Brief Guide to The Mental Capacity Act and Deprivation of Liberty Safeguards

What is the Mental Capacity Act The Mental Capacity Act 2005 provides a statutory framework for people who lack capacity to make decisions for themselves, or who have capacity and want to make preparations for a time when they may lack capacity in the future. It sets out who can take decisions, in which situations, and how they should go about this.

Who does the Act Apply to The Mental Capacity Act applies to all adults and young people in England and Wales who are over the age of 16

What does The Mental Capacity Act do It makes sure people are given the right help and support to make their own decisions Gives a definition of a ‘person who lacks capacity’ and sets out a single clear test for assessing if someone has capacity to make a particular decision Provides a checklist to be used when making best interest decisions on behalf of someone who lacks capacity to make a particular decision

What does the Mental Capacity Act do Slide2 The Act provides protection to people who provide care or treatment for someone who lacks capacity to consent to the action being taken Provides people with the option to make a Lasting Power of Attorney for Property and finance and or health and welfare decisions Establishes a new Court of Protection which can make decisions or appoint a decision maker on behalf of a person who lacks capacity to make certain decisions for themselves Establishes the role of the Independent Mental Capacity Advocate, to advocate on behalf of vulnerable people who lack capacity to make decisions for themselves

What does the Mental Capacity act do slide 3 Explains what an advanced decisions to refuse treatment is Establishes the new Office of the Public Guardian

What is the Mental Capacity Act Code of Practice and who needs to follow it. The Mental Capacity Act Code of Practice provides guidance and information about how the Act works in practice for anyone who is working with and/or caring for adults who may lack capacity to make decisions. The Code has statutory force, which means that certain categories of people have a legal duty to have regard to it when working with or caring for adults who may lack capacity to make decisions for themselves.

People who must have regard for the Code of Practice An attorney under a Lasting Power of Attorney A deputy appointed by the Court of Protection An Independent Mental Capacity Advocate Anyone acting in a professional capacity for or in relation to a person who lacks capacity to make specific decisions Anyone who is being paid to undertake acts in relation to someone who lacks capacity to make specific decisions However, the Act applies more generally to everyone who looks after, or cares for someone who lacks capacity to make particular decisions for themselves.

The Mental Capacity ACT 2005 Five Statutory Principles:- 1)A person must be assumed to have capacity unless it is established that they lack 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)Before the act is done, or the decision is made, regard 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.

Assessing Capacity key points:- Capacity assessments are decision specific Assessments of capacity should only be done at the time they need to be done and if possible at a time when the person is most able to evidence capacity. Judgements on capacity should not be made on basis of age, appearance, condition or an aspect of their behaviour.

Capacity Assessments key points cont’ All steps must be taken to assist someone to make decision for themselves The person must be given all the relevant information they need to make a decision in a way that they are most likely to understand. Capacity assessments must be recorded clearly in notes and referenced in care plans

Capacity Test Stage 1:- Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? Stage 1 requires proof that the person has an impairment of the mind or brain, or some sort of disturbance that affects the way their mind or brain works (this impairment or disturbance may be permanent or temporary) If they do not have such an impairment or disturbance a person will not lack capacity in the meaning of the Mental Capacity Act (MCA)

Some examples of an impairment or disturbance of the Mind or Brain:- Some forms of mental illness Dementia Significant Learning disabilities The long-term effects of brain damage Physical conditions that cause drowsiness, loss of consiousness Delerium Concussion following a head injury The Symptoms of Alcohol or drug use

Capacity Test Cont’ Stage 2 A person is unable to make a decision if they cannot do one or all of the following:- 1)Understand information about the decision to be made ( the Act call this the ‘relevant information’ 2)Retain the information in their mind (long enough to make the decision) 3)Use or weigh that information as part of the decision-making process 4)Communicate their decision (by talking, using sign language or any other means)

Who can assess a person’s capacity? Anyone can assess someone’s capacity to make a specific decision, it does not have to be done by a professional such as a Doctor or Social Worker. However there may be some more complex decisions where having a person with specialist knowledge or skills may be helpful in assessing capacity e.g. a speech and language therapist may be able to assist if a person has communication difficulties.

What happens if a person lacks capacity to make a decision? If you have established that someone lacks capacity to make a specific decision then someone will need to make the decision for them. In the Act this person is known as the decision maker. The decision maker will probably be the person most directly involved in a persons care. For more complex decisions a professional might be needed to make the decision e.g. for medical treatment decisions the decision maker will be the doctor responsible for the person’s care. Any decision made on behalf of a person who lacks capacity to make a decision for themselves, must be made following a best interest decision making approach.

How to make a decision following the best interest decision making approach Key Points:- Encourage the person to participate in decision Find out what the person’s views are now and before they lost capacity, consider behaviour, habits, beliefs and values (e.g. religious, cultural, moral or political) Check if there are any advanced decisions Gather all relevant information Consider if person may regain capacity, if so can the decision wait Avoid discrimination, do not make assumptions about someone’s best interests simply on the basis of the person’s age, appearance, condition or behaviour If the decision concerns life-sustaining treatment do not be motivated in any way by a desire to bring about the person’s death, do not make assumptions about the person’s quality of life.

Best Interest decision key points Cont’ Consult others:- Enduring Power of Attorney or Last in Power of Attorney Court Pointed Deputy Family members Close friends Carers GP Other professionals involved in persons care Independent Mental Capacity Advocate If necessary consider holding a best interest meeting In making the decision always consider options that are as least restrictive as possible and as close as possible to person’s wishes Record the process you have gone through and who was involved. Review decisions regularly

Do Not Attempt Resuscitation decisions If as a clinician you think that it would not be appropriate for a person to be given resuscitation and you wish to put a DNAR note on their file you should do the following:- Consider if the person in question has capacity to make a decision about this issue for themselves. If the person does have capacity to make this decision for themselves you must discuss it with them. Remember you have a legal duty to inform someone if you have put a DNAR on their file If the person does not have capacity in relation to this matter you should discuss with their family, any Donee under an LPA for health and Welfare or any court appointed deputy about what is in this persons best interests before a decision is made You should establish if the person has made an advanced directive on this matter and consider their previous wishes if they are known A decision in relation to DNAR should not be made simply on the basis of a person’s age, appearance, condition or behaviour Do not make assumptions about the person’s quality of life

What are Deprivation of Liberty Safeguards? Deprivation of Liberty Safeguards are a legal framework designed to offer protection to vulnerable people who lack capacity to make decisions in relation to their care and treatment who may as a result of the care and treatment being provided for them be under a level of restriction that amounts to a deprivation of their liberty

Why do we need to have Deprivation of Liberty Safeguards The Deprivation of Liberty Safeguards were introduced as an amendment to the Mental Health Act in 2007 because a case known as the Bournewood case (HL v the United Kingdom) identified that the use of ‘Common Law’ to hold a person who lacked capacity to make decisions about where they should be accommodated in a psychiatric unit was unlawful as it breached Article 5 of the European Convention on Human Rights, which is enshrined in UK law through the Human Rights Act 1998

What is Article 5 of The ECHR ARTICLE 5 Right to liberty and security 1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (a) the lawful detention of a person after conviction by a competent court; (b) the lawful arrest or detention of a person for noncompliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law; (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; (d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; (e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1 (c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. 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. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

Who does Deprivation Of Liberty Safeguards apply to Deprivation of liberty safeguards apply to adults aged 18 and above residing in registered care/nursing homes or hospitals, who lack capacity to make decisions about where they live and the care and treatment they need and the decisions made on their behalf are so restrictive that they amount to a deprivation of liberty.

How do we decide if someone is deprived of their liberty? In deciding if someone is deprived of their liberty we need to apply the ‘Acid Test’ which is:- 1)Is the person subject to continuous supervision and control? (all of these factors are necessary) 2)Is the person free to Leave? (even if the person is allowed out on their own consider if you would expect them to return and take steps to find them if they did not, would you allow them to leave and choose to live somewhere else) See also recent Law Society Guidance : ‘Identifying a deprivation of liberty: a practical guide’

What is involved in the Deprivation of Liberty Safeguards process? The Deprivation of Liberty Safeguards process involves six assessments to be completed. These are: Age assessment (conducted by a Best Interest Assessor [BIA]) No refusals Assessment (conducted by a Best Interest Assessor) Mental Capacity Assessment (conducted by a Mental Health Assessor or BIA) Mental Health Assessment (conducted by a Mental Health Assessor) Eligibility assessment (conducted by a Mental Health Assessor or BIA) Best interest assessment (conducted by a Best Interest Assessor) Once these assessments are completed the local authority will decide based on these assessments if a Standard authorisation should be granted. If the person the authorisation relates to or other interested parties object to this then an appeal can be made to the Court of Protection.

What do you do if you think someone in your care lacks capacity and you feel they are deprived of their liberty? Complete DoLS referral form 1 to grant yourself a 7 day urgent authorisation and to request a Standard Authorisation Send form by fax to the Local Authority DoLS team, fax no (N.B. if the person was placed in your care by a local authority outside of Herefordshire you need to send the form to their DoLS team) The DoLS team will then triage the referral to decide how urgent it is (the more information you can provide on the form more accurate the triaging will be) The DoLS team will allocate a Best Interest assessor and Mental Health assessor to come and assess the person as soon as practical. Once the person has been assessed and the assessor’s reports are complete the Supervisory Body (Local Authority) will decide if an authorisation is granted and inform you of the outcome. If an authorisation is made you will be sent a copy of the authorisation form including information about any conditions that you are expected to meet and the length of the authorisation. If an authorisation is due to come to an end you must complete a form 2 in plenty of time before it comes to an end to request a further authorisation.

What about people in community settings who may be deprived of their liberty? Deprivation of Liberty safeguards do not cover people who may be deprived of their liberty in community settings such as supported living environments or a person’s own home. If it is thought that a person in the community is under restrictions as part of a care package that amount to a deprivation of liberty then the agency responsible for commissioning that care package need to make an application to the Court of Protection to ask them to authorise the deprivation of liberty.