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MCA/DOLS Update Mental Capacity Act & Deprivation of Liberty Safeguards. Everyone who works with people who lack capacity is legally required to work within the Mental Capacity Act and have regard to the Code of Practice. GROUP EXERCISE Good Medical Practice in Action. 11 Key MCA messages.
Good Medical Practice in Action
1. Always start from an assumption of capacity
2. Capacity is time specific and decision specific
3. People with mental health problems, dementia, learning disabilities often maintain the capacity to make some decisions for themselves
4. We must encourage, assist and support people to make their own decisions if possible.
5. If it is likely that the person may regain capacity we must consider whether the decision can wait.
6. Can the person understand, retain & use and weigh up the relevant information and communicate their decision? If so, they have capacity.
8. It is not just mental illness & learning disability that impair capacity. Other examples include:
brain injury, physical illness, substance abuse, shock, side effects of medication.
10. If the person is found to lack capacity we must consult other people e.g. family, friends, carers.
11. Refer to the Mental Capacity Act Code of Practice for any questions you have. It’s a great book!
HL v UK v ECHR (2004) …
Hospital July 1997
December 1997 following Court
of Appeal ruling
The European Court of Human Rights (ECtHR) and UK courts have indicated that the following factors can be relevant to identify deprivation of liberty (not exclusive, may change with case law):
Whenever anyone make a best interests decision
If a decision has to be made on behalf of a person
who lacks capacity it should be made collaboratively
Examples of restraint
Force or restraint being used to admit a person
Proportionate restraint being used to administer a necessary blood test
Needing to distract/persuade someone away from a door when they are sometimes asking to leave
Preventing a person from going out with relatives
An individual being prevented from leaving a unit unescorted
Having to frequently prevent someone from leaving when they object to being there
Keeping someone under constant supervision
Proportionate restraint being used to return a person who has left a unit & is walking confused & unsafe in a busy road
Only allowing visiting at certain times
A person being unable to maintain social contacts
Giving a person covert medication in their own best interests when they lack capacity & are refusing to take tablets
Staff exercising complete control
N.B. ‘Proportionate restraint’ is the least amount of force for the shortest possible time
“ Before any act is done or decision made
regard must be had to whether it can be
achieved in a way that is less restrictive of a
person’s rights and freedom of action”
A) Hospital or care home managers identify those at risk of deprivation of liberty & request authorisation from supervisory body
In an emergency hospital or care home can issue an urgent authorisation for 7 days while obtaining standard authorisation
B) Assessment commissioned by supervisory body. IMCA appointed for unbefriended
No Refusals assessment
Mental health assessment
Mental capacity assessment
Best interest assessment
Authorisation expires and Managing authority requests further authorisation
All assessments support authorisation
Any assessment says no
E) Best interest assessor recommends person to be appointed as representative
D) Best interest assessor recommends period
C) Request for authorisation declined
Person or their representative appeals to Court of Protection which has powers to terminate authorisation or vary conditions
F) Authorisation is granted and persons representative appointed
G) Authorisation implemented by managing authority
Managing authority requests review because circumstances change
Person or their representative requests review
CQC will look at documents and records of
applications and authorisations and may want