5 (strongly agree). The scale helped us to understand the extent to which people supported our proposals. The survey also had space for respondents to write the reason for their scores and any additional comments. All of the consultation feedback has been considered and informed amendments to the standards.

What you said, and what we did

The link between the standards and capabilities

Respondents were largely content that the link between the standards and the capabilities was clear and sufficiently robust. The average approval rating was 4 out of 5 and we received a lot of useful suggestions and comments. We will action (all of the following):

• include a clear statement of the relationship between the standards and capabilities
• clarify that the standards apply to course providers and the capabilities to practitioners
• provide examples of legislation and policy

We will include these in the introduction to the standards and accompanying guidance. This will provide context and further information about what we are looking for and how course providers might meet the standards.

There were some suggestions that we will take forward into other work. Employers requested that we prioritise BIA training more, to ensure that organisations are fully aware of the Mental Capacity Act 2005. Some of our respondents suggested that we should set requirements for employers, especially in relation to placement arrangements.

We are mindful of the issues behind these suggestions but we are unable to implement them directly in the standards and capabilities, and accompanying guidance. We will however consider how we can represent these concerns in our wider engagement with the sector, including in how we communicate about the standards and capabilities.

A small number of respondents suggested that we should break up the capabilities and locate each one after the corresponding standard, as a way of strengthening the link between them. We did consider this approach, both in preparation for the consultation and again when we received these suggestions. However, we felt that the proposed structure, with the capabilities annexed to the standards, was the most logical. It enables us to mirror the framework around AMHP training, where the standards held by Social Work England point to the competencies set out in legislation (Schedule 2 of the Mental Health (Approved Mental Health Professional) (Approval) (England) Regulations 2008).

These standards and accompanying guidance have had input from subject experts, education providers and the relevant government departments. As part of the refinement and approval process post consultation, and in line with Section 43(2)(b) of the Children and Social Work Act 2017, we have changed a number of standards to remove duplication and align with our education and training standards.

Updates to the capabilities

In order to minimise the amount of time taken up by our policy development processes, we took the decision to adopt the 6 key capabilities as they were originally written and published in 2013, instead of holding the usual pre-consultation exercise to establish a proposed set of changes before this consultation. We asked respondents to tell us what updates we should make to these capabilities, and received a number of suggestions which we have been able to action. These included:

• updating language to reflect changes in terminology, legislative detail or policy since the capabilities were originally written. We added the Care Act 2014 to the list of legislation in 1.1(ii); we changed ‘presumption of capacity’ to ‘assumption of capacity’ in 2 to match the language of Section 1(2) of the Mental Capacity Act 2005; and we removed ‘informed’ from 4.1(iii) to align better with the Mental Capacity Act and Code of Practice.
• aligning some of the original language with relevant legislation and policy, for example, amending the list of protected characteristics in capabilities 2 and 5 to align fully with the Equality Act 2010
• revising capability 2 to refer to ‘the legal test that must be applied when assessing capacity’ to ensure BIAs develop an understanding of the correct legal test that must be applied, and allow for any future developments in case law in this area
• amending the wording of capability 4 to ensure clarity around unwise decisions
• adding part (v) to capability 5.1 to include consideration of public protection from a Deprivation of Liberty Safeguards (DoLS) perspective
• adding part (iii) to 6.1 to add assessment of risk to others as well as risk to self
• separating the original 1.2 (vi) into two sections: one clarifies what we mean by ‘assert a social perspective’, and one that relates to properly informed decisions against tight timescales
• broadening capability 3.2 (i) to cover mental capacity assessments as well as DoLS assessments.

One respondent suggested that we amend capability 1.2 (v) from ‘work within their area of competence’ to ‘capability.’ We understood the logic of this suggestion, but decided to keep the original wording because this aligns better with the language of the standards (for example, standard 4.6).

A number of respondents questioned why we did not specify a minimum length for BIA courses. Most people who raised this linked the length of the course to the credibility and authority of the resulting qualification. However, at this stage, we do not think that a minimum course length set by the regulator would in itself demonstrate quality. Providers might also wish to respond to the needs of local workforces by innovating with the pace and mode of delivery. We remain open to learning from the sector on this question and may consider it again in future revisions or reviews of our standards.

On balance, we feel that mandating a specific duration would not, in itself, produce a reliable indicator of quality. We already require providers to collaborate closely with local employers in designing and delivering courses. We feel that this is a more suitable space for course duration to be determined.

Other suggestions

There were some suggestions which relate more to wider policy and are not in our gift to reflect in the capabilities as we adopt them. These included:

• the addition of other professions to the list of those eligible to train and act as BIAs. One respondent queried whether legal professionals could train, and another asked about speech and language therapists, who were due to be included in the equivalent list for the role of AMCP. The list of eligible professionals is set out in the relevant legislation (Paragraph 5 of The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008) and any amendments would have to be made by the Department of Health and Social Care
• the creation of standards or requirements for employers, to mandate the provision of regular access to clinical supervision focused on the BIA role. While we understand the reasons for this, our education and training standards for BIA courses do not apply to employers. However, we regularly engage with the sector and will continue to look for opportunities to promote them with employers and employers’ organisations.
• some respondents suggested a minimum number of continuing professional development CPD hours should be required for BIAs. We agree that this is a reasonable proposal, but we cannot incorporate this requirement into these standards. Instead, it would need to be a requirement attached to the regulation of practising BIAs. Once these standards are published, we will consider developing a regulatory framework for BIAs, and will consider this suggestion as part of that work.

Understanding the standards

14 of 18 respondents who answered this question agreed that there was nothing in the standards that they didn’t understand. The others either answered that the standards were ‘about right’, or responded with ‘not applicable.’ Others made suggestions which we have covered elsewhere in this consultation response.

Other comments about the standards

We asked to what extent the standards accurately reflect the requirements of the BIA role. The average rating was 4.2 out of 5.0. We recorded the same score when we asked specifically about how far the language of standard 1 reflects what an applicant should be able to demonstrate upon admission to the course.

Just under a third of respondents (8 of 27) had no further remarks to make about the standards beyond their answers to our earlier questions. Among the others, we received a range of comments and suggestions. These included:

• calls for a minimum course duration
• a number of minor clarifications and corrections, such as the addition of ‘carers’ for consistency to standard 1.6 and a typographical error in standard 1

Equality impact assessment

We’re committed to monitoring the impact, and enhancing the accessibility and content, of all our services to meet our equality duties and objectives. We’ve reflected on the feedback from our consultation to assess the potential positive and negative impacts of our proposals.

Between 17 August 2023 and 26 October 2023, we held a public consultation on standards that we propose to use to approve courses for BIAs. We received 37 responses to the consultation which included feedback from key stakeholder organisations.

This equality impact assessment shows how we’ve taken care to eliminate unlawful discrimination and promote equal opportunities. As part of the equality impact assessment, we found that people from some protected characteristic groups could be impacted either positively or there would be no impact. We also considered how the changes could impact a person’s socio-economic status or health and wellbeing.

Consultation responses

Through our consultation, we asked respondents if they thought our proposed changes would have a positive, negative or no impact on people in different protected characteristics groups, and in what way. The responses have helped us to understand which groups respondents thought would be most impacted and consider areas for change and improvement.

What people said

Few respondents identified any specific potential impact, although almost all felt the overall outcome of the standards would be positive. Only one respondent felt there would be a negative impact, calling for greater detail to the communications statements in the capabilities. We note this concern, but feel that it is more effectively addressed as part of our inspection process and will consider whether and where we could reflect it in the guidance that will accompany these standards.

The standards do not apply to individuals but to course providers, and because there are a range of other standards and requirements which already apply to them (and us) under the public sector equality duty, we expect any impact from these standards to be marginal, though still positive.

These are the principal standards relating to equality, diversity and inclusion:

Standard 1.7

‘Ensure that there are equality, diversity and inclusion policies in relation to applicants and that they are implemented and monitored.”

Standard 4.3

“Ensure that the course is designed in accordance with equality, diversity and inclusion principles, human rights and legislative frameworks.”

Standard 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.”

These standards represent a robust commitment to delivering on our equality duty. In addition standard 2.3 reads:

‘Ensure that the number of students admitted is aligned to a clear strategy, which includes consideration of […] the availability of part-time and other flexible course arrangements to widen access wherever possible.’

This represents an additional expectation that providers will demonstrate thinking about this during the course design process. This is a minor, but proportionate, step we will take to bolster thinking about equality of access to courses.

This equality impact assessment has been undertaken and signed off in accordance with Social Work England’s responsibilities under the Public Sector Equality Duty, as set out in the Equality Act 2010.

Name: Sarah Blackmore
Title: Executive Director of Professional Practice and External Engagement
Date approved: 2023

What happens next?

The revised and final education and training approval standards for BIA courses can be found on our website . These are not yet in effect, which means we are not yet quality assuring BIA education and training courses against them.

The implementation date for these standards will be summer 2025. They will then apply to all new approvals or re-approvals of BIA courses regulated by us in England. We have also published supporting guidance to give more detail about how course providers can demonstrate that they meet the standards.