Mental Capacity Act 2005 Safeguarding Adults

MCA: What does the Act do? The Mental Capacity Act provides the legal framework for acting and making decisions on behalf of vulnerable individuals who lack the mental capacity to make a particular decision. The MCA supports vulnerable adults by: Protecting those who cannot make their own decisions. Making it clear who can make decisions on a persons behalf. Allowing people to make some decisions in advance for themselves. Providing a service to support those who have no-one to help them make decisions - IMCA. Helping resolve disputes.

MCA: Five Key Principles A presumption of capacity: Adults have capacity unless proven otherwise. An adult must be given all appropriate help and support – before anyone concludes that cannot make their own decisions. Right to make unwise or eccentric decisions. Best interests: Anything done for or on behalf of people who lack capacity must be in their best interest. Least restrictive intervention: Anything done for or on behalf of people who lack capacity should be the option that is least restrictive – as long as it is still in their best interest.

MCA: Test for Capacity Understand the information relevant to the decision. Retain the information long enough to make the decision. Use or weigh the information as part of the process of making the decisions, and Communicate the decision (through speech, sign language or in any method)

How do you support the person? What do you ask? How do you ask? Capacity Assessment How do you assess? How do you support the person? What do you ask? How do you ask? How do you record?

MCA: Best Interests The MCA Code of Practice tells us we must consider 10 factors in deciding what is best interest – when making a decision on behalf of a mentally incapacitated person: All relevant circumstances Regain capacity Past & present wishes Beliefs & values Other factors the person would consider Consult others e.g. family friends, advocates, attorneys, deputies, etc. Encourage the person to participate Least restrictive option Not based solely upon age, appearance, behaviour or condition If life sustaining treatment, not motivate by the desire to bring about the person’s death Follow this list when making your decisions and you will not go wrong. Could use each point as a heading in a report as a way of evidencing the decision making process.

MCA: Definition of Restraint Restraint is permitted if reasonable and proportionate and is believed to be necessary to prevent harm. Restraint is to be used only as a least resort or in exceptional circumstance. The MCA relates to people 16 years and above but Deprivation of Liberty Safeguards (DoLS) is used only for those 18 years plus. DoLS – in addition to the MCA, DoLS law can be used to assess and decide (authorise) whether a person in a hospital or residential home should remain there, when others have made that decision for them. How do you see restraint? What might you consider a restraint? How would you reduce restrictions/restraints?

MCA: Things to remember The five key principles Always use the least restrictive option Always help and support the person to participate in the decision making process Always take into account both past & present wishes/feelings of the person Take into account the views of family and others (e.g. advocates; friends) DoLS Refer to the 10 factors in the Code of Practice when making a best interest decision

Fluctuating/Situational Capacity Does the person have an illness that changes their capacity temporarily? Is the person making a different decision as they’ve changed their mind or are they not actually able to make a decision. Is the person being coerced, threatened or persuaded by someone or something to change their mind? What do you do if they have fluctuating or situational capacity? Who can you call on for support?

Deprivation of Liberty Safeguards Authorisation request completed by the Manager of the home or the named person in a hospital. Supervisory Body (SB), responsible for assessment and authorisation, is the Local Authority where the person is ordinary resident. 6 assessments; 3 by a Best Interest Assessor and 3 by a trained Mental Health Doctor. Assessments completed in 7 or 21 days dependent upon circumstances. SB signs off the authorisation for the time (or less, not more) the BIA has suggested. Authorisation can be recommended by someone else – they can approach the local authority to advise they believe a person is deprived of their liberty in hospital or care home. Local authority can request an application from the home or hospital. Local authority have to approach court to order home or hospital to make the application if they refuse. Unauthorised/unauthorisable DoLS is an immediate safeguarding referral. Urgent or Standard? IMCA, Representative, Paid Representative Give same rights as Mental Health Act – right to review, timely review, representation, appeal, etc.

Supreme Court Decision 19th March 2014 New guidance: Lacks capacity Under continuous supervision and control Not free to leave Much lower level of restriction indicates the need for an application. What might you look out for now? Who made the decision to move into a home Support plan that has observation regime Capacity assessment on record – decide where to live or decide what support they need Best interest decision on record Don’t forget – supported living and dom care now as well – different route to approve the DoL

MCA: Care & Treatment Evidenced Key point……. We do not incur legal liability if a proper assessment of capacity and best interest has been done and the MCA & DoLS Code of Practice is followed and…. Evidenced www.publicguardian.gov.uk Evidence, evidence, evidence