servants not masters mental capacity act conference mental capacity act team

Servants not masters

Mental Capacity Act Conference

Mental Capacity Act Team


• Mobile Phones / taking calls• Fire Alarm• Smoking• Breaks• Feedback

House keeping


Aims and Objectives

Assessing Capacity• An understanding of the process of assessing capacity and the thresholds for decisions • The practical skills needed to assess capacity• How to ensure appropriate record keeping

Best Interest Decisions• An understanding of the process of making Best Interest Decisions• Who needs to be involved in Best Interest Decision making• The practical skills needed to assess Best Interests• How to ensure appropriate record keeping

Deprivation of Liberty Safeguards• Depending on which sector you are in, you will have an understanding of what Deprivation

of Liberty Safeguards is • Your role, what information is needed and the tools and contacts to complete this whether

that is applying for a Deprivation of liberty Safeguards or going to the Court of Protection.


Morning Session

09.00 - 09.15 - Sign in and tea and coffee

09.15 - 09.30 – Welcome and Introduction

09.30 - 10.20 - Assessing Capacity

10.20 - 11.10 - Best Interests

11.10 - 11.20 - Break

11.20 - 12.20 – Deprivation of Liberty Safeguards

12.20 - 12.30 - Summing up and Conclusion


Assessing Mental Capacity Workshop

MCA Team

County Hall, Dorchester


• An understanding of the process of assessing capacity and the thresholds for decisions

• The practical skills needed to assess capacity

• How to ensure appropriate record keeping

Aims and Objectives


Five Statutory Principles of the Mental Capacity Act

1. A person must be assumed to have the capacity unless it is established that they lack capacity.

2. A person is not be treated as unable to make a decision unless all practicable steps to help him/her to do so have been without success.

3. A person is not to be treated as unable to make a decision merely because he/she 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/her Best Interests.

5. Before the act is done, or the decision is made, regards must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.


The role of the statutory principles?

The statutory principles aim to:

protect people who lack capacity andhelp them take part as much as possible, in decisions that

affect them.assist and support people who may lack capacity to make

particular decisions, not to restrict or control their lives.

• They apply to any act done or decision made under the Act.

• When followed and applied to the Act’s decision-making framework, they will help people take appropriate action in individual cases. They will also help people find solutions in difficult or uncertain situations.


The Standard Test for Capacity

• Does the person have an impairment of, or disturbance in the functioning of the mind or brain?

• Does the impairment or disturbance mean the person is unable to make a specific decision when they need to?

This doesn’t have to be a clinical diagnosis, it can be: • Permanent or temporary• Could be a result of illness • Drugs or alcohol • Injury • Condition such as Alzheimer's, brain injury or • Learning disability


To have capacity to make a decision a person must be able to:

1. Understand the information relevant to the decision (including the reasonably foreseeable consequences of making or not making the decision) and

2. Retain that information (long enough to make the

decision) and

3. Use or weigh the information (as part of the decision making process) and

4. Communicate the decision (in any recognisable way)


Failure on any one point means the person lacks capacity to make the specific decision


Who carries out Capacity Assessments?

There are no specific qualifications for assessing capacity.

It could be someone who knows the person well

•For example, a Social Worker, Doctor, Nurse, OT, Psychologist, Physiotherapist or Carer

•Where appropriate someone with specialist skills i.e. speech and language therapist

•The decision maker would need to be satisfied (on the balance of probability) that the person has or has not got capacity

The Court may require a specified professional such as a Doctor, Social Worker and Psychologist to do the assessment


• Knowledge of recent events

• An understanding of the decision that needs to be made and the reasonably foreseeable consequences, risks and benefits of the decision

• Know something about the person and the issues

• Use effective communication skills

• Be prepared for this to take time to do it properly

• Do your homework

What skills and knowledge do you need?


Capacity Assessment

Time specific

An Assessment of capacity must be time specific.

Does the person have capacity to make the decision at the time the decision needs to be made?

Decision specific

An assessment of capacity relates to a specific decision that has to be made and is not about a general ability to make decisions.


Emotional & Psychological Factors

• A depressed person, for example, may give little weight to the risk of death in not receiving treatment for a physical illness, because he/she does not put much value on carrying on living.

• A patient with anorexia may refuse treatment, not because they fail to understand the risk of death, nor because they want to die, but because they value remaining thin to such an extent that they would prefer to risk death, rather than put on weight.

• The MCA Code of Practice (4.2.2) briefly discusses anorexia and suggests that a person may have a ‘compulsion not to eat’ that is too strong to ignore and (by implication) that they therefore lack the ability to weigh up the information and so lacks capacity.


Common Questions

• What if a person does not know the reality of making a particular decision, for example to live in a Care Home when they have never lived in one before?

• How do you know if a person has really understood?

• What happens if someone gives different answers to the same decision at different times?

• What do you do if someone makes a decision and then forgets it half an hour later?


Common Questions cont’d

• What if a person understands risks and recognises the consequences of their decision but does not accept that it will actually happen to them?

• What if someone is in denial about their illness?

• What if their capacity fluctuates?

1. Use or weigh the information to make a decision (Degree of awareness and insight, evidence of reasoning processes).

Yes ☐ No ☐

2. Communicate the decision (To produce a response, not necessarily verbal that indicates choice, in any way recognised by the assessor).

Yes ☐ No ☐

Failure on any one point means the person lacks capacity at this time to make the decision outlined above. (If this is the case then a Best Interests decision must now be made using the statutory checklist (Section 4 MCA 2005)). Please detail any attempts to optimise understanding and maximise capacity here: i.e. providing relevant information to enable informed choices to be made, communicating in a appropriate way, making the person feel at ease; quiet environment, time of day and providing support etc.) Duty to consult people who know the person To assist in forming a balanced view, please list any people you have consulted and their relationship to the person as part of the assessment to form your view. Name Relationship From

Outcome of Capacity Assessment (please select one):

On the balance of probability, (more likely than not) the person

HAS CAPACITY ☐ / LACKS CAPACITY ☐

to make the decision required of them.

t Restricted

Adult and Community Services Mental Capacity Act 2005 Sections 2 & 3 Assessment of Mental Capacity (Form A)

This form should be completed where a person’s capacity to consent to or refuse health or social care intervention is in doubt.

Name of person: Date:

Name of assessor: Signed:

The health or social care issue that needs a specific decision:

I believe that the person has an impairment of, or a disturbance in the functioning of, the mind or brain which may affect their ability to make this decision. This is due to or appears to be due to:

Under each heading please select either Yes or No and record evidence to support your belief. On the date above and in relation to the decision, the person was able to:

1. Understand the information relevant to the decision Does the person have a general understanding of the decision they need to make and why they need to make it? (Including the reasonably foreseeable consequences of deciding one way or another, or of failing to make the decision).

Yes ☐ No ☐

2. Retain the information long enough to make a decision (The fact that a person is able to retain the information for a short period only does not prevent them from being regarded as able to make the decision).

Yes ☐ No ☐


Decision: Managing a diabetic diet…

Background: A Lady who has dementia likes to eat cake but doesn’t remember what she has eaten and is having 6 cakes a day. She has diabetes so this is bad for her kidneys and makes her drowsy.

What are the benefits and disadvantages of her eating cake?

Apply the 5 principles to the question.

Case Study - What is the health and social care issue that needs a decision?


Case Law – using and weighing

(KK v local authority 2012)

• “There is a real danger that in assessing KK's capacity, professionals and the court may consciously or subconsciously attach excessive weight to their own views of how her physical safety may be best protected and insufficient weight to her own views of how her emotional needs may best be met.”

• Someone may lack the capacity to understand and weigh up every nuance or detail, but do they understand the salient issues?


“Likewise, I consider her frank observation that "if I fall over and die on the floor, then I die on the floor" demonstrates to me that she is aware of, and has weighed up, the greater risk of physical harm if she goes home. It is not an unreasonable view to hold. It does not show that a lack of capacity to weigh up information. Rather it is an example of how different individuals may give different weight to different factors.”

“Whilst KK may have underestimated or minimised some of her needs, she did not do so to an extent that suggests that she lacks capacity to weigh up information.”


“I remind myself again of the danger of the "protection imperative" (identified by Ryder J in Oldham MBC v GW and PW ). These considerations underpin the cardinal rule, enshrined in statute, that a person is not to be treated as unable to make a decision merely because she makes what is perceived as being an unwise one”


We are not asked to be right,

we are asked to be reasonable.

We don’t have to be sure,

it simply has to be more likely than not that the person does or does not have capacity.

In Conclusion


P - Presumed capacity.

L - Least restrictive interventions.

U - Unwise decisions allowed. (If person has capacity for decision)

M - Maximising capacity.

B - Best Interests.

Can you identify what PLUMB stands for?


• An understanding of the process of assessing capacity and the thresholds for decisions

• The practical skills needed to assess capacity

• How to ensure appropriate record keeping

Aims and Objectives


Making Best Interests Decisions

MCA Team

County Hall, Dorchester


Aims and Objectives

An understanding of the process of making Best Interest Decisions

Who needs to be involved in Best Interest Decision making?

The practical skills needed to assess Best Interests

How to ensure appropriate record keeping


Can you remember the principles?





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


5. Before the act is done, or the decision is made, regards must be had to weather the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.


Quick fire best interest decisions

• Mable has been a life long vegetarian and but over the last couple of months has taken a liking to jelly babies which have a meat product in them. Mable has dementia and lives in care home.

• Her daughter is very unhappy about this and asks that she is stopped from eating jelly babies?

• What would you do?


Quick fire best interest decisions contd

• Mildred and George live at home, Mildred has dementia and George is her carer but he is physically quite frail. Mildred has always been for a walk every day but George is no longer able to go with her. They live in a rural area with no pavements.

• Should Mildred still be going out in this way on her own?


Quick fire best interest decisions

• Luke has a learning disability he lives in supported accommodation.

• His brother has recently got a tattoo and Luke would like to have one.

• Should he be prevented / allowed to have one?


Quick fire best interest decision making cont’d

• Peter has an acquired brain injury he lives in his own accommodation with support going in three times per day plus some support from his family.

• He goes out for a drink once a week to the pub where he meets up with friends. He tends to get very drunk, he will fall over, he has lost his wallet and been sick.

Should he be prevented from going out in this way?


What does the Act mean by Best Interests?

The term ‘Best Interests’ is not actually defined in the Act.

This is because there are so many different types of decisions and actions covered by the Act, and so many different people and circumstances are affected by it.

The Best Interests Checklist is a list of common factors that must always be considered by anyone who needs to decide what is in the best interests of a person who lacks capacity.

When working out what is in someone’s best interests decision makers must take into account all relevant factors that would be reasonable to consider not just what they think are important.

They must not act or make a decision based on what they would want to do if they were the person who lacked capacity.


Check list:

In determining what is in a persons Best interests the person making the determination must not make it merely on the basis of:

the persons age or appearance or a condition or aspect of his behaviour

The decision maker must consider all the relevant circumstances and he must consider whether it is likely that the person will at some time have/regain capacity and when?


The decision maker must take all reasonable and practicable to encourage the person to participate, or improve her ability to participate as fully as possible in decision making (Principle 2).

When the decision relates to life sustaining treatments the decision maker must not be motivated by the desire to bring about death.

Section 4: Mental Capacity Act Best Interests


You must consider, so far as is reasonably ascertainable:

the person’s past and present wishes and feelings (and in particular any written statements made by her when she had capacity)

the beliefs and values that would be likely to influence her decision if she had capacity

other factors that she would be likely to consider if she was able to do so

Section 4: Mental Capacity Act Best Interests


Doing what the person wants is vitally important

Most people still know what they want even if they don’t have capacity to understand the full consequences

If someone wants to do something then we should be facilitating it, if at all possible.

This should be our starting point and there have to be compelling reasons and evidence to do anything other than this.


The decision maker must take into account if it is practicable and appropriate to consult them, the views of:

anyone named by the person as someone to be consulted on the matter in question

anyone engaged in caring for the person or interested in his welfare

any donee of a lasting power of attorney granted by the person and

any deputy appointed for the person by the court, as to what would be in the persons Best Interests.

Any IMCA appointed to represent the person

Check list cont’d


You MUST consult!

You must still consult with people even if they hold views you don’t agree with or where there are difficult

relationships with professionals.


Exclusions from Best Interests Decisions× Consenting to marriage or a civil partnership× Consenting to a sexual relationship× Consenting to a decree of divorce on the basis of two years

separation× Consenting to a dissolution of a civil partnership× Consenting to a child being placed for adoption of making

an adoption order× Discharging parental responsibility for a child in matters

relating to the child’s property × Giving consent under the Human Fertilisation and

Embryology Act 1990× Mental Health Act matters (Section 28) × Voting on behalf of someone


For the avoidance of doubt, nothing in the Act is to be taken to affect the law relating to murder, manslaughter or assisting suicide.

Unlawful killing or assisting suicide (Section 62)

Form B ugly form Restricted

Adult and Community Services Mental Capacity Act 2005 Section 4 Best Interests Assessment (Form B)

This form should be used where the person lacks capacity to consent to or refuse significant health or social care interventions.

Name of person: Date:

The health or social care issue that needs a specific decision:

Medical treatment decisions Does the person have a valid advance decision to refuse treatment that relates to the above decision?

Yes ☐ No ☐

If Yes, then stop this assessment and follow the advance decision.

Is there a lasting power of attorney, deputy or Court of Protection order in relation to the decision?

Yes ☐ No ☐

If Yes, then best interest decisions will be made by these people or stated in the court order.

The statutory checklist (Section 4 MCA 2005) requires that the following issues are taken in to account, as far as reasonably ascertainable, in deciding best interests. Please tick each box to confirm you have given due regard to and give details as appropriate:

As far as reasonably practical, have you encouraged and permitted the person to participate in the decision? How so?

☐

The relevant circumstances (clinical opinion, history etc.): ☐

The person regaining capacity and if so, can the decision be delayed until then: ☐

The person’s past and present wishes and feelings (written or oral): ☐

The person’s beliefs and values that would be likely to influence the decision: ☐

Any other factors the person would take in to account: ☐

Where practical and appropriate, you must consult with and take account of the views of anyone previously named by the person as someone to consult with:

☐

Name(s) and view(s): Anyone involved in caring for the person: ☐

Name(s) and view(s): Anyone interested in their welfare (family, close relatives or existing advocate): ☐

Name(s) and view(s): An attorney named in a valid and applicable Lasting Power of Attorney or Deputy appointed by the Court of Protection:

☐

Name(s) and view(s):

An Independent Mental Capacity Advocate (IMCA). An IMCA must be appointed when serious medical treatment or a change in accommodation is at issue, and there is no-one else to support the person, other than paid staff. This is a statutory requirement subject to audit. Dorset Advocacy provide IMCAs and they can be contacted on 0845 3891762.

☐

IMCA view:

Have you considered less constrictive options that may be available in terms of the person’s rights and freedom of action? (List options considered).

☐

Reasonable Belief

Section 4(9) of the MCA 2005 confirms that if someone acts or makes a decision in the reasonable belief that what they are doing is in the best interests of the person who lacks capacity, then provided they have followed the checklist (above) they will have complied with the best interests principle set out in the Act. Guidance on good practice, when making significant best interests decisions on behalf of someone lacking capacity (for the relevant decision), recommends using a ‘balance sheet’ approach in weighing up the relevant factors ‘for and against’ any planned interventions. Medical aspects Not just the outcome, but what will be the burden and the benefit of the treatment? Welfare aspects How will this impact (for better or worse) on the way the person lives their life? Social aspects What will this do to the person’s relationships etc.? Emotional aspects How will this person fee or react? Ethical issues Are there any specific ethical issues that require separate consideration? Having regard to all of the above, please document below:

How the decision about the person’s best interests was reached Why the decision is in the person’s best interests Who was consulted to help work out best interests What particular factors were taken in to account Note any particular conflicts or disagreements regarding the decision. If there is an ongoing

dispute or disagreement with the person lacking capacity, or their family, over the best interests decision, then consideration must be given to whether the case should be referred to the Court of Protection (i.e. possible infringements of Article 8 ECHR ‘Right to Privacy and family life).

If there are less restrictive options available, give details and explain why these are not being implemented.

Decision maker

Name:

Position:

Signed:

Summary and outcome of Best Interests Assessment


Case Law from the Court of Protection 2014

Westminster City Council V Manuela Sykes

• Ms Sykes is by nature a campaigner and a fighter who has been involved in many moral, political and ideological battles in her life.

• Now aged 89 she is living with dementia.• In 2006 she made a living will prioritising the quality of life over prolongation. She

stated that she would wish to remain in her own home for as long as possible. She set up a LPA for Finances with a friend.

• October 2013 Detained Under Section 2 MHA• Self neglect, severe weight loss, unhygienic and hazardous living conditions,

wandering and not accepting of care.• December 2013 Discharged to a nursing home and Deprivation of Liberty

Safeguards applied. Her health improved. The LPA felt that she should be given the chance to go home but he thought that it would fail. There were concerns about the distress a failed trial at home may cause her.

• Application to CoP District Judge Eldergill supported her wish to return to her own home for a trial period. He acknowledged that the trial may well fail that’s the point of a trial.

• “the local authority should be her servant, not her master”Judge Eldergill 2014


Case Law

Essex County Council v RF & Ors (2015) • P 91 year old gentleman, retired civil servant, served as a gunner with

RAF has lived alone since 1998 with his cat Fluffy.• P has dementia and other health problems including mobility problems

and delirium and kidney injury caused by dehydration.• May 2013 P was removed from his home by the local authority and

placed in a locked dementia unit. It was clear that he lacked capacity at the time

• There was no evidence of a proper best interests decision• The local authority were ordered to pay £60,000 in damages to P in

compensation for illegally depriving him of his liberty.• If it had not been for the unlawful actions of the local authority P would

have continued to live at home with support arrangements in place.

Where was the quality and balanced best interest decision making?


• Gordon has an acquired brain injury and a diagnosis of COPD (Chronic Obstructive pulmonary disease)

• He was living at home but had several hospital stays due to reoccurring chest infections and pneumonia, he is now in a care home.

• Gordon is a lifelong smoker, in the care home he has continued to smoke outside in a wheelchair (assisted by the staff).

• His family don’t want him to smoke however they do concede he has been a life long smoker and when he knew what the risks were he didn’t care.

• Gordon lacks capacity to make a decision about smoking now.

What are the pros and cons of him smoking?

Who could be consulted? What do you conclude?

Case Study


Balance Sheet Approach

MEDICAL WELFARE SOCIAL EMOTIONAL ETHICAL

Advantages / Benefits





Disadvantages / Burdens Disadvantages / Burdens

Disadvantages / Burdens




Aims and Objectives

An understanding of the process of making Best Interest Decisions

Who needs to be involved in Best Interest Decision making?

The practical skills needed to assess Best Interests

How to ensure appropriate record keeping


Making Best Interests Decisions

Any Questions?


BREAK


Deprivation of Liberty Safeguards

MCA Team

County Hall, Dorchester.


Aims and Objectives

You will have an understanding of:

• Historical and Legal Context• What is a Deprivation of Liberty• Applying for a Deprivation of Liberty Safeguards


Not new

“No free man shall be taken or imprisoned or disseised of his freehold or liberties, or free customs, or outlawed, or exiled or any otherwise destroyed; ....but by lawful judgement of his peers, or by the law of the land.”

Magna Carta (1297)


Background and Context:

Where does the term deprivation of liberty

come from?

European Convention on Human Rights

(ECHR)


Article 5 Right to Liberty and Security of Person

Art 5(1) “No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law.......

(e) the lawful detentions of persons of unsound mind;”


Article 5 (4) Right to challenge detention

“Everyone who is deprived of his liberty by

arrest or detention shall be entitled to take

proceedings by which the lawfulness of his

detention shall be decided speedily by a court and his release ordered if the detention is not lawful.”


What is the purpose of Article 5?

To safeguard the rights of those who are the most vulnerable, so there can be no arbitrary detention.


Article 8 Right to respect for private and family life

1 Everyone has the right to respect for his private and family life, his home and his correspondence.

2 There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.


HL v the United Kingdom

• The case concerned an autistic man with a Learning Disability (HL)

• Lacked capacity to decide whether he should be admitted to hospital for a specific treatment.

• Admitted on an informal basis under common law under best interests

• Decision challenged by HLs carers• ECtHR held that this admission constituted a

deprivation of HLs liberty and further that it had not been in accordance with a procedure prescribed in law (article 5)1

• In contravention of Article 5(4) as no right of appeal


The ECrHR held that:

The DOLS had not been in accordance with a procedure prescribed by law and was therefore a breach of Article 5 (1) of the European Court of European rights

And

There had been a contravention of the Article 5 (4) of the ECHR because HL had no means of applying quickly to a court to see if the DOLS was lawful.


The Mental Capacity Act 2005 was amended to provide safeguards for people who lack capacity specific to consent to treatment or care in either a hospital or a care home that in their own best interests can only be provided in circumstances that amount to a deprivation of liberty and where detention under the mental health act is not appropriate for the person.

Deprivation of Liberty Safeguards Code of Practice, pg. 9


• An adult (P) with a Learning Disability living in a bungalow.

• Prompting and help with all activities of daily living, getting about, eating, personal hygiene and continence

• P requires intervention including restraint to stop him harming himself

• He is unable to go anywhere or do any thing without 1:1 support

• 89 hours a week of personal support

Examples were the Supreme Court decided the was a deprivation of liberty


• 17 year old (Q or MEG) with mild Learning Disabilities living with 3 others

• Occasional outbursts of aggression towards the other residents requiring restraint

• Prescribed tranquilising medication• She has 1:1 and sometimes 2:1 support• Accompanied by staff whenever she leaves• Attends a further education unit and has a full social

life• She shows no wish to go out on her own• She would be prevented from doing so in her best

interests.


• An 18 year old (P or MIG) with a moderate to severe Learning Disability

• She lives with a ‘foster mother’ (commonly called adult placement, or shared lives) whom she regards as ‘mummy’

• Her foster mother provides her with intensive support in most aspects of daily living.

• She has never attempted to leave the home by herself

• She attends a further education unit and is taken on trips and holidays by her foster mother

• She would be prevented from leaving if she attempted to do so in her best interests


Supreme Court Judgment

“The whole point about human rights is their universal character. [They] are to be guaranteed to everyone.

They are premised on the inherent dignity of human beings whatever their frailties or flaws....

It is axiomatic that people with disabilities, both mental and physical have the same human rights as the rest of the human race.”

Baroness Hale, 19th March 2014:


A Gilded Cage is still a cage

“It seems to me, what it means to be deprived of liberty must be the same for everyone, whether or not they have a disability. If it would be a deprivation of my liberty to be obliged to live in a certain place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must be a deprivation of liberty of a disabled person.

The fact that my living arrangements are comfortable, and indeed make my life as enjoyable as it could possibly be should make no difference.

A gilded cage is still a cage.”


Supreme Court Judgment – The ‘acid test’

Applies to everyone whatever the arrangements for their care and treatment, if the state has some involvement.

Does the person have capacity to consent to the

arrangements for their care or treatment?

- Is the person subject to continuous supervision

and control AND

- Is the person free to leave?

Baroness Hale, 19th March 2014:


It no longer matters:

• Whether the person objects to the restrictions upon them;

• The ‘relative normality’ of the placement• The reason or purpose behind any restriction

(enabling or not)

However, we still need to take into account individual circumstances and because of the extreme

vulnerability of this group, err on the side of caution.


Effect of the case law

The threshold for what is considered a deprivation of liberty has lowered significantly.

This means it is now likely to be the norm rather than the exception for people lacking capacity who are receiving support around the clock, in whatever setting.

Therefore this is going to affect many more of us!


Effect of the Case Law

Huge increase in people now being DoLS• in care homes and hospitals in 2013’14 we had 228,

in 2014’15 in excess of 3,000• Also in people outside of scope of the safeguards who

might be deprived of liberty and therefore......• There has been a huge increase in applications to the

Court of Protection to authorise a DoLS for people in Supported Living placements, shared lives, day care, extra care housing, their own homes and people who have respite.


How does this affect you?

Where a person is going into any environment where they may be deprived of their liberty, this needs to be considered by you in advance

Mental Capacity Assessments and Best Interest Decisions always need to be completed and documented before the move to ensure the action is compliant with the MCA

Less restrictive options must be considered fully and detailed in your report

If they fall outside the scope of the DoLS legislation, discuss with your line manager and then the MCA Team


How this affects you (Care homes and hospitals)?

A request can be made by care homes or hospitals up to 28 days in advance of the person moving there

AJ v a LA 2015 reinforced the need to consider an application in advance of a move

If there is any objection to the care plan from the person or their family their case must be heard in the court of protection (responsibility of the Local Authority or CCG).


Form 1

This is to be completed by the hospital, nursing home or care home.

This form grants a period of 7 days authorisation once signed by the managing authority (care home or hospital)

The MCA and DOLS team need to undertake the assessment within the 7 days


Form 1A

Request for an Extension

There may be circumstances when we cannot complete an assessment within the 7 days but due to the circumstances of the case we would want to keep this legal.

Then we may ask you to request an extension of a further 7 days (this can be done verbally or via email)


Form 2

Request for a further standard authorisation for a Deprivation of Liberty which has previously been authorised and is due to expire

This gives an update about what has happened to he person since the previous DoLS assessments


The DoLS Process

Best Interests Assessor will complete a form 3 which will confirm:•The person is over the age of 18•There are no advance decisions, LPA or Court appointed Deputies who appose the DoLS

The Best Interests Assessor will:•Consult widely, read the notes and written records and meet the person.•Make a decision as to whether the placement is in their best interests.


The Mental Health Assessor will complete a form 4 to confirm:

•That the person has a mental disorder that may impact on their decision making

•That they are eligible to be assessed under DoLS (and would not be more appropriately assessed under the mental health act) and

•They lack capacity to make the decision re their care, residence and treatment.


ConditionsThe DoLS can include conditions which must be met.

These conditions can only be within the power of the hospital or care home to action e.g. to ensure that P is given the opportunity to go out into the garden to feed the birds or X is given the opportunity to go to the shops with staff to buy their own toiletries.

However they can also make recommendations to the wider care team e.g. to carry out a review of medication.

If you cannot meet these conditions you need to contact the MCA Team ASAP


DOLS Representative

The Local Authority will always appoint a representative to the person deprived of their liberty.

Role:• Maintain contact with the person• Represent and support person in all matters relating to

the DoLS including if appropriate triggering a review, using the organisations complaint procedures on behalf of the person or making an application to the court of protection on behalf of the person

• The representative MUST make an application to the court of protection if the person objects to their care or treatment or the placement


Court of Protection

Everyone subject to a DOLS Authorisation has the right to appeal to the Court of Protection.

This is not a best interests decision and the right to appeal remains even if the person is the only one that doesn’t agree with the decision.

The Court of Protection will consider the evidence about the persons capacity, their best interests and the need to deprive them of their liberty.


Either:

• The Person themselves• The relevant persons representative• The Local Authority (the CCG if they fund the persons

care)

Who applies to the Court of Protection?


Most appeals against a DoLS Authorisation will be instigated by the person’s representative and DCC will be the respondent

This will always involve Legal Services, who will lead the court process

They will require:

- a recent capacity assessment

- a care plan (including needs assessment, risk assessment & Best Interests decision)

- a chronology giving an idea of how we reached the current situation


Coroners Guidance


Failure to act / getting it wrong• If people are unlawfully deprived of their liberty, they have a

right to compensation• Claims can be brought in existing CoP proceedings, Judicial

Review proceedings and claims in County Courts• Size of damages £3000 + for unlawful deprivation per month• Depending of the severity of the restraint could be £1000 a

minute…• Media interest in these types of cases is already high, so

wide reporting is possible• Hearing may be in public and the agencies involved may be

named• Reputational and financial risk

Most importantly people’s human rights are not being safeguarded and an independent check on the arrangements

for their care should be made.


• Be clear about what constitutes a deprivation of liberty

• Apply in advance (where possible)

• Include information about how urgent the situation is

• The Application process will be on line soon…

• Ring the MCA Team if you are not sure

In conclusion

Please tick if any of the following are applicable:

Person Objecting Other Person objecting High Level of Restriction/restraint

Unbefriended (i.e. no family or friends) Out of County


Aims and Objectives

You will have an understanding of:

• Historical and Legal Context• What is a Deprivation of Liberty• Applying for a Deprivation of Liberty Safeguards


Summing up………..


Aims and Objectives

Assessing Capacity• An understanding of the process of assessing capacity and the thresholds for decisions • The practical skills needed to assess capacity• How to ensure appropriate record keeping

Best Interest Decisions• An understanding of the process of making Best Interest Decisions• Who needs to be involved in Best Interest Decision making• The practical skills needed to assess Best Interests• How to ensure appropriate record keeping

Deprivation of Liberty Safeguards• Depending on which sector you are in, you will have an understanding of what Deprivation

of Liberty Safeguards is • Your role, what information is needed and the tools and contacts to complete this whether

that is applying for a Deprivation of liberty Safeguards or going to the Court of Protection.


Any Questions?


Thank you for coming.

Please complete an

evaluation form

online

Conclusion

servants not masters mental capacity act conference mental capacity act team

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