MCA 2005/ DoLs Briefing

Mental Capacity Act 2005/ DoLs

Welcome

6th April 2012

Neil Lee

Mental Capacity Act 2005BriefingHouse Keeping

Group Agreement

Icebreaker

Overview of the CourseWhat is the Mental Capacity Act?What is it founded upon? (The Five Key Principles)What questions determine lack of capacity?(2 Stage Test)4 stage assessment (questions to ask)So what if capacity is lacking? (Best Interest Checklist)DOLsHow it links into advanced decisions, (LPAs) Lasting Power

Attorneys, Court of Protection & Public GuardianThe role of Independent Mental Capacity Advocates (IMCAS)Useful sources of informationConclusions

AimsTo explore Mental Capacity Act and its Five Key Principles

To enable staff to use the Mental Capacity Act in the workplace

To establish a shared understanding of best working practice in offering support

To understand the different safeguards introduced by the Act

ObjectivesApply the principles of the Mental Capacity Act Understand why it is neededUnderstand that mental capacity is the ability to make a decisionKnow what triggers an assessmentUnderstand how to assess for capacityUnderstand what help/ support somebody will require to make a

decisionKnow who can be a decision makerUnderstand the meaning of ‘Best Interests’Describe the role of Independent Mental Capacity Advocates

(IMCA’S)

What is the MCA?Provides a framework to protect those who lack capacity to make

decisions for themselvesPuts existing good practice, as recognised in common law, into a

legal frameworkApplies to all people over the age of 16Affects all carers in all settings, wherever they may beCame into force between April and October 2007Puts needs and wishes of a person who lacks capacity at the centre

of any decision making processCode of Practice

5 key principles1. A person must be assumed to have capacity unless it is established

that he lacks capacity’2. ‘A person is not to be treated as unable to make a decision unless

all practicable steps to help him to do so have been taken without success’

3. ‘A person is not to be treated as unable to make a decision merely because he makes an unwise decision’

4. ‘An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made in his best interests’

5. ‘The act or decision is to be achieved in a way that is less restrictive of a person’s rights and freedom of action’

5 key principles (cont)In plain English this means:

1. Assume capacity2. Enable capacity3. An ‘unwise’ decision does not automatically mean lack of capacity4. Decisions made for others must be in their Best Interests5. Use the least restrictive alternative

Why we need the Act – who it affects It is an issue that could potentially affect everyoneUp to 2 million people in England and Wales lack mental capacity to

make some decisions for themselvesUp to 6 million family and unpaid carers, and people involved in

health and social care who may provide care or treatment for them

Why we need the Act – who it affects (cont)Many people with the following:DementiaLearning disabilityBrain injurySevere mental illnessTemporary loss of capacity - unconscious, affects of alcohol or

drugs, trauma, severe phobia, deliriumAnybody acting in connection with a person who may lack capacity Anyone planning for the future

What is mental capacity?Mental capacity is the ability to make a decisionCapacity can vary over timeCapacity can vary depending on the decision to be madePhysical conditions, such as location, can affect a persons capacityStaff must not assume a lack of capacity because of a person’s age,

physical appearance, condition or an aspect of their behaviourRefers to an ability to make a decision, or take action, at the time the

decision or action needs to be taken. ‘Mental Capacity’ simply means our ability to be able to make

decisions which are defensible in law. It is a legal issue not a personal attribute ‘Capacity’ is not general! It is time and decision specific

TriggersStaff should start from a presumption of capacity then take into account

(Principle 1)

The person’s behaviour, their circumstances, any concerns raised by people.

What could be a trigger?

Triggers - how to assess capacityCarry out the two stage test of capacity:

Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain (Diagnostic Element)

If so, is the impairment or disturbance sufficient to cause the person to be unable to make that particular decision at the relevant time (Functional Element)

To ‘prove’ stage 2 you must use 4 functional assessments

4 stage assessmentTo understand the information relevant to the decision.

To retain the information relevant to the decision being made long enough to make a decision

To use or weigh the information to make a decision

To communicate the decision (by any means)

Support for someone to make a decision?

Provide all relevant information, don’t give more detail than required

Include information on the consequences of making, or not making, the decision

Provide information on optionsConsult with family and care staff

on the best way to communicateMake the person feel at ease and

don’t rush

• Be aware of any cultural, ethnic or religious factors that may have a bearing

• Try to choose the best time of day for the person

• Try to ensure that the effects of any medication or treatment are considered

• Take it easy – one decision at a time

• Be prepared to try more than once

Remember Principle 2

Who can be a decision maker?Varies depending on the individuals’ circumstances and the type of

care treatment or decision being considered

Health and Social care staff, family and unpaid carers can be decision makers when decisions relate to carrying out an act on behalf of somebody who cannot consent

The person delivering the care or treatment makes the decision about whether to deliver that care treatment

Acts in Connection With Care & Treatment “Personal Care”Helping with washing, dressing or personal hygieneHelping with eating and drinkingHelping with communicationHelping with mobility (moving around)Helping someone take part in education, social or leisure activitiesGoing into a person’s home to drop off shopping or to see if they are

alrightDoing the shopping or buying necessary goods with the person’s

moneyArranging household services (for example, arranging repairs or

maintenance for gas and electricity supplies)Providing services that help around the home (such as homecare or

meals on wheels)Undertaking actions related to community care services (for

example, day care, residential accommodation or nursing care)

Acts in Connection With Care & Treatment “Healthcare”Carrying out diagnostic examinations and tests (to identify an illness,

condition or other problem)Providing professional medical, dental and similar treatmentGiving medicationTaking someone to hospital for assessment or treatmentProviding nursing care (whether in hospital or in the community)Carrying out any other necessary medical procedures (for a blood

sample) or therapies (for example, physiotherapy or chiropody)Providing care in an emergency

Break

Best interestsAny decision or act must be in a person’s best interests. When

making decisions, staff should take into account of the following:

equal consideration and non-discrimination

considering all relevant circumstances

regaining capacity

Best interests (cont)Permitting and encouraging participation

Special considerations for life-sustaining treatment

The person’s wishes, feelings, beliefs and values

The views of other people

Acting lawfullySection 5 of the MCA provides protection from liability provided that all

the 3 MCA requirements are met (3 R’s)

1. Reasonable steps are taken to establish whether the person lacks capacity for the decision

2. Reasonably believe that the person lacks capacity and provide the evidence

3. Really believe that you have acted in the persons best interest

What kind of records will staff need?Day-to-day – record and review, but elaborate records not

required on every occasion about decision / acts of care

Professional records – record assessments of capacity

Formal reports as required

Restraint Physical restraint is lawful if the 2 conditions are met (MCA section 5 & 6: Code of Practice)

Where a person who lacks capacity resists (restriction of liberty or movement is restraint)

Includes acts of: Personal care, Healthcare and treatment

1. Reasonably believe that restraint is necessary to prevent harm to the person who lacks capacity

2. The amount or type of restraint used and the amount of time it lasts must be a proportionate response to likelihood and seriousness of harm

Restraint press release

Restraint (cont) Physical restraint is lawful if the 2 conditions are met (MCA section 5 & 6: Code of Practice

For example, a carer may need to hold a person’s arm while they cross the road, if the person does not understand the dangers of roads. But it would not be a proportionate response to stop the person going outdoors at all. It may be appropriate to have a secure lock on a door that faces a busy road, but it would not be a proportionate response to lock someone in a bedroom all the time to prevent them from attempting to cross the road.

MCA Code of Practice 6.47

Deprivation of Liberty Safeguards Introduced into Mental Capacity Act 2005 thought the Mental Health Act

2007

DOLs are there to prevent arbitrary decisions that deprive vulnerable people of their liberty

DOLs are there to protect individuals and if they do need to be deprived of their liberty give them right of appeal, representatives, and for the deprivation to be reviewed and monitored

DOLs are for the purpose of giving a person care and treatment

Deprivation of Liberty Safeguards The Bournewood CaseThis tests the boundary between restraint and human rights under

Article 5 of the European Convention on Human Rights (ECHR) – the right to liberty for people who do not have capacity

Any deprivation of liberty is lawful only if there are safeguards such as the Mental Health Act 1983, a court ruling, the Mental Capacity Act or Deprivation of Liberty Safeguards

The Bournewood CaseA man (unnamed) with learning disabilities who could not speak

became upset and started self harming when attending a day centreHe was taken to Bournewood hospital and kept there. His carers

were told they could not visit himDoctors were worried the man would want to go home with the

carers and that he should be kept in hospital and treated. His carers disagreed with this and took the case to court

This tests the boundary between restraint and the loss of human rights under Article 5 of the European Convention on Human Rights (ECHR) – the right to liberty for people who do not have capacity

Deprivation of Liberty SafeguardsThe safeguards apply to people over the age of 18 who have a

mental disorder and lack capacity to consent to the arrangements made for their care or treatment and are not detained under the Mental Health Act 1983 or have a court order in place

A deprivation of liberty can only be authorised in a hospital or registered care home

Deprivation of Liberty SafeguardsManaging Authority – Hospital / Care HomeSupervisory Body – PCT / Local Authority Authority to deprive a person of their libertyAssessments – age assessment, no refusal assessment ( in conflict with an

advanced decision / decision of donee or deputy), mental capacity assessment, mental heath assessment, eligibility assessment and a best interest assessment

Authority granted for a maximum of one year but can be reviewed at anytime

Examples of DOLs

Deprivation of Liberty SafeguardsHospitals and registered care homes have the responsibility for

managing the Deprivation of Liberty Safeguards If you think there is a unlawful Deprivation of Liberty happening in a

hospital or registered care home you should initial raise it with the hospital or care home. If the issues isn’t resolved you then raise it with the DOL’s Co-ordinator

If you think there is a Deprivation of Liberty happening outside of a hospital or registered care home it maybe a safeguarding issue

Deprivation of Liberty maybe used as a protective measure / outcome from safeguarding

DOLs video

Lasting and Enduring Powers of Attorney (LPA / EPA)Two different LPAs to cover a range of circumstances:

- personal welfare (including healthcare)- property and affairs (finance)

Who can be an attorney?An attorney must be over 18 years oldAn individual can be an attorney for more than one personStaff should NOT normally act as attorneys

Enduring Powers of AttorneyEstablished under previous legislation to manage property and

financial affairs

No new Enduring Powers of Attorney after the MCA is implemented

Existing Enduring Powers of Attorney will be valid whether registered or not

What is a Court Appointed Deputy?A person appointed to make certain decisions on behalf of a person

who lacks capacity to make those decisions

Could be a family member, carer or any other person that the Court thinks suitable including a trust

The difference between a Deputy and a LPA:

Deputy is appointed by the CourtLPA is granted by the person

Advanced DecisionsAn advanced decision is prepared when a person has capacity

It is a decision to refuse specific treatment and is binding

Other expressions of an individuals preferences are not binding but must be considered

Staff must be able to recognise when an advance decision is valid

An advanced decision must be written, signed and witnessed if life-sustaining treatment is being refused

Advanced Decisions (cont)A relevant Lasting Power of Attorney will override an advanced

decision if it is made after the decision

An advanced decision can be withdrawn:By the individual while they have capacity If the individual does something that is clearly inconsistent with the

advance decision By the decision maker, if the treatment is now available that was

not available when the advance decision was made

Advanced Decision press release

The Court of Protection and The Public GuardianThe MCA introduces two new bodies:

The Court of Protection

Office of the Public guardian

The Role of the Court of Protection

Decides whether a person has capacity to make a particular decision for themselves

Make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions

Appoint Deputies to make decisions for people lacking capacity to make those decisions

Decide whether an LPA or EPA is validRemove Deputies or attorneys who fail to carry out their dutiesHear cases concerning objections to register an  LPA or EPA and

make decisions about whether or not an LPA or EPA is valid

The Role of the Public GuardianKeeps a register of Lasting Powers of Attorney and Enduring Powers

of AttorneyMonitors attorneysReceives reports from attorneys and deputiesKeeps a register of orders appointing deputiesSupervisors deputies appointed by the courtDirects Court of Protection visitorsProvides reports to the courtDeals with enquiries and complaints about the way deputies or

attorneys use their powersWorks closely with other agencies to prevent abuse

Independent Mental Capacity Advocates (IMCA’s)IMCA’s are a local service to represent the interests of:

People lacking capacity when making a serious decision about medical treatment or a move, and in some adult protection cases, and if

They have no one else to speak for them other than paid carers, and their care is arranged by their local authority or NHS

The IMCA has a right to information about the person who lacks capacity but is not the decision maker

IMCA’s (cont)Duties of an IMCA Support the person who lacks capacity, represent their views

/interests Obtain / evaluate information through interviewing the person and

examining records / documents Obtain views of professionals / paid workers providing care Identify alternative courses of actionObtain a further medical report, if required Prepare a report (that the decision maker must consider)

IMCA’s (cont)IMCA’s are provided to support people in cases that involve:

A long-term care move

Serious medical treatment

Adult protection procedures

A care review

Deprivation of Liberty

New criminal offences of ill-treatment or wilful neglectNew offences apply to:

People who have the care of a person who lacks capacityAn attorney under a Lasting Power of AttorneyA deputy appointed by the Court

Criminal offences can result in a fine and/or a sentence of imprisonment of up to five years

Useful informationwww.dca.gov.uk/legal-policy/mental-capacity/publications.htm

http://www.justice.gov.uk/contacts/opg

Office of the Public GuardianPO Box 16185BirminghamB2 2WH0300 456 0300

ConclusionMCA – Provides a framework to protect those who lack capacity

Why it is needed – It is an issue that could potentially affect everyone

Mental capacity is the ability to make a decision

What triggers an assessment

How to assess for capacity – 2 stage test

Conclusion (cont)4 Stage assessment

What help / support someone could need to make a decision

Record keeping

Who can be a decision maker?

Meaning of ‘Best Interests’

Acting lawfully in connection with care / treatment

Conclusion (cont)The Bournewood Case & DOL’s

Lasting Power of Attorney / Enduring Power of Attorney

Advanced decisions

Role of the Court of Protection & Public Guardian

Independent Mental Capacity Advocates (IMCA’S)

New Criminal Offences

Mental Capacity Act BriefingQuiz

Any questions

Evaluations & Certificates

“The great end of learning is not knowledge, but action”Peter Honey

Thank you

Neil [email protected]