1. In Control Conference Tuesday 16 th March 2010 The Mental Capacity Act and Deprivation of Liberty Mathieu Culverhouse Irwin Mitchell Solicitors mathieu.culverhouse@irwinmitchell.com

2. The Mental Capacity Act and Deprivation of Liberty Passed by Parliament in 2005 after wide consultation Covers England and Wales and came into effect in two stages on 1 st April and 1 st October 2007 Establishes a single and comprehensive legal framework for decision making for people over the age of 16 who may not be able to make their own decisions due to illness, learning disability or mental health problems (including effects of drugs/alcohol or temporary loss of capacity) Deals with personal welfare issues, property and general affairs of an individual The Mental Capacity Act 2005: What is it?

3. The Mental Capacity Act and Deprivation of Liberty 2 million people lack capacity to make decisions for themselves (dementia, learning disabilities, mental health problems, stroke, brain injury) Up to 6 million informal carers with no clear guidance as to how decisions are to be made and by whom No legal basis for “next of kin” Court of Protection had jurisdiction over financial affairs only (Lunacy Act 1890) and jurisdiction relates to mental disorder only (Mental Health Act 1959) so excluded drug/alcohol related conditions Enduring Powers of Attorney Act 1985 Mental Health Act 1983 – restricted powers Need for a comprehensive and workable legal framework Why did we need a new Act?

4. The Mental Capacity Act and Deprivation of Liberty Make decisions in relation to: Financial Affairs Court of Protection Power of Attorney/ Wills Health and Personal Welfare e.g Consent to medical treatment Where to live/care arrangements Personal Conduct –who to associate with –marriage and sexual relations Litigation process Capacity to do what?

5. The Mental Capacity Act and Deprivation of Liberty 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” There is no universal test and there is a different test for different purposes. Section 3 A person is unable to make a decision for himself if he is unable to: a.Understand the information relevant to the decision. b.Retain that information. c.Use and weigh that information as part of the process of making the decision-making. d.To communicate his decision (whether by talking, using sign language or any other means). What is Capacity?

6. The Mental Capacity Act and Deprivation of Liberty Decision Making Under the Mental Capacity Act ARE THERE CONCERNS ABOUT CAPACITY TO MAKE THAT DECISION? CONSIDER IF THE PERSON HAS THE CAPACITY TO MAKE THAT SPECIFIC DECISION AT PRESENT (MAY SEEK FORMAL ASSESSMENT) CONSIDER STRATEGIES TO ASSIST THE PERSON TO MAKE THEIR OWN DECISION CAN THE PERSON MAKE THE DECISION WITH ASSISTANCE? A DECISION OR SERIES OF DECISIONS IS REQUIRED TO BE MADE FOR A PERSON GO AHEAD ON PERSON’S INSTRUCTIONS WITH THEIR CONSENT ASSESSED AS HAVING CAPACITY FOR THAT SPECIFIC DECISION YES NO YES NO PERSON LACKS CAPACITY TO MAKE DECISION – CONSIDER WHAT COURSE OF ACTION IS IN PERSON’S BEST INTERESTS AND CONSULT IF APPROPRIATE MAY TAKE INSTRUCTIONS FROM DEPUTY, ATTORNEY OR SEEK DIRECTIONS FROM COURT OF PROTECTION YES

7. The Mental Capacity Act and Deprivation of Liberty There are five key principles in the Act: Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise. A person must be given all practicable help before anyone treats them as not being able to make their own decisions. Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision. Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests. Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms. Key Principles of the Act

8. The Mental Capacity Act and Deprivation of Liberty Section 4. of the Act sets out a framework for considering what is in a person’s “best interests” and as far as possible the decision maker should consider: The person’s 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 MCA does not define best interests, but does give a checklist which probably should be used as a checklist. The Duty To Act In The “Best Interests”

9. The Mental Capacity Act and Deprivation of Liberty Extra safeguard for particularly vulnerable people in specific situations. Medical treatment/long stay accommodation decisions. Duty on local authorities or NHS bodies to provide this service where necessary Who? - People with no-one 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, at the same time as bringing to the attention of the decision-maker all factors that are relevant to the decision. The IMCA can challenge the decision-maker on behalf of the person lacking capacity if necessary. Independent Mental Capacity Advocates (IMCAs)

10. The Mental Capacity Act and Deprivation of Liberty 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: 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

11. The Mental Capacity Act and Deprivation of Liberty Use of restraint not protected under section 5 unless: –Reasonably believes that it is necessary to prevent harm –Proportionate response to that risk and likely nature of that harm Deprivation of Liberty is excluded Use of restraint: Section 6 MCA

12. The Mental Capacity Act and Deprivation of Liberty Provisions of the Code of Practice “The deprivation of a persons liberty is a very serious matter and should not happen unless absolutely necessary, and in the best interest of the person concerned. That is why the safeguards have been created: to ensure that any decision … is made following defined processes and in consultation with specific authorities” Deprivation of Liberty Safeguards

13. The Mental Capacity Act and Deprivation of Liberty What do we mean by “deprivation of liberty”?

14. The Mental Capacity Act and Deprivation of Liberty Restraints and Restrictions Deprivation of Liberty “The distinction between a deprivation of, and a restraint upon, liberty is merely one of degree or intensity and not one of nature or substance” HL v United Kingdom Each individual case must be assessed on its own circumstances – be aware of previous cases Deprivation of Liberty

15. The Mental Capacity Act and Deprivation of Liberty DOL is ultimately a legal question Account must be taken of the type, duration, effects and manner of implementation of the measure in question Number of indicators and examples in the Code of Practice Deprivation of Liberty

16. The Mental Capacity Act and Deprivation of Liberty Complete and effective control over care and movement for a significant period Conscious decision taken that if P tries to leave, this will be prevented Restraints (including sedation) regularly used or used to admit to placement DOL Indicators

17. The Mental Capacity Act and Deprivation of Liberty Staff exercise control over assessments, contacts, treatment and residence Request for discharge refused Loss of autonomy due to continuous supervision and / or control DOL Indicators

18. The Mental Capacity Act and Deprivation of Liberty Degree of control over care and movement Presence of any physical or other restraints Ability to maintain social contact of choice Refusal to accede to personal or relatives requests for discharge Continuous Supervision Checklist of Factors

19. The Mental Capacity Act and Deprivation of Liberty Deprivation of Liberty Safeguards RestraintDOL Doors locked but P can leave→Locked doors and P rarely goes out P is prevented from leaving unless escorted for safety reasons→P never leaves without escort. Escort not always available Some control over P by staff→Extensive control over P by staff Contact with others limited by visiting hours→Contact with others limited by additional rules P given some choice over daily activity→Continuous Supervision leads to a complete loss of control over daily living

20. The Mental Capacity Act and Deprivation of Liberty Degree of control over care and movement Presence of any physical or medical restraints Advance decision that the person will not be released. Ability to maintain social contact of choice Refusal to accede to personal or relatives request for discharge Continuous supervision, monitoring or control Checklist of factors

21. The Mental Capacity Act and Deprivation of Liberty Summarise what the elements of the care plan will be measured against the list above Consider the effect of the arrangement on the person’s individual freedom and expressed intentions Assess the views of those concerned for the persons welfare Overall cumulative effect going beyond mere “restriction”? If DOL – follow the DOLS process Summary – Deprivation of Liberty

22. The Mental Capacity Act and Deprivation of Liberty Provide a procedure for deprivation of liberty to be authorised by delegated arms of the state Provide a safeguard for vulnerable people who “best cared for” in a residential care home or hospital 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 Deprivation of Liberty Safeguards

23. The Mental Capacity Act and Deprivation of Liberty Identification of the need for an authorisation Application for authorisation Initial consideration by the supervising authority Assessment Assessment outcome Review Process overview

24. The Mental Capacity Act and Deprivation of Liberty Age assessment No refusals assessment Mental capacity assessment Mental health assessment Eligibility assessment Best interests assessment DOLS Assessment

25. The Mental Capacity Act and Deprivation of Liberty If all 6 assessments are supportive the supervising authority must written authorisation Authorisation must have a time limit and may impose conditions Notification of decision to managing authority, the person concerned, IMCAs etc Limits on the effect of the authorisation DOLS Authorisation

26. The Mental Capacity Act and Deprivation of Liberty DOLS Code of Practice “What orders can the Court of Protection make? 10.10 The court may make an order: varying or terminating a standard or urgent authorisation, or directing the supervisory body (in the case of a standard authorisation) or the managing authority (in the case of an urgent authorisation) to vary or terminate the authorisation. What is the role of the Court of Protection in respect of people lacking capacity who are deprived of their liberty in settings other than hospitals or care homes? 10.11 The deprivation of liberty safeguards relate only to circumstances where a person is deprived of their liberty in a hospital or care home. Depriving a person who lacks capacity to consent to the arrangements made for their care or treatment of their liberty in other settings (for example in a person’s own home, in supported living arrangements other than in care homes or in a day centre) will only be lawful following an order of the Court of Protection on a best interests personal welfare matter (see paragraph 6.51 of the main Code). 10.12 In such a case, application to the Court of Protection should be made before deprivation of liberty begins. A Court of Protection order will then itself provide a legal basis for the deprivation of liberty. A separate deprivation of liberty authorisation under the processes set out in this Code will not be required.” On appeal from a DOLS authorisation there is a specific Practice direction supplementing Part 10A COPR www.hmcourts-service.gov.uk/.../court_protection/DOL-PD-proposedfinalsignaturedraft-270209-1.doc Where DOLS does not apply, in a straight application for court authorisation the court can make s16 and 17 MCA orders authorising DOL. Role of the Court in DOL cases

27. The Mental Capacity Act and Deprivation of Liberty Munby J in Salford CC v BJ (2009)EWHC 3310 (Fam) provides the authorities for the court’s (inherent and then COP) jurisdiction and approach in DOL cases “19. Both my judgment in this case, Re GJ, NJ and BJ (Incapacitated Adults) (2008) EWHC 1097 (Fam), [2008] 2 FLR 1295, and my earlier judgment in Re PS (Incapacitated or Vulnerable Adult) (2007) EWHC 623 (Fam), [2007] 2 FLR 1083, have been referred to, seemingly with approval, both by the President of the Family Division, sitting in the Court of Protection, in A Primary Care Trust and P v AH and a Local Authroirty [2008] EWHC 1403 (Fam) [2008] 2 FLR 1196, and by Charles J, also sitting in the Court of Protection, in GJ v The Foundation Trust and others [2009] EWHC 2972 (Fam). The opportunity the present application has afforded me to consider the topic again does not cause me to alter any of the views I have previously expressed. My starting point, therefore, is what I said in Re GJ, NJ and BJ (Incapacitated Adults) (2008) EWHC 1097 (Fam), [2008] 2 FLR 1295. 20. At the time I delivered that judgment, the deprivation of liberty amendments to the Mental Capacity Act 2005 effected by the Mental Health Act 2007 (the new sections 4A, 4B and 16A and the new Schedules A1 and 1A) were not yet in force. They have since been brought into force, but it is correctly common ground that Schedule A1 does not apply to BJ, because his accommodation at MH is not a “hospital or care home” within the meaning of Schedule A1, paragraph 1(2). Nor does section 4B of the 2005 Act apply, for BJ’deprivation of liberty is not for either of the purposes referred to in section 4B(3). Nor does section 16A of the 2005 Act apply, for BJ is not “ineligible to be deprived of liberty by this Act”, his situation not being one of those referred to in Schedule 1A. “ DOL caselaw

28. The Mental Capacity Act and Deprivation of Liberty 21. It follows that, consistently with the general analysis of Article 5 set out in Re PS (Incapacitated or Vulnerable Adult [2007] EWHC 623 (Fam) [2007] 2 FLR 1083, and Re GJ, NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295, any continuing deprivation of BJ’s liberty is permissible only if sanctioned by either: i) the Family Division of the High Court exercising its inherent jurisdiction in relation to incapacitated or vulnerable adults: see Re PS (Incapacitated or Vulnerable Adult [2007] EWHC 623 (Fam), [2007] 2 FLR 1083, and Re GJ, NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295; or ii) the Court of Protection exercising its powers in accordance with section 15(1)(c) of the 2005 Act: see Surrey County Council v MB [2007] EWHC 3085 (Fam) and A Primary Care Trust and P v AH and a Local Authority [2008] EWHC 1403 (Fam), [2008] 2 FLR 1196; or iii) the Court of Protection in accordance with sections 4A(3), 4A(4) and 16(2)(a) of the 2005 Act.: see GJ v The Foundation Trust and others [2009] EWHC 2972 (Fam). 22. Unsurprisingly, because everything eventually turns on Article 5 and the Strasbourg jurisprudence, the Court of Protection exercises these statutory jurisdictions in accordance with the same principles as the High Court applies when exercising its inherent jurisdiction: see Surrey County Council v MB [2007] EWHC 3085 (Fam) at paras [29], [69], A Primary Care Trust and P v AH and a Local Authority [2008] EWHC 1403 (Fam), [2008] 2 FLR 1196, at paras [29]-[32], and GJ v The Foundation Trust and others [2009] EWHC 2972 (Fam), at para [23]. DOL caselaw

29. The Mental Capacity Act and Deprivation of Liberty Growing body of case law includes… DOL possible in the family home?; Physical restraints automatically DOL? ; Inherent Jurisdiction overlap? GJ V The Foundation Trust [2009] EWHC 2972 (Fam) Charles J - This judgment was concerned with the interface issues between the MHA and MCA DOLS, in circumstances where a person is, or may need to be, deprived of their liberty in order to be treated in hospital wholly or partly for their mental disorder. W PCT v B[2009 ] EWHC 1737 (Fam) Wood J - The Court of Protection found that TB was eligible to be deprived of her liberty by the Safeguards, if it were in her best interests to do so, as she was not a mental health patient as defined under schedule 1A of the Mental Capacity Act 2005, because the authorisation related to a care home which was not a hospital within the meaning of Pt 2 of the Mental Health Act ( see s.145(1) Mental Health Act). LB Enfield v SA 2010 EWHC 196 (Admin) in the COP Macfarlane J - The Judgment followed a 3 day fact-finding hearing and contains a number of points of law including: –Hearsay evidence is admissible in COP proceedings, including evidence from P; –Where proceedings are ongoing, any decision to do an ‘Achieving Best Evidence’ interview by the police should be subject to a direction from the COP Judge; –The Local Authority are under a duty of full and frank and ongoing disclosure. Specific wording is advised at para 58 of the Judgement where disclosure is requested. –Judicial continuity should be standard in the COP as it is in Children Act proceedings where there is a fact-finding hearing followed by a final hearing of the matter to consider best interests. DOLs/DOL

30. The Mental Capacity Act and Deprivation of Liberty Deprivation of Liberty Safeguards available online at the DoH website Further details and latest documents in DoL secion of DoH website: http://www.dh.gov.uk/en/SocialCare/Deliveringadultsocialcare/Menta lCapacity/MentalCapacityActDeprivationofLibertySafeguards/index.h tm Further help

31. In Control Conference Tuesday 16 th March 2010 Mathieu Culverhouse Irwin Mitchell LLP mathieu.culverhouse@irwinmitchell.com