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

2. 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

3. 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

4. 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

5. 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

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. 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

15. 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

16. 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

17. 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

18. 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

19. 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

20. 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

21. 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

22. 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

23. 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

24. 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

25. 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

26. 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

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

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

29. 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

30. 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

31. 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

32. 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

33. 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

34. 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

35. 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

36. 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

37. 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

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

39. 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

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

41. 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

42. 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

43. 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

44. 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

45. 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

46. 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

47. 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

48. 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

49. 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

50. Urgent advice is available outside office hours on 07802 506306
Thank you for listening
Urgent advice is available outside office hours on
To receive our free monthly briefings on health care and care home topics, please
Capacity and The Law