Mental Capacity Act & Deprivation Of Liberty

Safeguards(Alerter Level – adults / Group 3 – children and young people)

“Protecting and promoting the rights of people who lack capacity”.

with

Sarah Biddulph

Health and Safety• Fire

• Toilets

• Smoking

• Phones

• Breaks

• Learning Material

• Certificates

Learning Agreement

• Look after each other – this is a difficult subject

• Listen but do not be afraid to respectfully challenge each other

• Ensure examples from real cases remain anonymous.

• If you discuss information about a person who is at risk of significant harm, this information will have to be passed on to the appropriate agency.

• Please ask questions!

Outcomes

By the end of the module you will:

– Be able to put the principles of the mental capacity act into practice

– Be able to assess and record mental capacity assessments

– Be able to make best interest decisions– Understand the process for depriving a person of their

liberty in order to keep them safe from harm– Be aware when and how the Act applies to children

and young people

Emily’s Safety

Watch the introduction to the film and decide in your group what the care worker/care home should do about this situation.

Aims of the Act

• To protect the rights of people aged 16 years or over to make their own decisions (now and for a future time when they may lack the capacity to do so).

• To tell us what do when we are concerned about people’s ability to make decisions for themselves.

NB: The legislation around MCA & DLS is still evolving as more cases come to court.

Capacity

What could affect someone’s capacity

(ability) to make a decision?

Assessing Capacity

If you believe someone is having difficulty making a decision you should carry out a mental capacity assessment

Assessing Capacity

• Can the person understand the information relevant to the decision to be made?

• Can the person remember the information for long enough to make the decision?

• Can the person weigh up the information in order to make the decision?

• Can the person communicate their decision (by talking or any other means)?

Assessing Capacity

If the answer to all of these questions is yes, the person is deemed to have the capacity to make the decision. They have the right to choose

what will happen even if this is risky.

If the answer to any of these questions is no, then the person is deemed to lack the capacity to make the decision. Ensure the best interest decision making process is followed, continue to involve the person as much as possible and consider the need for an IMCA.

Assessing CapacityJohn, 17, has a brain injury and lives with his parents and 3 younger siblings. He has recently started attending college, made new friends and seems to enjoy his time there and the independence it gives him. He receives DLA but his mother complains that he's never got enough money to pay his rent. You suspect that his 'friends' may be taking advantage of him.

When you see John you ask him about college and his new friends. He says he often takes them out for a burger at lunch time rather than eating their packed lunches. You ask him what he thinks about this and he says he doesn't mind. You say 'it must be expensive' and he agrees. John tells you that he had trouble paying his rent last week and he adds "I have to keep up to date with my bills or my mum will chuck me out."

Assessing Capacity (cont…)

You ask him why he buys most of the burgers and he says that he loses track of whose turn it is and so when his friends tell him it's his turn he buys them. He says he doesn't mind because he enjoys going out with them. You say that it doesn't seem fair and he agrees. He says his friends think it’s fair because he gets DLA and he’s got more money than them. You ask him what he could do to make the situation better and he says he could take less money out with him or he could keep a record of what he buys but he won't do these things because he doesn't want to lose these friends.

Does John appear to have capacity about this issue?

5 Principles1. A person must be assumed to have capacity unless it

is established that they lack capacity. 2. 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.

3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

Unwise Decisions Summary

• If people have capacity you must still actively encourage safe, healthy behaviour, revisit assessments if evidence emerges that the person may lack capacity. You do not have the right to stop people making capacitated, free choices.

• If people lack capacity, you must follow the best interest process.

Best Interest Checklist• Decisions never made solely on the basis of a persons age, appearance

or other aspect of behaviour that might lead others to make unjustified assumptions.

• Account for all relevant circumstances• Is there a likelihood of regaining capacity – could the decision be

delayed?• As far as possible encourage the person to participate.• If life-sustaining treatment then the decision must not be motivated by a

desire to bring about their death.• Can we ascertain the persons past and present wishes, feelings, beliefs

and values?• Consider the views of other people eg. anyone formerly named by the

person to be consulted, those involved in caring for the person, those interested in their welfare, lasting power of attorney or any court deputy.

• Consultation Independent Mental Capacity Advocate if required.

Independent Mental Capacity Advocates

An Independent Mental Capacity Advocate must be

instructed where a relevant best interest decision is being

made for an individual who lacks capacity and who has no

appropriate unpaid representative.

Relevant decisions are:• serious medical treatment • a hospital admission likely to last for more than 4 weeks• a move of accommodation likely to last more than 8 weeks• Deprivation of Liberty authorisations When decisions relate to Safeguarding investigations an IMCA can represent

victim or perpetrator if they lack capacity regardless of whether or not they have unpaid representation.

.

Time for a break

Best interests

Watch the film ‘Emily’s Safety’.

• Do you think the right decision was reached? Why/why not?

• What was done well and what could/should have been done differently?

Best Interests

The Mental Capacity Act protects those carrying out a best interest decision from liability if:

• they reasonably believed the person lacked capacity

• they reasonably believed that they were acting in the person’s best interests

and• they were not negligent in carrying out the act

Record KeepingIt is essential that good record keeping is maintained throughout the decision making process. The minimum that should be recorded is:

– What the decision was – Why the decision was made – How the decision was made – When the decision was made

You can record assessments and decisions in a person’s daily notes or by using the FACE assessment tool.

Principle 5

Before the act is done, or the decision is made, regard must be had to whether the purpose for

which it is needed can be as effectively achieved in a way that is less restrictive of the

person’s rights and freedom of action.

There may be times when we need to restrict someone’s rights and freedom of action

(to protect them from harm)

People Who Lack Capacity

The MCA states:

• the person taking action must reasonably believe that restraint is necessary to prevent harm to the person who lacks capacity and

• the amount or type of restraint used and the amount of time it lasts must be a proportionate response to the likelihood and seriousness of that harm.

(MCA CoP section 6.41)

Recent Case Law

• There has been a Supreme Court Judgement

• This is currently being considered at a strategic level in Devon and some aspects of the judgement reflect in this training.

• Any future changes in practice would be communicated across the network of agencies trained.

• •Additional information is available from CQC and decisions need to be taken by providers at a local level at this time

Restraint v Deprivation of Liberty?

• Where there are multiple restraints or one restraint that impacts significantly on the rights and freedom of action of an individual, this may amount to a deprivation of liberty.

• This is more than just restraint and amounts to taking ‘complete and effective control’ of a person’s life.

Restraint v Deprivation of Liberty?

Questions to consider in relation to people who lack capacity to consent to their care arrangements.

Is the person under continuous supervision and control?

Is the person free to leave?(consider how staff might react if the person did

ask to leave or relatives asked to remove them)

Lawful Restraint v Deprivation of Liberty

Consider the short examples and decide whether they would be regarded as lawful restraint or a deprivation of liberty.

Restraint v Deprivation of Liberty?

• People living in hospital and care home settings have legal protection under the Deprivation of Liberty Safeguards

• If the restraint amounts to a deprivation of liberty, referral to the Local Authority DLS team will be required (18 years or over). They will then assess whether or not this is in the person’s best interests.

• A deprivation of liberty is illegal if not in a persons best interests.

Restraint v Deprivation of Liberty

Consider Pauls story

What ideas do you have about a less restrictive approach to his care?

In his Fathers words “do you really have to do this?”

Applying for Authorisation

• The Care Home or Hospital makes a referral to the Local Authority DLS team and requests a Standard Authorisation. Formal assessment by a Best Interest Assessor will take place within 21 days.

• Notify CQC of the application and the outcome.

• For providers of other services such as Supported Living an application through the Court of Protection would need to be made.

Emergency Situations

• In an emergency, a care home or hospital may legally deprive a person, aged 18 or over, of their liberty for up to 7 days, if they feel the criteria have been met.

• They need to inform the Local Authority DLS team when they do this.

• A formal assessment will then take place within 7 days.

• Where 16 &17 year olds need to be deprived of their liberty an application to the Court of Protection or a Mental Health Act assessment would need to take place.

Concerns

If you have a concern that people in your care are being deprived of their liberty speak to the manager of the

service.

SummaryThe MCA states that people have the right to: • Make their own decisions• Have help to make decisions• Make decisions that other people disagree with (as long as

they understand them). We retain a duty of care for these people which means we should actively encourage safe, healthy behaviour. However, too much pressure could be seen as abusive.

• Have decisions made in their best interest if they lack capacity, this may include using proportionate restrictions and restraint to keep them safe

• Have their rights and freedom of action restricted as little as possible

Good record keeping is essential.

Mental Capacity Action Plans

When I get back to my workplace I will:• Read……• Speak to……• Find out……• Tell……• Ask……• Change……

For advice about applying the Mental Capacity Act or Deprivation of Liberty Safeguards contact the advice line on: 01392-381676