1. Understanding the Mental Capacity Act (MCA) & Adult Safeguarding Elected Members Seminar 4 Feb 2013 David Pugh MCA & MHA Implementation Manager david.pugh@gloucestershire.gov.uk 07867501128 01452 427088 Tina Kukstas Senior Nurse Practitioner Organic, 2getherNHSFT tina.kukstas@glos.NHS.uk 07791595909 Karl Gluck Outcome Manager (Mental Health) karl.gluck@gloucestershire.gov.uk 07771975838 david.pugh@gloucestershire.gov.uk karl.gluck@gloucestershire.gov.uk  Brief review of the MCA  Sources of further info. & E-learning  MCA governance  Adult safeguarding & MCA performance expectations  What makes a good capacity assessment  The dangers of the ‘protection imperative’ Judges Munby & Baker MCAGG

2. Summary of Key Points  People should be supported to make their own decisions wherever possible  If the person cannot make a decision, that decision must be made in the person’s best interests  Carers/relatives/friends have a right to be consulted about any best interests decisions made by professionals  The MCA is helpful in balancing the autonomy & protection of individuals lacking capacity. MCAGG

3. What is Mental Capacity? A term used to describe the level of understanding a person has to make decisions. People are described as lacking capacity when they are unable to make a particular decision –TIME & SITUATION SPECIFIC MCAGG

4. Why does the MCA matter? It clarifies the process for caring for people who may lack capacity It clarifies how decisions should be made for a relative/ friend if they are unable to make certain decisions for themselves It sets out when a carer should be consulted about decisions made on behalf of a relative or friend It sets out how the carers relative/friend is protected when others are making decisions on their behalf It provides 5 statutory principles that must underpin all acts & decisions carried out in relation to the Act Safeguarding: is the person subject to safeguarding concerns able to understand & weigh up the risk they are subject to? MCAGG

5. Overview The 5 principles: clear underpinning rules. Assessment of mental capacity test ‘Best interests’ checklist Clearly defined ways to plan ahead: LPAs ADs MCAGG

6. 5 Core Principles: 1,2 & 3 1. A person is assumed to have capacity. A lack of capacity has to be clearly demonstrated. 2. No-one should be treated as unable to make a decision unless all practicable (reasonable) steps to help them have been exhausted and shown not to work. 3. A person can make an unwise decision. This does not necessarily mean they lack capacity. MCAGG

7. Core Principles 4 & 5 4. If it is decided that a person lacks capacity then any decision taken on their behalf must be in their best interests. 5. Any decision taken on behalf of a person who lacks capacity must take into account their rights and freedom of action. Any decision should show that the least restrictive option or intervention is achieved. MCAGG

8. The 2-stage test of capacity Part 1: “Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain? If so, Part 2: Is the impairment or disturbance sufficient that the person lacks the capacity to make that particular decision?” MCAGG

9. Part 2, the Four Stage Assessment A person’s abilities in these 4 key areas need to be assessed: Understanding the information Retaining the information long enough to process it. Weighing up the information Communicating a decision. MCAGG

10. Section 5 of MCA - Best Interests Decisions Sec 5 of the MCA allows carers, healthcare and social care staff to carry out certain tasks without fear of liability. These tasks involve the personal care, healthcare or treatment of people who lack capacity to consent to them. The aim is to give legal backing for acts that need to be carried out in the best interests of the person who lacks capacity to consent. MCAGG

11. Best Interests Checklist Restricting the persons’ freedom as little as possible Involving the person as much as possible & listening to what they say Taking account of the person’s wishes and feelings, past opinions, beliefs and values The views of other people – consulting carers, family members close friends (5.49 – 5.55 MCA CoP). Independent Mental Capacity Advocate (IMCA) for serious medical decisions & accommodation moves if no-one suitable to represent the patient + safeguarding MCAGG

12. Making plans for the future & the MCA: 1.Advance Decisions (ADs) 2.Lasting Powers of Attorney (LPA) 3.Writing down future wishes & preferences Local Planning Your Future Care Document - Advance Care Planning (Appendix 7 of multi- agency MCA policy) MCAGG

13. Protection of people who lack capacity Sec 44 New criminal offence of ill-treatment or willful neglect of a person who lacks capacity. Can apply to anyone caring for someone who lacks capacity Plethora of prosecutions e.g. Lancaster & Morecombe, Winterbourne –Summary conviction – up to 12 mths imprisonment + fine –Conviction on Indictment – up to 5yrs imprisonment + fine MCAGG

14. Code of Practice Key Chapters: Chapter 4: Assessing capacity Chapter 5: Making Best Interests Decisions Chapter 9: Advance Decisions MCAGG

15. MCA Governance Group (MCAGG)  2007 – 2012: Local Implementation Group I.4 Pronged Strategy 2010/12: 1) Independent audit 2) Multi-Agency MCA Policy 3) MCA Conference 4) MCA Action Plan Phase 2  MCAGG constituted Autumn 2012  Membership: Key statutory partners + Link  MCA Orgl Leads including CCG MCA Lead Dr Hein Le Roux  Strategic Aims & one Key Task per Aim e.g. Review of Multi-Agency MCA Policy  Accountable to GHWBB MCAGG

16. Multi-Agency MCA Policy  Common set of standards for users/patients & carers  Facilitates improved joint working  Multi-agency training around common tools e.g. assessment, best interests, advance decisions  Robust quality assurance & accountability Multi-agency MCA Policy, Procedures & Guidance www.gloucestershire.gov.uk/mcapolicy www.gloucestershire.gov.uk/mcapolicy MCAGG

17. Adult Safeguarding & MCA Performance Expectations  NHS/ADSS Outcome 4: People in need of safeguarding support feel safer & further harm is prevented.  Key Objective: If the mental capacity to make a specific decision relating to the safeguarding process cannot be assumed a Mental Capacity Assessment is undertaken as required by the MCA 2005.  Relevant to LAs Health Trusts, Nursing & Residential Care Homes, 3 rd Sector Orgs, Community Nursing Staff Day Care Services MCAGG

18. MCA Staff Expectations Aware of statutory principles of the MCA Aware of MCA Code of Practice & when assessments of capacity are needed Aware of the Best Interests Check-list Aware of what an IMCA is Aware of Deprivation of Liberty Safeguards (DoLS) Safeguarding adults processes are used when an illegal DoL is identified Aware of when to approach the Court of Protection MCAGG

19. Glos Safeguarding Vulnerable Adults Multi- Agency Policy & Practice Guidance Mental Capacity & Complex Situations Sec7.6 ‘Risks arising from self neglect or a persons own behaviour or lifestyle’ Vulnerable adults may refuse help & services & may be seen to be at significant risk as a result. If an agency is satisfied that the vulnerable adult has the capacity to make an informed decision (in relation to safety decisions), then that person has the right to refuse services. MCAGG

20. Vulnerable Adults who Refuse or Resist Intervention  Individuals will continue to be considered to be vulnerable adults when health & social care services are refused or resisted and: They have capacity, but engage in behaviors that put themselves & others at risk of serious harm through self neglect They have varying levels of decision & time specific capacity & engage on behaviors that put themselves & others at risk of serious harm through self neglect –Consider need for MHA 1983 (2007) assessment. MCAGG

21. Judge Baker – What makes a good capacity assessment (CC v KK & STCC’ (2012) The dangers of the 'protection imperative' Danger of inflating capacity assessment, attaching greater weight to physical security Reiteration of Judge Munby's dictum ‘what good is it making someone safer if it merely makes them miserable’ –Plus Neary v Hillingdon Council The 'blank slate' approach to assessing capacity and the importance of alternative sufficiently detailed care plans for the assessment of capacity itself Tendency of decision makers to conflate capacity with insight Don’t rely on ‘experts’, assessment a dialogue not a scientific process ‘Peripheral detail’, subject only needs the salient details MCAGG

22. Summary of Key Points  People should be supported to make their own decisions wherever possible  If the person cannot make a decision, that decision must be made in the person’s best interests  Carers/relatives/friends have a right to be consulted about any best interests decisions made by professionals  The MCA is helpful in balancing the autonomy & protection of individuals lacking capacity. MCAGG

23. Reflections on an MCA & Adult Safeguarding Case MCAGG

24. Further Information Court of Protection and the Office of the Public Guardian www.justice.gov.uk/guidance/mca-info- booklets.htmwww.justice.gov.uk/guidance/mca-info- booklets.htm Tel: 0845 330 2900 E: customerservices@publicguardian.gsi.gov.ukcustomerservices@publicguardian.gsi.gov.uk The GCC LIN MCA website provides links to all key local policies & links to a range of key national sites www.gloucestershire.gov.uk/mca The SCIE website is particularly useful. http://www.scie.org.uk/ http://www.scie.org.uk/ Tel: 020 7024 7650 Email: info@scie.org.ukinfo@scie.org.uk MCAGG

25. More Further Information! MCA Code of Practice: http://www.publicguardian.gov.uk/docs/mca-code- practice-0509.pdf http://www.publicguardian.gov.uk/docs/mca-code- practice-0509.pdf SCIE ‘MCA at a Glance’ http://www.scie.org.uk/publications/ataglance/ataglanc e33.asp http://www.scie.org.uk/publications/ataglance/ataglanc e33.asp ‘Making decisions. A guide for family, friends & other unpaid carers’ http://www.publicguardian.gov.uk/docs/opg-602- 0409.pdf http://www.publicguardian.gov.uk/docs/opg-602- 0409.pdf MCAGG

26. E-Learning Kwango: http://www.kwango.com/GCCMCAlogin http://www.kwango.com/GCCMCAlogin User Name: Other Password: Glos MCA12 SCIE: 9 modules; supporting people to make decisions, day to day decisions, best interests (BI) decisions, complex BI decisions, disagreements, future planning, DoLS, MCA/MHA interface http://www.scie.org.uk/publications/elear ning/mentalcapacityact http://www.scie.org.uk/publications/elear ning/mentalcapacityact MCAGG

27. Questions/Discussion Thanks for listening! MCAGG