Mental Capacity Act and DoLS

Aim – Mental Capacity Act You will: Know what is covered by the MCA Understand the principles of the Act Understand what is meant by “Best Interest” Know when you need to involve an Independent Mental Capacity Advocate (IMCA) Know what is meant by Deprivation of Liberty Safeguards

A legal framework for decision making for people over the age of 16 who are not be able to make their own decisions due to Illness (eg delirium, dementia, stroke) Injury (eg brain injury, other severe trauma) Learning disability Mental health problems Deals with personal welfare issues, property and general affairs of an individual The Mental Capacity Act 2005: What is it?

New test (Section 2 MCA 2005): “ a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance of, the mind or brain ” What is Capacity?

A person is unable to make a decision for himself (“does not have capacity to take that decision”) if he is unable to do one or more of the following: a.Understand the information relevant to the decision. b.Retain that information long enough to take the decision c.Use and weigh that information as part of the process of making the decision-making d.Communicate his decision (whether by talking, using sign language or any other means). What is Capacity?

MCA 5 Key Principles A presumption of capacity - every adult has the right to make their own decisions. The right for individuals to be supported to make their own decisions. That individuals must retain the right to make what might be seen as eccentric or unwise decisions. Best interests – anything done for or on behalf of people must be in their best interests. (needs proper assessment) Least restrictive intervention – anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedom.

Duty to Act in the “Best Interests” In considering what is “ best interests ” - obligation to consider: : Past and present wishes and feelings (including any written statement made when he had capacity) The beliefs and values that they would be likely to have if they had capacity Factors they would consider “ if able to do so ” The views of others should also be consulted, if appropriate, namely:- – Anyone named by the person as someone to be consulted – Anyone caring for the person or interested in their welfare – Anyone appointed under a Power of Attorney – Any deputy appointed by the Court

Who takes the “Best Interests” decision? The decision falls to the person who is proposing the care at the time in question. For patients at home, this may be their family or carers For patients in hospital, it is the clinical staff: – Nurses take decisions about nursing care – Doctrs about medical care etc NB there is a duty to consult family and other informal carers, but they cannot consent on behalf of the patient and they cannot veto treatment that the clinical team believe to be in the patient’s best interests.

The MCA provides legal protection from liability for carrying out certain actions in connection with the care and treatment of people who lack capacity to consent, provided that you have a: reasonable belief that the person lacks capacity in relation to the matter in question reasonable belief the action you have taken is in the best interests of the person. MCA section 5: acts in connection with care and treatment

A Criminal Offence S44 of the Act 2005 introduces a new criminal offence of ill treatment or neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to imprisonment for a term of up to 5 years Safeguarding Vulnerable groups Act 2006: Staff who become implicated in neglectful care they may be reported to ISA who will consider whether to bar them from working in the future with health care Professional bodies: Nurses or other professional who become implicated in neglectful care, or cause harm to a patient, they may face a professional conduct hearing and sanctions But…

Trained lay person appointed by the Local Authority For whom? - People with no relatives or friends to consult or speak for them (other than paid carers) When? - When decisions are being made about serious medical treatment or significant changes of residence e.g. moving care homes or hospital What? - The IMCA represents and supports the person who lacks capacity. The IMCA makes representations about the person ’ s wishes, feelings, beliefs and values, The IMCA can challenge the decision-maker on behalf of the person lacking capacity if necessary. If you involve an IMCA please inform the safeguarding team Independent Mental Capacity Advocates (IMCAs)

Deprivation of Liberty Safeguards “DoLS”

Under a new legal definition, since 2014, a person is deprived of liberty if: They are not free to leave (does not mean they want to leave or could leave – but if they did you would stop them, or if someone you had not authorised to take them out were to start pushing them out of the door, you would stop them) They are under continuous supervision and control (this criterion is met for all hospital patients – it does not only cover “one to one” care) As a result of this new definition, almost all patients in hospital who lack capacity to consent to their admission are “deprived of liberty” What is “Deprivation of Liberty”?

Provide a procedure for deprivation of liberty to be authorised Detailed independent assessment of proposed arrangements Provide a safeguard for vulnerable people who are “best cared for” in a residential care home, hospital etc Do not apply if:- – Person is aged under 18 – Person has capacity to make their own decision – Person requires treatment under the Mental Health Act procedures – Patient does not have a mental disorder (ie any illness or injury that affects their mind/brain) Deprivation of Liberty Safeguards

Identify patients who may lack capacity Complete the online capacity assessment (I want to > Find out about safeguarding > link at end of page) File a copy of your assessment in the patient’s healthcare record Any DoLS application required will be copied back to the ward manager, consultant and person completing the assessment: note that the patient is “on DoLS” and file the paperwork in the healthcare record Be helpful to the local authority assessors who will arrange to assess the patient Inform the DoLS team of all changes, eg transfers Key “Must Do’s”

Further advice MCA DoLS lead: Hilary Allen Learning disabilities lead nurse: Tricia Handley DoLS office: Safeguarding team: