Safeguarding functions of the  Mental Capacity Act

Safeguarding functions of the Mental Capacity Act PowerPoint PPT Presentation


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Protection:. Public Guardian. Practice Framework Public GuardianCourt of ProtectionIMCAs Deprivation of liberty safeguardsCriminal offence. Introduction: Deprivation of Liberty (DOL) and the Mental Capacity Act. The Deprivation of Liberty safeguards are part of the Mental Capacity Act. They came into force April 2009.Care and treatment must still adhere to the Mental Capacity Act i.e. the safeguards only provide legal authority to detain an individual.A person cannot lawfully be deprive31828

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1. Safeguarding functions of the Mental Capacity Act Nottingham/Nottinghamshire Multi Agency Mental Capacity Act Implementation Project

2. Protection: Practice Framework Public Guardian Court of Protection IMCAs Deprivation of liberty safeguards Criminal offence Summary outline of the safeguarding functions of the Act! Different types of protection that the Act offers are in the box. Work through the list. Some of these are through the role and responsibilities of particular individuals or services that the Act created or developed e.g. IMCAs, public guardian, COP. Others are through either specific legislation to cover particular areas of the practice (DOL Safeguards/criminal offence) and others through the protection for people provided by the legal framework that the Act itself provides. For example, the Two stage test – ensures that practitioners are clear whether a person has capacity or not. If they have, the person can make the decision. If not, they can consider best interests through the checklist and act on their behalf. In this way the Act protects people who can make their own decisions and people who cant make decisions. Similarly, the principles of the Act reaffirm anti-discriminatory practice and enablement. Summary outline of the safeguarding functions of the Act! Different types of protection that the Act offers are in the box. Work through the list. Some of these are through the role and responsibilities of particular individuals or services that the Act created or developed e.g. IMCAs, public guardian, COP. Others are through either specific legislation to cover particular areas of the practice (DOL Safeguards/criminal offence) and others through the protection for people provided by the legal framework that the Act itself provides. For example, the Two stage test – ensures that practitioners are clear whether a person has capacity or not. If they have, the person can make the decision. If not, they can consider best interests through the checklist and act on their behalf. In this way the Act protects people who can make their own decisions and people who cant make decisions. Similarly, the principles of the Act reaffirm anti-discriminatory practice and enablement.

3. Introduction: Deprivation of Liberty (DOL) and the Mental Capacity Act The Deprivation of Liberty safeguards are part of the Mental Capacity Act. They came into force April 2009. Care and treatment must still adhere to the Mental Capacity Act i.e. the safeguards only provide legal authority to detain an individual. A person cannot lawfully be deprived of their liberty in a care home or hospital unless an authorisation is in force. The Safeguards ensure that where a resident of a care home needs to be deprived of their liberty, this must be authorised via a legal procedure.

4. Deprivation of Liberty Safeguards Means that care homes (i.e.' managing authorities’) must request authorisation when one is necessary. Whenever possible, in advance. Assessments must be carried out that establish whether the person meets the eligibility criteria and that it is in their best interests and that there is no other viable alternative. The person deprived of their liberty by a standard authorisation has right of appeal and a representative is always appointed.

5. Independent Mental Capacity Advocates and DOL If someone is deprived of their liberty the IMCA role is to ensure: it is in their best interests they benefit from the DOL safeguards IMCAs may challenge any unlawful deprivations of liberty

6. The Role of the Representative Ensure Conditions are being met by Hospital or Care Home Request a Review of care Apply to the Court of Protection to challenge an authorisation Support and represent the person in all matters relating to their DoL

7. The Deprivation of Liberty Safeguards – What was expected? 21,000 would have had their situation assessed and approximately 5,000 would have been authorised to be deprived of their liberty. Majority would be older people with Dementia and people with Learning Disabilities.

8. What happened? Nationally, the number of referrals have been approximately a third of those anticipated. In the East Midlands, we have had proportionately higher figures but not as high as expected.

9. Overview – Nottingham City

10. Overview – Nottinghamshire County

11. Why might this happening? Training of managing authorities means that DOL is identified and prevented from happening. Over 480 people trained at the MH/LD Trust. Over 300 registered care home managers. Approximately 80 staff from acute general hospitals. DOL leads in key areas. Does this mean that there are really fewer people who are deprived of their liberty?

12. BUT Number of people completing training has been incomplete in some areas and ongoing work is in hand. 52 care homes who did not come along to free training will be followed up. Key staff in general hospitals to continue to be trained. Aware of it and choosing to ignore it? Sanctions? Use of Mental Health Act? Complex concept to understand and identify? Processes and administration but with the right intentions.

13. Case Study Margaret

14. Margaret Reasonable belief that Margaret is deprived of her liberty Urgent Authorisation was completed and a application for a standard authorisation Assessments completed and authorisation granted for 3 months

15. Margaret Conditions attached Paid representative appointed Positive outcomes for Margaret Reduction in restraint and restriction e.g. bed rails and table removed Increased awareness of care provided to Margaret New room – more personalised/better view as she spent significant time in there Clearer programme of activities Focus on Margaret – one to one, structured time (e.g. walking, singing)

16. Disappointment or Lasting Safeguards? Bureaucracy. Complexity. Does the Mental Health Act provide better legal oversight? Vague concepts with little case law to clarify (so far). Protection where none existed before such as: Review of care arrangements. Right of challenge. Right of representation. Timescales and review.

17. Criminal offence The Act introduces two new criminal offences: ill treatment and wilful neglect of a person who lacks capacity to make relevant decisions (section 44). They are separate offences. The offences may apply to: anyone caring for a person who lacks capacity – this includes family carers, healthcare and social care staff in hospital or care homes and those providing care in a person’s home an attorney appointed under an LPA or an EPA, or a deputy appointed for the person by the court. MCA Code 14.23 These people may be guilty of an offence if they ill-treat or wilfully neglect the person they care for or represent. Penalties will range from a fine to a sentence of imprisonment of up to five years – or both. Code 14.24 These people may be guilty of an offence if they ill-treat or wilfully neglect the person they care for or represent. Penalties will range from a fine to a sentence of imprisonment of up to five years – or both. Code 14.24

18. Sanctions May be guilty of an offence if they ill-treat or wilfully neglect the person they care for or represent. Penalties will range from a fine to a sentence of imprisonment of up to five years – or both. Code 14.24

19. Ill treatment and neglect For a person to be found guilty of ill treatment, they must either: have deliberately ill-treated the person, or be reckless in the way they were ill-treating the person or not. It does not matter whether the behaviour was likely to cause, or actually caused, harm or damage to the victim’s health. Code of Practice point 14.25 The meaning of ‘wilful neglect’ varies depending on the circumstances. But it usually means that a person has deliberately failed to carry out an act they knew they had a duty to do. Code of Practice point 14.26

20. Mental Capacity Act 2005 Section 44 DATA PROVIDED IN THIS SLIDE ARE THE NUMBER OF CHARGED OFFENCES Total in this year 2010 - 2011 to date: Nationally : 36. East Midlands Region: 0.

21. Summary – How does the MCA support the safeguarding agenda? Protects individuals who are unable to make decisions for themselves: Legal framework for making decisions Obligation to consult Presumption of capacity/ the principles/two stage test/best interests Key safeguards: Court of Protection Public Guardian Statutory right to advocacy for the most vulnerable – the IMCA Deprivation of liberty safeguards Criminal offence

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