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Mental Capacity Act- Progress & Priorities

IMCA National Conference, Derby12 November 2015

Niall FryMCA Policy Lead, Department of Health

Twitter - @NiallatDHEmail - Niall.Fry@dh.gsi.gov.uk

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Overview

MCA principles & the value of the MCA

Progress over the last year

Priorities for the next year

National Mental Capacity Forum

Deprivation of Liberty Safeguards

Concluding thoughts

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1. Assume each individual has capacity unless assessed otherwise2. Support individual to make their own decision

3. Allow individuals the freedom to make ‘unwise decisions’

4. Decisions made in the individual’s best interests

5. Finding the least restrictive option

The MCA: enshrining in law a person-centred approach to health & care

The principles of the MCA should be thoroughly embedded in the way all medical and social care professionals work every day. The MCA is not a piece of legislation removed from everyday front line work. It encapsulates and reflects best practice care.

Compliance with the MCA cannot be achieved if it is approached as a tick box exercise. It is a cultural ethos of centring care around the individual.

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The MCA: Reassurance for professionals

MCA Code of Practice:

- Section 5 of the Act provides “protection from liability”- “Section 5(1) provides possible protection for actions carried out in connection

with care or treatment….. if the person is reasonably believed to lack capacity to give permission for the action. The action must be in the person’s best interests and follow the Act’s principles”

- Recording rationale for decisions made is key, and evidence of capacity assessment

- “In emergencies, it will almost always be in the person’s best interests to give urgent treatment without delay”

The MCA is a fundamental legal foundation for health and care professionals. All should be aware of its principles and able to demonstrate how their practice complies

with the Act.

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The Value of the MCA

Practice based on MCA principles means improved well-being across multiple “diagnostic groups” – dementia, learning disability, mental health. Get it right for

these individuals, we can get it right for everyone. A smart investment of time and resource.

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Yet MCA implementation not what it should be

House of Lords MCA Select Committee, March 2014:

“MCA: visionary piece of legislation: potential to transform the lives of many. However, its implementation has not met the expectations that it rightly raised. The Act has suffered from a lack of awareness and a lack of understanding. The empowering ethos has not been delivered. The rights conferred by the Act have not been realised.”

CQC State of Care Report, October 2015:

“We have seen variable staff understanding of the Mental Capacity Act 2005 (MCA). In a number of cases, staff did not understand how they should be applying the requirements of the MCA in their roles. In some cases, there was a lack of adequate training for staff in these areas. There was varied understanding, for example, of when an assessment of capacity needed to be made and how a decision was tobe made in a patient’s best interests under the MCA, when they did not have capacity to consent to treatment.”

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Progress over the last year

• CQC hardwired MCA into inspections - clear link between those deemed “inadequate” and those failing to implement the MCA

• MCA element incorporated into foundation training for all doctors

• MCA a core part of new social work knowledge and skills statement

• New online resource and store of key practice-support materials:http://www.scie.org.uk/mca-directory/

• New resources include: self-improvement/ audit tool, guide to commissioning for MCA compliance (NHS and social care), pocket sight MCA cards and more

• Our one year update contains links to all key documents:http://www.scie.org.uk/mca-directory/keygovernmentdocuments.asp

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Priorities for the next year

• Activating MCA leads – e.g. in Clinical Commissioning Groups, Health & Wellbeing Board, GP Practices

• Translating MCA training to MCA practice

• Working through the new cross-Government “MCA Implementation Group” to build a more aligned and collaborative programme – health and care but also financial, legal, police

• It is clear, that although national leadership and alignment of national levers is important, benefits for service-users will only be realised following local action and when practitioners embrace and practice MCA principles: some great local examples, but some areas far behind……

• And so our major initiative for the next year and beyond……………………

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National Mental Capacity Forum (NMCF)

• Independent Chair: Baroness Ilora Finlay

(Ex-President British Medical Association, palliative care consultant , President Chartered Society of Physiotherapy)

• Key aim: identifying local practical actions that can realisereal improvements in MCA implementation and real benefits for service-users

• Cross-sector: health and care, legal, financial, police

• How can encourage more of: - practice-based multi-sector training, information sessions for families and

carers, outreach to GPs, third sector signposting to Lasting Powers of Attorney, pod-casts for hospital staff, MCA floor-walkers/ champions, calls for evidence of MCA-compliance during commissioning, engagement with local media

• Currently developing priorities, watch this space: @NiallatDH

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Deprivation of Liberty Safeguards (DoLS)

March 2014 Cheshire West Judgment

“Acid test”:

Individual is deprived of their liberty if they- Lack capacity to consent to arrangements- Under continuous control & supervision- Not free to leave

Lack of objection/ compliance, “relative normality” irrelevant: “gilded cage still a cage”

Such a DoL must be authorised through DoLS or the Court of Protection (or through Mental Health Act if approriate)

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DoLS – before and after the SC judgment

Overall DH Guidance:- Full compliance a

journey- Do-nothing

unacceptable- Must have a plan and

be adhering to national guidance

- Degree of prioritisation inevitable

- If following national guidance and providing good, quality MCA-compliant care, should not be harshly treated

Pre – March 2014 Post – March 2014

Community settings

Further implications – coroners, palliative care

Significant impact for local authorities and providers

130,000 cases per annum

Majority in Care Home settings

CQC reported this as ‘lower than expected’

13,000 cases per annum

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National MCA Guidance

• In last few days/ weeks of life, consent before losing capacity can be taken to be consent to the conditions of care (providing no subsequent major change)

Palliative Care

• This is not, for families, a death in “state detention” and so professionals should act appropriately . Working with police, providers, GPs to ensure families are kept informed before the event - good communication absolutely key

Coroners DoLS

• All of this only applies to those who have a mental disorder, lack the specific capacity to consent the accommodation and who meet the acid test. [NB. Unconsciousness in itself not a mental disorder]

Eligibility

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DoLS – Spreading best practice important

Lots of helpful guidance materials including from Law Society, ADASS and DH. Easily found: http://www.mentalcapacitylawandpolicy.org.uk/resources-2/cheshire-west-resources/

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The future of DoLS – the challenge

The challenge: a system that delivers real benefits for individuals and their families (encourages their engagement), best use of health and care system funding, complements

(does not duplicate) other safeguards in the health and care system

Difficult fit in today’s health

and care system and with key

priorities

Supreme Court judgment: ten-fold increase in cases. DoL no

longer rare

Severe criticisms from Parliament: complexity

of legislation and variability in use

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Law Commission review of DoLS

Legislative Change?

Determined legislation should be considered in the round – “quick and dirty” changes may lead to more problems. Law Commission engaged as experts in law reform.

Law Commission has completed its public consultation. Achieved enthusiastic engagement. Await their suggested reviews – provisional report spring 2016. Final report and draft legislation end December 2016.

Final decision lies with Government. If legislative change preferred, will need to identify Parliamentary time and subject it to debate and scrutiny.

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MCA• The principles of the MCA are basic good practice and should be embedded in the

culture of all organisations providing care to vulnerable people.• CQC want to see evidence of this practice in inspections: not just lip-service• Keep a look out for developments on the new National Mental Capacity Forum

DoLS• They are about people, not paperwork. Good principles but the Law

Commission’s work is focussing on realising benefits for individuals and less bureaucracy for professionals.

Keep in touch

Conclusions

• What to hear your best practice – so we can disseminate• And your key challenges, concerns