Capacity and The Law Including DOLS post Cheshire West Simon Cheverst, Solicitor

Mental Capacity Act Codifying the law of capacity Defining and testing for incapacity, applying the Principles and Best Interest test, but consulting Formalising the possibility of advance planning: Lasting Power of Attorney Advance Decision If all else fails: Deputies Court of Protection Capacity and The Law

So How do you Deal with Consent? Capacity? If so, patient consents If no capacity, can anyone consent? Deputy LPA Advance Decision Court Order But not next of kin If no capacity and none of the above, use MCA to make a best interests decision Capacity and The Law

Step One: Check Capacity Definition of incapacity: unable to make a decision because of an impairment of or disturbance in the functioning of the mind or brain Time and decision specific Test for capacity Understand the information Retain information Use or weigh the information to decide Communicate the decision Capacity and The Law

Lack of capacity can not be established on the basis of: Person’s age or appearance A condition of his or aspect of his behaviour which might lead others to make unjustified assumptions about his capacity Act only provides powers if incapacitated individual is aged 16 or over Capacity and The Law

Step Two: If no Capacity Decide in Best Interests Not based on age, appearance or condition Information in appropriate manner Utilise statutory checklist: Capacity in future? When? Encourage involvement Not intended to cause death Take account of previous wishes Capacity and The Law

Statutory Consultation: Take account of views (if practicable and appropriate):- Named Person Engaged in Caring or interested in welfare LPA Deputy Capacity and The Law

Principles Regarding Persons who Lack Capacity A person is presumed to have capacity; 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; A person is not to be treated as unable to make a decision merely because he makes an unwise decision; Capacity and The Law

An act done, or decision made, on behalf of a person who lacks capacity must be done, or made, in his best interests; Before any such act or decision is made, the person making or taking it must consider whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of the person’s rights and freedom of action Capacity and The Law

Defence: Acts in connection with care and treatment You will have complied with the law if you reasonably believe that what you are doing is in the P’s best interests (S.4(9)) Capacity and The Law

Refusal of treatment – NOT mandatory request Advance Decisions – S.24 Refusal of treatment – NOT mandatory request Advance decision can be made by someone of 18 years or over; Advance decision can be withdrawn or altered at any time when the maker has capacity to do so; Advance decision need not be in writing to be valid (However AD regarding removal of Life Sustaining Treatment (LST) will have formal requirements – see S.25) Capacity and The Law

To Consider validity of AD: Did the maker of the AD have capacity at the time? Has the maker of the AD done anything clearly inconsistent with the AD? Has the maker of AD withdrawn the decision at a time when he had capacity to do so? Is the AD applicable to the treatment concerned? Capacity and The Law

Circumstances where AD will not be applicable to the treatment If the treatment is not specified in AD; If any circumstances specified in AD absent; If there are reasonable grounds for believing that circumstances exist which the person lacking capacity did not anticipate at the time of the advance decision and which would have affected his decision had he anticipated them Mental Health Act overrides AD Except re ECT (from October 2008) Capacity and The Law

Effect of Valid AD If P has made a decision which is both valid and applicable to the treatment – the decision has effect as if it were made at the time the question arises. If doubt about validity of advance decision then Court can determine issue Capacity and The Law

Lasting Power of Attorney Replaces the Enduring Power of Attorney; The donee will be able to make decisions about the donor’s health and welfare should the donor become incompetent, if such a power is conferred; The donee will not be able to authorise the giving or refusing of consent to life sustaining treatment unless the LPA makes express provision for this Capacity and The Law

Mental Health Act overrides LPA Except ECT (from October 2008) The donor of an LPA can revoke the powers provided by the authority at any time whilst he has capacity Mental Health Act overrides LPA Except ECT (from October 2008) Capacity and The Law

Deprivation of Liberty Safeguards (DOLS) Responding to European Law: Plugging the Bournewood gap Difficult issues of interaction with MCA and MHA Capacity and The Law

Capacity and The Law Hospital or care home managers identify those at risk of deprivation of liberty and request authorisation from supervisory body. B) Assessment commissioned by supervisory body IMCA appointed for unbefriended Age assessment Mental Health assessment Mental Capacity assessment Best interests assessment Eligibility assessment Objections assessment In an emergency hospital or care home can issue an urgent authorisation for 7 days while obtaining standard authorisation All assessments support authorisation Any assessments says No E) Best interests assessor recommends person to be appointed as representative D) Best interests 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 person’s representative appointed G) Authorisation implemented by managing authority H) Review Managing authority requests review because circumstances change Person or their representative requests review Authorisation expires and Managing authority requests further authorisation Capacity and The Law

Who is covered? Adults With mental disorder (Mental Health Act 1983) Who lack capacity (Mental Capacity Act 2005) Who require treatment or care involving deprivation of liberty (NB But this does NOT authorise the treatment) Suffering from physical or mental health condition In hospitals or care homes Capacity and The Law

When can someone be deprived of their liberty? In best interests to protect from harm Proportionate response No less restrictive alternative Capacity and The Law

What is deprivation of liberty? “There is no simple definition” – a matter of law Look at the facts of each particular case Common factors: Use of restraint Complete control over care, treatment and movement Decision not to release or discharge Continuous supervision and control, restriction on social contact Capacity and The Law

Mr HL was affected by autism at the more severe end of the spectrum The Bournewood gap HL v UK Mr HL was affected by autism at the more severe end of the spectrum Lived in Bournewood hospital for 32 years. Discharged to live with paid foster carers in 1994, Mr and Mrs E Admitted back into Bournewood hospital in 1997 following episode of agitation on way to day centre Mr and Mrs E not permitted to visit HL not objecting to placement and conditions Capacity and The Law

Article 5 of the European Convention of Human Rights (ECHR) Everyone has the right to liberty Only be restricted in certain circumstances one of which being the lawful detention of persons of unsound mind The detention must be in accordance with a procedure prescribed by law The individual must have speedy access to a Court in order to determine the lawfulness of detention Capacity and The Law

High Court - Not deprived of Liberty The Decision(s) in HL High Court - Not deprived of Liberty Court of Appeal – Deprived of Liberty House of Lords - Not deprived of Liberty European Court of Human Rights - Deprived of Liberty AND UK not compliant with ECHR = The Bournewood Gap Capacity and The Law

HL v UK (2004) – The Bournewood case in Europe Factors suggestive of DOL Specific situation of the individual Consideration a “range of factors arising such as the type, duration, effects and manor of implementation of the measure in question.” Difference between restriction and deprivation of liberty “one of degree and intensity not nature or substance” Capacity and The Law

HL Continued The Court said that for the purpose of Article 5 it mattered not whether actual restraint was being used. If it would be used upon a request or attempt to leave, Article 5 is triggered Whilst compliant HL was under complete supervision and control and not free to leave Capacity and The Law

Cheshire West ‘P v Cheshire West and Others’ & P and Q v Surrey – Supreme Court Judgement handed down 19.03.14 [2014] UKSC 19 Court of Protection cases concerning whether the three subject to proceedings were deprived of their liberty Capacity and The Law

P & Q (aka MIG & MEG) Sisters subject to Children Act proceedings in 2007 when aged 15 and 16 Capacity and The Law

Moderate to severe LD plus problems with sight and hearing MIG Moderate to severe LD plus problems with sight and hearing Needs help with road crossing as is unaware of danger Lives with foster mother who she adores. Not on medication Never attempted to leave though would be restrained if did so Attended educational unit in term and goes on family holidays Capacity and The Law

On tranquilising medication and restraint occasionally required MEG LD mild to moderate Emotional understanding and communication relatively sophisticated. Some autistic traits and prone to challenging behaviour Initially with foster carer though moved to residential home as unable to manage severe aggressive outbursts On tranquilising medication and restraint occasionally required Capacity and The Law

Subject to continuous supervision and control MEG Cont’d Subject to continuous supervision and control Showed no wish to go out on her own and did not need to be prevented from doing so Accompanied at all times when away from the unit and attended the same educational setting as her sister Had a fuller social life than her sister Capacity and The Law

Born with cerebral palsy and Down’s syndrome 24 hour care required 38 years old Born with cerebral palsy and Down’s syndrome 24 hour care required He had lived with his mother all of his life though LA sought orders that he should live in LA organised accommodation owing to a deterioration in mother’s health Lived in supported accommodation with 2 other residents. 2 day staff and one ‘waking’ Capacity and The Law

98 hours additional 1:1 support P Cont.. 98 hours additional 1:1 support Attended day centre and hydro therapy pool during week. No tranquilising medication Could walk short distances though needed a wheelchair to go further. Would go to the pub, shops a club and see mother regularly He wears continence pads and a body suit to prevent him from getting at the pads and putting pieces in mouth. Some limited intervention required Capacity and The Law

First Instance Decisions Mrs Justice Parker determined that MIG and MIG were not deprived of their liberty, adopting considerations of ‘relative normality’, the Court of Appeal agreed. Mr Justice Baker in the first instance determined that P was deprived of his liberty but that it was in his best interests. The Court of Appeal substituted this judgement with a finding that P was in terms of ‘relative normality’ not deprived of his liberty Capacity and The Law

The Supreme Court Decision The Supreme Court rejected the notion of relative normality - liberty is the same for everybody regardless of disability. A DOL is likely to arise in circumstances where the measure is incepted by the State, the person is under continuous supervision and control AND is not free to leave Consideration must also be given to the area and period of confinement The fundamental principles in HL v UK remain Capacity and The Law

Practical Consequences for Providers The key for providers will be the identification of such situations Regulators will be looking for evidence from providers that they have this issue covered A mechanism to identify either upon admission or before, those who may lack capacity and consider whether any aspect of the test is made out Thereafter refer accordingly Keep under review – and evidence that Capacity and The Law

Provider consequences continued… Each individual must be considered on their own particular facts If there is a doubt as to whether any of the key criteria are met, an application to the LA DOLS team should be made Work with the Local Authorities - there are resource issues that the Court is grappling with at the moment Think about policies and pro-forma Notify Coroner of death Capacity and The Law

Non DOLs Deprivations Home Supported living Domiciliary Care Children Capacity and The Law

The DOLS Code of Practice – Is it relevant? Chapter 2.5 – A DOL may be indicated where: Restraint is used to admit a person - Staff exercise control over contacts, movement and residence for a significant period - A decision has been taken that the person will not be released into the care of others or permitted to live elsewhere without the agreement of the authority - A request to discharge is refused – The person looses autonomy and control New Test is now: Able to leave? Subject to continuous control and supervision? Capacity and The Law

What about Rochdale MBC v KW [2014]? The Stinger What about Rochdale MBC v KW [2014]? Capacity and The Law

Err on the side of caution in terms of Authorisations CQC Guidance Adhere to principles of MCA in assessment of capacity and best interests decision making including the recording of such information in care plans Err on the side of caution in terms of Authorisations Work with Local Authorities Notify CQC of Authorisation requests Review care plans, capacity and whether free to leave Deliver care in the least restrictive circumstances Provide relevant staff training Capacity and The Law

Relevant staff should familiarise with MCA DH Guidance Relevant staff should familiarise with MCA Be alert to possible restrictions as part of care planning Take steps to review care plans for individuals lacking capacity and determine if DOL Where DOL identified explore least restrictive option (separate guidance available) Where DOL unavoidable it must be authorised Providers and LA’s to work together Capacity and The Law

Training to disseminate new test Audit (so CQC evidence) Key Points: Training to disseminate new test Audit (so CQC evidence) Apply if in doubt to L.A Apply to Court if non DOLs or delay (or weigh up insurance position) Capacity and The Law

Avoiding unnecessary deprivation of liberty Always consider less restrictive approach Minimise physical restrictions imposed Taking decisions in structured way; record reasons Involve family, friends and carers Help person maintain contact with them Review decisions and care plans regularly Advocacy services – an independent element Capacity and The Law

Relationship between the MCA and the MHA MCA applies to all persons lacking capacity MHA specific criteria MHA overrides LPA and AD S.15 MCA Orders by Court Guidance in the Code Capacity and The Law

When should the MHA be used rather than MCA? Use MHA when: Required treatment cannot be given without detention Cannot treat under MCA (e.g as advance decision) Needs restraint in a way MCA does not permit Expected to regain capacity and may then refuse treatment Some other reason the person might not get treatment and suffer as a result Capacity and The Law

GJ v Foundation Trust [2009] EWHC 2972 AM v SLAM [2013] UKUT 0365 Recent Court Guidance GJ v Foundation Trust [2009] EWHC 2972 AM v SLAM [2013] UKUT 0365 Capacity and The Law

If no, MHA unavailable so consider DOLS G J Test In essence: Would the Pt be detained in hospital for treatment of MD if if were not necessary to treat physical disorder? If no, MHA unavailable so consider DOLS Capacity and The Law

Capacity to consent? If yes, MHA, but if no: AM Test Capacity to consent? If yes, MHA, but if no: Can MCA be used? Only if compliant (if so MCA/DOLS) if not: MHA Where choice between MHA and MCA use least restrictive Capacity and The Law

Urgent advice is available outside office hours on 07802 506306 Thank you for listening Urgent advice is available outside office hours on 07802 506306 To receive our free monthly briefings on health care and care home topics, please email andrew.parsons@rlb-law.com Capacity and The Law