The Mental Capacity Act and Self-Neglect Tim Shearn AMHP, MCA & DOLS Team Manager Bath and North East Somerset Council

Aims of the Session To examine the use of the Mental Capacity Act (MCA) in cases of self-neglect, in particular looking at the challenges and complexities this can present. Look at the application of the MCA via a case study.

Mental Capacity Act (MCA) 2005 Provides a legal framework in which to make decisions on behalf of those unable to make decisions themselves. It is an ENABLING piece of legislation designed to PROMOTE people’s rights and encourage their PARTICIPATION in any decisions to be made. It should PROTECT individuals from arbitrary decisions and make professionals accountable

The Principles of the MCA A person must be assumed to have capacity unless it is established otherwise A person is not to be treated as unable to make a decision unless all practicable steps to help him 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.

The Principles of the MCA An Act done, or decision made, must be done or made in the person’s Best Interests Before the act is done, or decision made, regard must be had to whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of the persons rights and freedom of action.

The Statutory Test of Capacity Diagnostic Test – Does the person have an impairment of, or a disturbance in the functioning of their mind or brain? Functional Test - Does this impairment mean the person is unable to make the specific decision when they need to? Their needs to be a clear link between the two.

The Statutory Test of Capacity 1. Understand the information relevant to the decision. 2. Retain that information. 3. Use or weigh that information. 4. Communicate their decision by any means possible.

Mental Capacity Act (MCA) 2005 When thinking about the MCA in cases of self-neglect, we should ask ourselves the following – WHY? WHAT? WHEN? WHY IS IT IMPORTANT? Poor assessment of capacity, and implementation of the MCA, has been a feature frequently highlighted in self-neglect case reviews. A person’s capacity in cases of self-neglect can often be less clear cut than it may first appear. The MCA may provide a legal basis for intervention and safeguarding the individual.

Mental Capacity Act (MCA) 2005 WHAT SHOULD WE BE DOING? Obviously assessing capacity and taking a defensible view! Gently challenging people’s choices and exploring why they are making them. Empowering and supporting individuals to make their own choices but not leaving them vulnerable. WHEN SHOULD WE BE DOING IT? Assessing capacity should be a starting point in cases of self-neglect. Should be on-going and subject to review.

MCA Challenges in Self-Neglect Cases Being clear about the decision you’re asking P to make – there could be multiple issues in cases of self-neglect which may change over time. Making a distinction between a person who lacks capacity and a person making an ‘unwise’ decision (Principle 3) – the so-called ‘lifestyle choice’.

MCA Challenges in Self-Neglect Cases Avoiding the over reliance on principle 1 - the presumption of capacity - this was highlighted by the House of Lords Select Committee (2014) - ‘We were told of a worrying tendency among local authorities to use the presumption of capacity to avoid taking responsibility for a vulnerable person’. ‘In some cases the evidence suggests the principle has been deliberately misappropriated…’ House of Lords post legislative scrutiny – paragraph 63.

MCA Challenges in Self-Neglect Cases Balancing the rights and freedoms of individuals against the need to intervene – even when P lacks capacity, this is not an ‘off-switch’ for their rights and freedoms. The need to ensure the individual’s voice is heard.

MCA Practice in Cases of Self-Neglect Establishing the capacity of a person to decide about the help/support they receive in cases of self-neglect should be a priority. It is a vital component in how we understand and respond to cases of self-neglect. Being aware that a person’s capacity can change and fluctuate over time – consideration of how the effects of self-neglect may impact on this.

MCA Practice in Cases of Self-Neglect The capacity assessment needs to be a ‘living document’ subject to regular review – a consistent & shared approach? Capacity assessments should be robustly recorded and updated with sufficient evidence provided for the conclusion reached. An exploration of the difference between an inability to protect oneself from the effects of self-neglect (lack of capacity?) and unwillingness to seek help (unwise decision?) may need to be demonstrated.

MCA Practice in Cases of Self-Neglect Part of the capacity question must be consideration of how the person found themselves in their current situation – take account of the person’s history and background and how this may impact on their capacity. There is a need to be open and honest with individuals. Don’t be afraid to challenge people about the decisions they made and why. Be confident! When making best interest decisions for those that lack capacity, ensuring any interventions are proportionate and least restrictive taking account of the risks presented by the self-neglect. Include family, friends and carers – take account of their views.

MCA Practice in Cases of Self-Neglect There may be cases where P has no difficulty in making a reasoned decision but is unable to judge when they should put that decision into action – often referred to as ‘executive capacity’. This could be the reason for on-going self-neglect and should be considered where appropriate. The need to have a legally literate workforce, suitably trained who are supported and confident in making legally defensible decisions in cases of self-neglect.

A Final Thought…. In cases of self-neglect practitioners need to be KNOWING, DOING and BEING! KNOWING – their legal frameworks, the Mental Capacity Act, when and how to apply it. DOING – the assessments in a timely manner. BEING – brave and pro-active in safeguarding vulnerable adults at risk of self-neglect via appropriate and proportionate interventions.

JOHN – A CASE STUDY. John is a 62 year old man living in his own home. His wife died 6 months ago and 2 months ago he was admitted to hospital for 10 days following a fall when he was drunk. Since returning home from hospital, John’s self-care has deteriorated noticeably, he is not cooking for himself (living on biscuits and tea), rarely changes his clothes and is refusing to pick up or take his blood pressure medication. John has a son living nearby who visits once a week. John is now losing weight and developing minor skin breakdown due to spending excessive amounts of time in bed and not washing.

JOHN – A CASE STUDY The GP visited John and was very concerned for his welfare, as well as noting that his kitchen and living room were very dirty and cluttered there was evidence of many empty alcohol bottles. She had known John for 3 years and noted that he had always been a somewhat ‘eccentric, alternative and messy’ individual. However she had also noticed that his living conditions had become worse in recent weeks. In addition she noted evidence of some decline in his memory and that his mood seemed low since his return from hospital. The GP offered to help John get some assistance to manage at home but he had refused telling her ‘I am fine as I am, it is my choice’. Despite this John did accept a referral being made to social care for further assessment.

JOHN – A CASE STUDY When the GP mentioned to John’s son that she was concerned about his father, he had replied ‘That’s just dad, he’s never bothered about looking after himself, it was mum who did all that stuff. He has always liked the booze and it does seem to be getting worse’. The GP’s view was that John ‘on balance, just about had capacity’ to refuse care at home but that ‘something had to be done’.

Questions? How would you apply the MCA in this case? What challenges can you foresee? What actions would you take moving forward if: (a) John was found to lack capacity with regard to accepting a care package to assist with personal care. (b) John was found to have capacity in relation to the decision about the package of care and continued to refuse assistance.