Mental Capacity Act 2005 Briefing

1. Mental Capacity Act 2005Briefing Welcome 20th March 2012 Neil Lee

2. Mental Capacity Act 2005Briefing • House Keeping • Group Agreement • Icebreaker

3. Overview of the Course • What 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) • DOLs • How it links into advanced decisions, (LPAs) Lasting Power Attorneys, Court of Protection & Public Guardian • The role of Independent Mental Capacity Advocates (IMCAS) • Useful sources of information • Conclusions

4. What is the MCA? • Provides a framework to protect those who lack capacity to make decisions for themselves • Puts existing good practice, as recognised in common law, into a legal framework • Applies to all people over the age of 16 • Affects all carers in all settings, wherever they may be • Came into force between April and October 2007 • Puts needs and wishes of a person who lacks capacity at the centre of any decision making process • Code of Practice

5. MCA in a nutshell Person makes choices themselves Autonomous decision-making Supported decision-making Substitute decision-making Should always be heading this way Person is involved but has help to make choices Others make choice for the person

6. 5 key principles • A person must be assumed to have capacity unless it is established that he lacks capacity’ • ‘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’ • ‘A person is not to be treated as unable to make a decision merely because he makes an unwise decision’ • ‘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’ • ‘The act or decision is to be achieved in a way that is less restrictive of a person’s rights and freedom of action’

7. 5 key principles (cont) In plain English this means: • Assume capacity • Enable capacity • An ‘unwise’ decision does not automatically mean lack of capacity • Decisions made for others must be in their Best Interests • Use the least restrictive alternative

8. Why we need the Act – who it affects • It is an issue that could potentially affect everyone • Up to 2 million people in England and Wales lack mental capacity to make some decisions for themselves • Up to 6 million family and unpaid carers, and people involved in health and social care who may provide care or treatment for them

9. Why we need the Act – who it affects (cont) Many people with the following: • Dementia • Learning disability • Brain injury • Severe mental illness • Temporary loss of capacity - unconscious, affects of alcohol or drugs, trauma, severe phobia, delirium • Anybody acting in connection with a person who may lack capacity • Anyone planning for the future

10. What is mental capacity? • Mental capacity is the ability to make a decision • Capacity can vary over time • Capacity can vary depending on the decision to be made • Physical conditions, such as location, can affect a persons capacity • Staff must not assume a lack of capacity because of a person’s age, physical appearance, condition or an aspect of their behaviour • Refers 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

11. Triggers Staff 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?

12. Triggers - how to assess capacity Carry 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

13. 4 stage assessment • To 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)

14. Support for someone to make a decision? • 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 • 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 options • Consult with family and care staff on the best way to communicate • Make the person feel at ease and don’t rush

15. 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

16. Break

17. Best interests Any 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

18. 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

19. Acting lawfully Section 5 of the MCA provides protection from liability provided that all the 3 MCA requirements are met (3 R’s) • Reasonable steps are taken to establish whether the person lacks capacity for the decision • Reasonably believe that the person lacks capacity and provide the evidence • Really believe that you have acted in the persons best interest

20. 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

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

22. 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

23. 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

24. Deprivation of Liberty Safeguards The Bournewood Case • This 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

25. The Bournewood Case • A man (unnamed) with learning disabilities who could not speak became upset and started self harming when attending a day centre • He was taken to Bournewood hospital and kept there. His carers were told they could not visit him • Doctors 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

26. Deprivation of Liberty Safeguards • The 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

27. Deprivation of Liberty Safeguards • Managing Authority – Hospital / Care Home • Supervisory Body – PCT / Local Authority • Authority to deprive a person of their liberty • Assessments – 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

28. Deprivation of Liberty Safeguards • Hospitals 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

29. 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 old • An individual can be an attorney for more than one person • Staff should NOT normally act as attorneys

30. Enduring Powers of Attorney • Established 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

31. 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 Court • LPA is granted by the person

32. Advanced Decisions • An 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

33. 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

34. The Court of Protection and The Public Guardian The MCA introduces two new bodies: • The Court of Protection • Office of the Public guardian

35. 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 valid • Remove Deputies or attorneys who fail to carry out their duties • Hear cases concerning objections to register an  LPA or EPA and make decisions about whether or not an LPA or EPA is valid

36. The Role of the Public Guardian • Keeps a register of Lasting Powers of Attorney and Enduring Powers of Attorney • Monitors attorneys • Receives reports from attorneys and deputies • Keeps a register of orders appointing deputies • Supervisors deputies appointed by the court • Directs Court of Protection visitors • Provides reports to the court • Deals with enquiries and complaints about the way deputies or attorneys use their powers • Works closely with other agencies to prevent abuse

37. 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

38. 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 action • Obtain a further medical report, if required • Prepare a report (that the decision maker must consider)

39. 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

40. New criminal offences of ill-treatment or wilful neglect New offences apply to: • People who have the care of a person who lacks capacity • An attorney under a Lasting Power of Attorney • A deputy appointed by the Court Criminal offences can result in a fine and/or a sentence of imprisonment of up to five years

41. Useful information • Books available: Tel 02380878038 or 02380528324 • www.dca.gov.uk/legal-policy/mental-capacity/publications.htm

42. Conclusion • MCA – 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

43. 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

44. 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

45. Mental Capacity Act Briefing • Any questions • Evaluations & Certificates

46. “The great end of learning is not knowledge, but action”Peter Honey Neil Lee 07753283048 neilleetraining@gmail.com Thank you