APPLYING THE MCA IN EVERY DAY PRACTICE MCA

APPLYING THE MCA IN EVERY DAY PRACTICE MCA PROJECT SUPPORTED BY DUDLEY, WALSALL AND WOLVERHAMPTON CCGS

Purpose of training session To look at how the Mental Capacity Act applies to your role including: • • • The 5 Principles of the act The two stage test Best interest decisions ADRTs/Lasting Powers of Attorney Protection from liability

Setting the scene- what are our rights? Human Rights Act 1998 • Article 2 –Right to life • Article 3 – Prohibition against torture and inhuman or degrading treatment • Article 5 – Right to liberty and security of person • Article 8 – Right to private and family life

“I was born with spinal muscular atrophy, a so- called “terminal” condition. I cannot lift my head from the pillow unaided and I need a ventilator to help me breathe at night. I use a powered wheelchair and have a computer on which I type with one finger. ” “In January 2003 I was hospitalised with severe pneumonia in both lungs. On two separate occasions, doctors told me they assumed that if I fell unconscious I wouldn’t want to be given lifesaving treatment. I was so frightened of what might happen to me that I kept myself awake for 48 hours. “

• . “My husband brought in a photo of me in my graduation gown and stuck it on the bed-head to remind the hospital staff that there was more to me than the shrivelled form they saw lying in front of them. I was lucky: although I could barely breathe, I had an assertive husband insisting to the authorities that I had everything to live for. Imagine what it would be like if you were too weak to communicate. Or your relatives less positive about the quality of your life. ”

Jane Campbell, now Baroness Jane Campbell DBE, writing in The Guardian, 26 August 2003. At the time of writing she was a Disability Rights Commissioner. She is now an Equality & Human Rights Commissioner.

Why was the Mental Capacity Act Introduced?

The Mental Capacity Act 2005 was implemented in 2007 It offers us a framework that governs, supports and upholds the principles of choice and selfdetermination in people’s decision making. It is about human rights, dignity and enablement.

But in 2014 The Mental Capacity Act was a visionary piece of legislation for its time, which marked a turning point in the statutory rights of people who may lack capacity… with the 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 rights conferred by the Act have not been realised. • House of Lords Select Committee on the Mental Capacity Act, March 2014

Key things we all need to know

The 5 Statutory Principles of the Act -the pillars of the Act A person must be assumed to have capacity unless it is established that they lack capacity.

A person can make an unwise decision. This does not necessarily mean they lack capacity…… Image from runsuerun

MCA Principles contd. No-one should be treated as unable to make a decision unless all practicable (realistic) steps to help them have been exhausted and shown not to work. . . How can we help people make their own decisions?

MCA Principles contd If it is deemed that a person lacks capacity then any decision taken on their behalf must be in their best interests

AND FINALLY 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 used.

Remembering and reflecting on the Principles P L U M B

Reflecting on the principles

The MCA is everyday Each time we ask a someone to consent / make a decision we must always consider their capacity. The Act relates to ALL decisions and is about empowering people and enabling choice It’s something we do with people, not to people The MCA is not a piece of legislation removed from everyday front line work.

THE MENTAL CAPACITY TEST Who assesses capacity? The person most involved and Knowledgeable about the decision should ideally be the person assessing the person’s capacity

What is the test? The MCA capacity test is called the two stage test. The test always relates to a specific decision at a specific time

THE CAPACITY TEST STAGE ONE STAGE TWO • Does the person have an impairment of or a disturbance in the functioning of the mind or brain? • Is the impairment or disturbance sufficient to cause the person to be unable to make that particular decision at the relevant time? What do you think this means?

How can we know that someone is unable to make a decision? The MCA states that a person is unable to make a particular decision if they cannot do one or more of these four things 1, Can the person understand information relevant to the decision? 2. Can the person retain the information long enough to be able to make the decision? 3. Can the person use or weigh up the information available to make the decision? 4. Can the person communicate their decision?

Triggers for an assessment? We always start with a presumption of capacity, then take into account The person’s behaviour Their circumstances Any concerns raised by other people.

Assessing capacity- key points The 2 stage test must be used when capacity is in doubt. Completed by the person directly involved in the treatment/decision Must be decision specific Must be documented

Scenario –assessing if an impairment is affecting someone’s ability to make a decision • Mrs Collins is 82 and has had a stroke. This has weakened the left-hand side of her body. She is living in a house that has been the family home for years. Her son wants her to sell her house and live with him. Mrs Collins likes the idea, but her daughter does not. She thinks her mother will lose independence and her condition will get worse. She talks to her mother’s consultant to get information that will help stop the sale. But he says that although Mrs Collins is anxious about the physical effects the stroke has had on her body, it has not caused any mental impairment or affected her brain, so she still has capacity to make her own decision about selling her house.

BEST INTEREST DECISIONS The question of all questions? How do I know what is in this person’s best interests?

Best Interests Exercise Favourite colour Favourite meal Favourite holiday destination Resuscitation or not?

Key information on best interest decisions MCA provides a checklist to follow Always puts “P” at the centre of the process. Starting point is P’s wishes and feelings Involves consultation Least restrictive option Process must be documented

Best Interest Decisions- general rule the more complex or important the best interests decision the wider the involvement and the more detailed the recording.

Care Planning The preparation of a care plan should always include an assessment of the person’s capacity to consent to the care plan, and if the person lacks capacity- must confirm that those actions are agreed to be in the person’s best interests.

MENTAL CAPACITY ACT MYTH MY SPOUSE/FAMILY/FRIEND CAN MAKE DECISIONS ON MY BEHALF IF I LACK CAPACITY

Using the MCA to plan in advance

Powers of Attorney - Lasting and Enduring LPA Property & Affairs LPA Health & Welfare Enduring Power of Attorney

Advance Decisions to Refuse Treatment ADRT A way of making sure others, including doctors, know about any treatment that a person wants refuse in the future- should they lack capacity to make the decision themselves. Must be written and witnessed if it relates to refusing life sustaining treatment , otherwise can be verbal

Legally binding if. . The ADRT is considered to be § valid and § applicable

ADRTS Support for everyone. • www. mydecisions. org. uk • A free website which allows a person to draft an Advance Decision or Advance Statement online. It has been designed in collaboration with patients, clinicians and lawyers

Finally- if you keep to the principles and have. . . Reasonable belief the person lacked capacity YOU HAVE PROTECTION FROM LIABILITY Reasonable grounds for believing actions taken were in their best interest

DEPRIVATION OF LIBERTY IN AN ACUTE HOSPITAL & CARE HOME SETTING MCA PROJECT SUPPORTED BY DUDLEY, WALSALL AND WOLVERHAMPTON CCGS

Covering DOLS • The background DOLS • Providing care using the MCA DOLS • Restriction vs Deprivation DOLS • The Acid Test DOLS • IMCA & the RPR in Dols DOLS • Practice issues DOLS • Free resources

The Background • Do. LS came into force in 2009. • Introduced due to a 2004 ECHR ruling known as HL v UK which exposed a loophole in law • Provides legal protection for vulnerable people who lack capacity to consent to their care, are deprived of their liberty in a hospital or care home and this deprivation is unavoidable and in their best interests

WHAT HAPPENS WHEN A PATIENT LACKS CAPACITY TO CONSENT TO CARE/TREATMENT? The majority of patients/residents who lack capacity to make decisions about their care and treatment and admission to or discharge from hospital/care home can be treated in their best interests under s. 5 MCA 2005

Restriction of liberty Can only be done if we have very clear reasons for doing so, The MCA talks of restraint when considering restriction of liberty. What is restraint? Why might you need to use it?

What the MCA says about restraint Section 6(4) of the Act states that someone is using restraint if they: • use force – or threaten to use force – to make someone do something that they are resisting Or § restrict a person’s freedom of movement, whether they are resisting or not.

When can restraint be used? Restraint may be used provided that the person using restraint reasonably believes that it is necessary to restrain the patient in order to prevent harm to the patient, and that the act is a proportionate response to the likelihood of the patient suffering harm, and the seriousness of the harm.

When does restriction of liberty become deprivation of liberty? Restrictions of liberty for a person lacking capacity are common and often necessary practices if used for the right reasons. Any use of restriction must be included in the persons care plan with a full risk assessment and a record of consultation

How do we recognise a deprivation of liberty?

Cheshire West Care providers don't have to be experts about what is and is not a deprivation of liberty. They just need to know when a person might be deprived of their liberty and take action. The ‘acid test’: 1. Is the person subject to continuous supervision and control? All 3 aspects are necessary. AND 2. Is the person free to leave? The person may not be saying this or acting on it, but the issue is about how staff would react if the person did try to leave. In all cases, the following are not relevant to the application of the test: § The person’s compliance or lack of objection § The relative normality of the placement (whatever the comparison made) § The reason or purpose behind a particular placement ‘A Gilded cage is still a cage…. . ’ Lady Hale

The acid test in a hospital/care setting What actions would staff take if the person tried to leave? Will the deprivation last for more than a negligible amount of time? Can the person give consent?

What about emergency care? Emergency life-sustaining interventions and the provision of emergency care to a patient lacking consent to such treatment should always be given as clinically required and there should never be any delay for prior deprivation of liberty authorisation to be sought.

The role of an IMCA in Do. LS Three possible IMCA roles in DOLS § 39 A IMCA- must be instructed during Dols assessment if there is no one appropriate to consult § 39 C IMCA- if there is no one able or willing to be the RPR § 39 D IMCA-if the person on Dols or their RPR asks for an IMCA

The role of the Relevant Person’s Representative in Do. LS (RPR) ROLE OF THE RPR • Provide continuing support and regular contact • Ensure that all people involved in the care uphold the person’s rights and act in their best interests • Help the person to voice their concerns • Assist the person to make a complaint • Challenge, both formally and informally, any deprivation of liberty • Make an application to the court of protection

Community Do. LS If a person is being cared for somewhere other than a care home or hospital, deprivation of liberty will only be lawful with an order from the Court of Protection

Practice issues for Do. LS q. Identifying a DOL. q. What happens when the supervisory body fails to complete the Do. LS assessments in the time frame? q. Reviewing the DOL q. Fluctuating capacity q. Death on a DOL q. Fully informing & involving the RPR

Codes of Practice Provide guidance on the application the MCA. We have a legal duty to show regard to the codes and must give good reason if we depart from its guidance

Online resources and Apps §Free Apps §SCIE

Examples of some of our work. .

Free Resources Newsletter pens coasters postcards Training DVD Factsheets, toolkits, guidance public information GP resources http: //www. dudleyccg. nhs. uk/mental-capacity-actproject/