Mental Capacity Act & Deprivation of Liberty The Mental Capacity Act 2005 for England and Wales received Royal Assent on 7 April 2005 and came into force in Oct 2007. The Act generally only affects people aged 16 or over and provides a statutory framework to empower and protect people who may lack capacity to make some decisions for themselves.

What is the difference between the Mental Capacity Act 2007 and the Mental Health Act 1983? The Mental Capacity Act is about people who are unable to make decisions for themselves and not about detention or compulsory treatment.

What does lacking mental capacity mean? A person cannot do 1 or more of the following: Understand information given to them Retain information long enough to make decision Weigh up information to make decision Communicate their decision in any way.

What decisions can never be made on behalf of another person? Marriage, divorce, sexual relationships, adoptions, voting

The code of practice for the MCA As a professional/paid carer what do you have a legal duty to have regard to? The code of practice for the MCA

The 5 key principles of the MCA: 1 Must assume person can make decisions unless otherwise proven 2 Must support people as much as possible to make their own decisions 3 People have the right to make unwise decisions 4 Anything done for person must be in their best interests if they don’t have mental capacity 5 Anything done for person without capacity must be least restrictive

That they have the capacity to make the decision When a person in your care needs to make a decision there is always a first assumption? That they have the capacity to make the decision

When should you assess a person’s capacity to make a decision? decision specific i.e. each time a decision needs to be made

2 Stage Test to finding if a person lacks capacity Stage 1: Is there proof a person has an impairment of the mind? e.g. diagnosis of dementia, significant learning disability, delirium, unconscious Stage 2:Does the impairment mean they are unable to make the specific decision? i.e. cannot do 1 or more of slide number 3

Four things you have to do, to aid a person make their own decisions ·  Give person all relevant info ·   Help communicate by using different forms ·   Offer decision at different times of day Find out if there is any one else who can help communicate

Always Record: what the decision was why the decision was made how the decision was made – who was involved and what information was used.

Who else should be involved in assessing capacity? family, friends, carers, independent advocate

What is an Independent Mental Capacity Advocate (IMCA)? a specific type of advocate who will support the person where there are no un paid carers, a life changing decision has to be made and will be provided by local authority

What is a lasting power of Attorney and what types are there? A person designated by another who will make all decisions for them if they lack capacity in the future Personal welfare Property & affairs

What is an advanced decision? This allows the person to state what types of treatment they want if they lack capacity in the future.

Additional Resources Available: Code of Practice Mental Capacity Act Training set for Hospitals Mental Capacity Act Training set for Community Staff Mental Capacity Act Training set Core Principles Deprivation of Liberty Safeguards

Scenario A young lady of 19 years old with a severe learning disability is leaving school. She can communicate with facial expressions, showing if she is happy, sad, in pain or angry. Her parents want her to attend a local day centre but the social worker has offered direct payments so she can have her own support worker. What do you think should happen next?

Scenario You are caring for a person with a compulsion to eat constantly and everything they can get. They have diabetes and are severely obese. This persons doctor is very concerned for their immediate health. Can you stop them from eating?

Scenario A student would like to complete a case study on one of the patients/service users who has dementia. Should the student gain consent from the person? How does that student gain their consent?

Deprivation of liberty Bournewood safeguards

European Court of HR’s took Bournewood Hospital to trial: Man with LD was taken to secure hospital “in his best interests” Court found this was against Article 5 of Human Rights Act as he was deprived of liberty Man was not detained under Mental health Act so therefore unlawful detention

Safeguards put into place Amendment made to MC Act under Mental Health Act 2007 Came into force Oct 2008 Makes it unlawful to Deprive person of their liberty unless through the court of protection

If need to stop some one going out there are several options If person hasn’t got mental capacity and is compliant and in their best interest: Apply to Court of protection for Deprivation of liberty court order If person cannot make own decision but isn’t compliant then can be sectioned under mental health act Def of mental disorder now widened!

If apply for DOL: Inform LA may be problem LA assess if there is a case If case have 21 days to sort 6 Assessments must take place: eligibility (i.e. not MH), age (has to be over 18), mental capacity, mental health status, best interests, any lasting power of attorney – all done by specially trained people

Can only continue under MCA if: Lack Capacity Compliant Danger to themselves Danger to others goes under mental health act

Other issues: Can DOL for 7 days in an emergency No definition of Deprivation of liberty Can restrict liberty if in best interest without court order (can also restrain) Assessments should look at: how often movements restricted? Can they get out if they ask? Are they watched continuously? Are they threatened by police if they do go out?

Other issues Care Managers will have duty to report DOL of current s/u’s Care Managers have to assess DOL of future s/u’s before accept into their care DOL lasts up to 3 years but has to be reviewed regularly Mangers have duty NOT to DOL where ever possible

Guardianship Can be applied for by family & LA if person lacks capacity Guardian can then authorise DOL but they will be taken to court if not in the persons best interests NOK have no rights under MCA, only consultation