MCA/DOLS Update Mental Capacity Act & Deprivation of Liberty Safeguards

Good Medical Practice in Action Everyone who works with people who lack capacity is legally required to work within the Mental Capacity Act and have regard to the Code of Practice. GROUP EXERCISE Good Medical Practice in Action

11 Key MCA messages 1. Always start from an assumption of capacity 2. Capacity is time specific and decision specific 3. People with mental health problems, dementia, learning disabilities often maintain the capacity to make some decisions for themselves 4. We must encourage, assist and support people to make their own decisions if possible. 5. If it is likely that the person may regain capacity we must consider whether the decision can wait. 6. Can the person understand, retain & use and weigh up the relevant information and communicate their decision? If so, they have capacity.

7. People have the right to make unwise decisions 8. It is not just mental illness & learning disability that impair capacity. Other examples include: brain injury, physical illness, substance abuse, shock, side effects of medication. If the person meets the criteria we may be breaking the law if we don’t involve an IMCA. 10. If the person is found to lack capacity we must consult other people e.g. family, friends, carers. 11. Refer to the Mental Capacity Act Code of Practice for any questions you have. It’s a great book!

The Human Rights Act Article 5: No one shall be deprived of his liberty (other than) in accordance with a procedure prescribed by law”…”everyone who is deprived of his liberty…shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by the court and his release ordered if the detention is not lawful” Article 8: Everyone has the right to respect for his private and family life, his home and his correspondence. 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.

It all began with………

“The Bournewood Case” Harry admitted to Bournewood Hospital July 1997 HL v UK v ECHR (2004) … Harry admitted to Bournewood Hospital July 1997 Discharged back to his carers in December 1997 following Court of Appeal ruling The Enderbys took the case to The European Court of Human Rights to stop arbitrary detentions of people like Harry who lacked capacity to consent The ECHR ruled that Harry’s Article 5 rights had been violated

youtu.be/pz5Ecovjs4w

HCHR - deprivation of liberty has 3 elements…. 1. The objective element of a person’s confinement in a certain limited place for a not negligible amount of time 2. an additional subjective element that they have not validly consented to the confinement in question 3. the confinement must be imputable to the state

What the DOLS Code of practice says… The European Court of Human Rights (ECtHR) and UK courts have indicated that the following factors can be relevant to identify deprivation of liberty (not exclusive, may change with case law): Restraint is used, including sedation, to admit a person to an institution where that person is resisting admission Staff exercise complete and effective control over the care and movement of a person for a significant period Staff exercise control over assessments, treatment, contacts and residence

What the DOLS Code of practice says…continued A decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate A request by carers for a person to be discharged to their care is refused The person is unable to maintain social contacts because of restrictions placed on their access to other people The person loses autonomy because they are under continuous supervision and control

The Neary Case (London Borough of Hillingdon v Neary (2011)EWHC 1377 COP) Steven Neary, aged 21, was removed from the care of his father by Hillingdon Council in December 2009 He remained in a council run care home (despite his & his father’s objections) until December 2010 when he was returned home by the court He had been subject to a succession of DOLS authorisations since April 2010. The Court found that these authorisations had been unlawful, and that he had been unlawfully deprived of his liberty throughout the whole 12 month period

Lessons from case law Whenever anyone make a best interests decision they must: follow, and evidence that they have followed, the full best interests assessment process set out in the MCA Section 4 (the best interests checklist) have regard to a person’s Article 5 and Article 8 rights consult as far as possible with the person themselves consult with close family and friends (unless there are very strong grounds to exclude them) If a decision has to be made on behalf of a person who lacks capacity it should be made collaboratively wherever possible.

Restraint or deprivation? Examples of restraint Moving towards Possible deprivation Force or restraint being used to admit a person Proportionate restraint being used to administer a necessary blood test Needing to distract/persuade someone away from a door when they are sometimes asking to leave Preventing a person from going out with relatives An individual being prevented from leaving a unit unescorted Having to frequently prevent someone from leaving when they object to being there Keeping someone under constant supervision Proportionate restraint being used to return a person who has left a unit & is walking confused & unsafe in a busy road Only allowing visiting at certain times A person being unable to maintain social contacts Giving a person covert medication in their own best interests when they lack capacity & are refusing to take tablets Staff exercising complete control N.B. ‘Proportionate restraint’ is the least amount of force for the shortest possible time

MCA Principle 5 “ Before any act is done or decision made regard must be had to whether it can be achieved in a way that is less restrictive of a person’s rights and freedom of action”

DoLS: The Process

A) Hospital or care home managers identify those at risk of deprivation of liberty & request authorisation from supervisory body In an emergency hospital or care home can issue an urgent authorisation for 7 days while obtaining standard authorisation B) Assessment commissioned by supervisory body. IMCA appointed for unbefriended Age assessment No Refusals assessment Mental health assessment Mental capacity assessment Eligibility assessment Best interest assessment Authorisation expires and Managing authority requests further authorisation All assessments support authorisation Any assessment says no E) Best interest assessor recommends person to be appointed as representative C) Request for authorisation declined D) Best interest assessor recommends period Person or their representative appeals to Court of Protection which has powers to terminate authorisation or vary conditions F) Authorisation is granted and persons representative appointed Box C needs some discussion. What should happen after the request is declined? Possibilities include: step down restrictions so there is no deprivation of liberty; use MH Act; apply to Court of Protection for s16 order. G) Authorisation implemented by managing authority Managing authority requests review because circumstances change Person or their representative requests review H) Review 18 18

CQC Responsibilities CQC will look at documents and records of applications and authorisations and may want to see: Completed forms Details of any conditions imposed Any requests for review Evidence of regular monitoring Plans of care, treatment and support Other relevant documents

Managing Authority responsibilities Apply for an authorisation if you feel someone in your care home may be deprived of their liberty. Inform the person, and their relatives, of application and authorisation if one is given. Inform CQC when making an application and inform them of the outcome of the DoLS assessment (Outcome 20, Regulation 18). Make relevant documents available to DoLS assessors Inform the person registered under the Care Homes Act.

Managing Authority responsibilities contd… Check that the RPR is keeping regular contact with the person. Act on any conditions set as part of the authorisation. Inform the supervisory body if circumstances change conditions can not be met requirements for DOLS may no longer be met RPR is not maintaining regular contact with RP Inform Coroner if a person dies while subject to a DoLS Authorisation

Hertfordshire Supervisory Body SFAR 016 Farnham House Six Hills Way Stevenage SG1 2FQ email: dolsteam@hertscc.gov.uk phone: 01438 843800      fax: 01438 844312 (NB: We ask that you always follow up a fax with a telephone call to check we have received the fax)

Any questions? Thank you