Self Neglect and the Mental Capacity Act

Safeguarding Adults Local Authorities have a duty to make, or cause to be made, enquiries in cases where they reasonably suspect that an adult with care and support needs is experiencing, or is at risk of, abuse or neglect, and, as a result of those needs, is unable to protect themselves from this actual or risk of abuse and neglect (Care Act S.42) The objective of a Safeguarding Adults Board is to help and protect adults in its area (Care Act, S.43)

The Six Safeguarding Principles Empowerment: people being supported and encouraged to make their own decisions and give informed consent Prevention: it is better to take action before harm occurs Proportionality: the least intrusive response appropriate to the risk presented Protection: support and representation for those in greatest need Partnership: local solutions through services working with their communities – communities have a part to play in preventing, detecting and reporting neglect and abuse Accountability and transparency in safeguarding practice

The Mental Capacity Act About empowerment and protecting people from unwarranted intrusion into their private lives Underpinning ethos that adults should be free to live their lives in the way that they choose wherever possible – however unwise we think they might be – and to be supported in making their own decisions However, also there to protect those people who are unable to make decisions for themselves and to provide a decision making framework that works for the individual’s best interests

5 Principles Assumption of capacity Obligation to give all reasonable assistance to make our own decisions Unwise decisions do not equate to a lack of capacity All decisions made on an incapacitated person’s behalf must be in their best interests Always look for less restrictive interventions

Independence v Protection respect for autonomy v neglect House of Lords committee in 2014 critical of ‘prevailing professional cultures of risk aversion & paternalism that inhibit the aspiration of empowerment’ critical of how the presumption of capacity is sometimes used to avoid difficult situations and can be used to support non-intervention in situations where vulnerable adults are then exposed to harm Self-neglect & hoarding often poses particularly difficult challenges in getting the balance right

Whose Interests? Often competing interests and pressures to intervene Neighbours Family Professionals Media

Mental Capacity Act Doesn’t give answers to very complex questions about what to do Does provide a framework within which to wrestle with dilemmas Does provide a legal basis for decisions about how to intervene (or whether to intervene at all)

Legal Basis for Action Agencies must have a legal basis for intervening in someone’s life ‘The ordinary powers of a local authority are limited to investigating, providing support services, and where appropriate referring the matter to the court. If a local authority seeks to regulate, control, compel, restrain, confine or coerce it must, except in an emergency, point to specific statutory authority for what it is doing or else obtain the appropriate sanction of the court’ (Judge Peter Jackson) Informed consent (with capacity) Mental Capacity Act (without capacity) – including the Court of Protection Other legislation if appropriate Mental Health Act Environmental Health Housing legislation Police powers

Mental Health Act (regardless of the person’s capacity) S2/S3/S4 – detention in hospital (no power of entry) S115 – right to enter & inspect any premises (other than a hospital) in which a mentally disordered patient is living, if he has reasonable cause to believe that the patient is not under proper care (no power of entry), but refusal is an offence under S129 S135 – warrant to gain access to a property and, if thought fit, remove the person to a place of safety with a view top making an application under the Act or making other arrangements for his treatment or care Only if there is reasonable cause to suspect the person is suffering from mental disorder &, if living alone, is unable to care for himself

Police Power of Entry S17(e)Police and Criminal Evidence Act A constable in uniform may enter and search any premises for the purpose of saving life or limb or preventing serious damage to property. (common law power of entry to deal with or prevent a breach of the peace) Can only be used in situations of immediate risk of harm

Assessing Capacity Standard test of capacity Impairment of or disturbance in the functioning of the mind or brain prevents the person making a decision Understand relevant information Retain information Use & weigh information to come to a conclusion Communicate that decision

Impairment or Disturbance in the functioning of the mind or brain There must be one for the person to lack capacity Not necessarily a formal diagnosis Must have a reasonable belief that it is there Be clear what the evidence is Causal Nexus The inability to make a decision must be caused by the impairment/disturbance Be clear what the link is

Decisional v Executive Capacity Often an issue with people who self neglect Situations where a person seems to agree something needs doing but is unable to implement the actions necessary Interesting discussion to be had, as the MCA test doesn’t mention ability to put decisions into practice BUT the person’s ability to appreciate the difficulties they have with acting must be part of the capacity assessment Usually relevant in the understanding & using and weighing aspects

What if someone doesn’t want to engage in an assessment? Take your time Be creative in how you gather evidence Share the responsibility Ultimately, the decision simply has to be reasonable, even if based on less information than is ideal Refusal to participate may indicate a lack of capacity (but be careful!) Wandsworth CCG v IA and TA  [2014] EWHC 990 (COP)

Person With Capacity MCA has no jurisdiction and intervention using it is not possible Look at other legal avenues for action Even if no action is possible, still need a plan to address situation Record carefully – including plans for reassessment

Person Lacking Capacity Best Interests Decisions enable actions to be taken without the person’s consent Check for LPA or Deputy with authority to give consent Follow usual B.I process to decide on best way forward Don’t Forget: Person’s wishes, feelings & beliefs are still important Be clear about probable impact of interventions Doesn’t give carte blanche to do whatever we want! Significant intervention may need an application to the Court of Protection

Key Points in Best Interests involve the person as much as possible Consult widely (IMCA or other advocacy?) be clear about the options being offered evidence based decision-making use the balance sheet approach to highlight the pros & cons highlight issues of ‘magnetic importance’ record carefully review

(the MCA) is sometimes used to support non-intervention or poor care, leaving vulnerable adults exposed to risk of harm (House of Lords Scrutiny Committee, 2014) ‘What’s the point of making someone safer if all we do is make them miserable?’ (Sir James Munby)