Mental Capacity Act 2005 Application and Safeguarding Delivered

Mental Capacity Act 2005 Application and Safeguarding Delivered by Sarah OConnor 1

Housekeeping Facilities, Breaks, H&S, Mobile Phones, Evaluations 2

Outline for the session. What the Mental Capacity Act is l What decisions it covers… l …and does not cover l 5 principles of the Act l Assessing capacity and the two stage test l How to apply the Act in practice l Adult Safeguarding l 3

The audience Please tell us: Who you are l What your role is plus l Your level of confidence in working with the MCA (novice, beginner, intermediate, expert) and what you find most confusing about the MCA 4

Exercise 1 In small pairs, undertake quiz 1 (handout). You have 10 minutes and then we’ll spend another 10 minutes talking through the answers Don’t worry if you struggle! The purpose of this exercise is just to get you thinking about some of the language and concepts behind the MCA 5

Consent Qu. What do we mean when we talk about ‘informed consent’? Qu. What kind of ‘issues’ do you come across when thinking about ‘consent’ and your customers? 6

Valid Consent “Consent is the voluntary and continuing permission of a patient/person to be given a particular treatment, based on a sufficient knowledge of the purpose, nature, likely effects and risks of that treatment, including the likelihood of its success and any alternatives to it. Permission given under any unfair or undue pressure is not consent” Mental Health Act Code of Practice 7

Important Terms… Public Interest l Decisions about what is in the public interest needs to be made by balancing the rights of the individual to privacy with the rights of others to protection Vital Interests l A term used in the Data Protection Act 1998 to permit sharing of information where it is critical to prevent serious harm or distress, or in life-threatening situations 8

The MCA – Exercise 2 1. 2. 3. 4. 5. What do you think are the aims of the MCA? Who does the Act apply to? What sort of decisions does the Act cover? What decisions are not covered by the Act? When should a capacity assessment be undertaken? Spend 15 minutes discussing in pairs and jot down some ideas 9

Who does it apply to? A person who is aged 16 or over who lacks the capacity to make certain decisions for themselves. If there is no suggestion that a person may lack mental capacity to make the decision in question, the Act does not apply 10

Decisions it covers Decisions about day to day matters l what to wear l what to buy when doing the shopping l arranging household services l participating in activities and social inclusion l how to manage money l when and how to pay bills Decisions about major life changing events l whether to move into residential or nursing care, or supported living of some nature l carrying out diagnostic examinations and tests (to identify a health problem) l decisions around administration of medication l provision of emergency medical care l whether to undergo treatment including major surgical operation 11

What it doesn’t cover Decisions covering family relationships l Consenting to marriage or a civil partnership l Consenting to have sexual relations l Consenting to a divorce or a dissolution of a civil partnership Mental Health Act matters Where a person who lacks capacity to consent is detained and being treated under Part 4 of the MHA 1983, nothing in the MCA authorises anyone to: l Give the person treatment for mental disorder l Consent to the person being given treatment for mental disorder Voting Rights l Decision on voting at an election for any public office or at a referendum Unlawful killing or assisted suicide l For the avoidance of doubt, nothing in the Act is to be taken to affect the law relating to murder, manslaughter or assisting suicide 12

5 Statutory Principles Let’s reflect on what these mean: 1. Assumption of capacity – what goes wrong? 2. Support to make a decision – what goes wrong? 3. Right to make unwise decisions – what are the triggers for concern? 4. Where capacity lacking, decisions must be made in Best Interests – how do we do this? 5. . . and be the less restrictive option – why? 13

Best Interests The MCA Code of Practice gives 10 factors that must be considered in deciding what is ‘best interests’: l l l l l All relevant circumstances Might the person regain capacity? Past and present wishes Beliefs and values Other factors the person would consider Consult others Encourage the person to participate Is there a less restrictive option? Not based solely on age, appearance, behaviour or condition If concerning life sustaining treatment, the decision must not be motivated by a desire to bring about the person’s death Burdens and Benefits Checklist 14

Less Restrictive ‘Before 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’ Section 1(6) MCA 15

Balance Checklists Exercise Let’s use a flip chart and map out a balance checklist for a common decision 16

Assessing Capacity The Two Stage Test The diagnostic test 2. The functional test 1. Qu. Does anyone know what this means? 17

Stage 1 - The Diagnostic Test Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? l. Can be permanent or temporary, just has to be impacting on the person’s ability to make the decision, at the time it needs to be made. If the decision can wait until the person regains capacity, it should l. Just because this definition applies to the person. It does not automatically follow that they lack capacity to make decision, hence the second stage of the test Qu. Work in pairs for 5 minutes, can you name some examples of impairments or disturbances; create two lists; permanent and temporary? 18

Stage 2 – ability to make the decision If so, does that impairment or disturbance mean they are unable to make the decision at the time it needs to be made? The functional test 1. Do they have a general understanding of what decision needs to be made and why they need to make it, including the likely consequences of making or not making it? 2. Are they able to retain the information relevant to the decision for long enough to make it? 3. Are they able to use and weigh up the relevant information as part of the process of making the decision? 4. Can they communicate their decision, by whatever means and with whatever support may be helpful? 19

How to apply the Act in practice In groups of two or three, take the case studies. I want you to: 1. How would you apply the diagnostic test to this situation? 1. Work through the functional test (understand, retain, use and weigh, communicate), thinking about what questions you would need to ask and what information you would need to give to identify whether the person had capacity or not DO NOT MOVE INTO BEST INTEREST DECISION-MAKING AT THIS STAGE! 2. Have a think about how you might use the Benefits and Burdens model to consider Best Interests. . . 20

Consent, Capacity & Safeguarding 21

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Inherent Jurisdiction Doctrine of English common law that a superior court has jurisdiction to hear any matter that comes before it, unless a statute or rule limits that authority or grants exclusive jurisdiction to some other court or tribunal l The regulations of the MCA have replaced the inherent jurisdiction of the High Court in the case of mentally incapacitated people. However, the High Court has gradually extended use of inherent jurisdiction to the group of vulnerable adults – adults who possess decisional capacity but still require protection for certain reasons. l 23

l The aim of the High Court in these cases is (most often) preemptive intervention; to prevent the circumstances within which an adult might not be able to exercise a free choice at some point in the future 24

Advocacy l Person concerned lacks mental capacity OR l will have substantial difficulty participating in the process 25

Template for Assessment In your handout pack, you have an example of a template for Capacity Assessment – take a look at it……… ……. . any questions? ? ? 26

Remember……. Acts do not incur legal liability IF…… proper assessment of capacity and best interests has been done and the Code of Practice has been followed 27

Lastly…. Public Interest Duty l l l l Care Act 2014 Share information at an early stage; information sharing agreements or protocols should be in place Common law Duty of Confidentiality Right to confidentiality is not absolute. Does the public interest served by disclosure of personal information outweigh the public interest served by protecting confidentiality? Could your action prevent a serious crime? Human Rights Act 1998, Article 8 (right to respect for private life) Article 8 is not an absolute right and can be overridden if necessary and in accordance with the law. Interference must be justified and be for a particular purpose, Decision and reasoning should be recorded Data Protection Act 1998 ‘Vital interest’ – permits sharing of information where it is critical to prevent serious harm or distress, or in life-threatening situations GDPR. 2018 lawful basis for processing data; consent, contract, legal obligation, vital interests, public task, legitimate interests. *NEW* Crime & Disorder Act 1998 Sec 115 ‘where disclosure is necessary or expedient for the…. reduction and prevention of crime and disorder’ Mental Capacity Act 2005 28

Deprivation of Liberty Safeguards 2007 Qu. Can anyone tell us what these are, what they relate to and why they were introduced? 29

Why do we have them? The Bournewood Ruling https: //www. youtube. com/watch? v=pz 5 Ecovjs 4 w&t=217 s Steven Neary http: //www. independent. co. uk/news/uk/home-news/mark-neary-the-father-who-opened-up-secretcourts-7794174. html https: //www. youtube. com/watch? v=8 d_l. Foz. Fnsw 30

What are they? Exists to provide proper legal process & protection where DOL appears unavoidable in a persons best interests Every effort should be made to avoid a DOL, and where authorised it should be for no longer than necessary The safeguards are designed to prevent arbitrary decision to deprive an individual and gives a right to challenge the decision The process • Managing Authority (Hospital or Care Home) seeks authorisation from the Supervisory Body (LA) via either a standard or urgent application • Supervisory Body will consider all relevant assessments (6) and where a deprivation is found that is both less restrictive and in Best Interests, the application is authorised for a set period, not to exceed 12 months 31

How do we know if someone is ‘deprived of their liberty’? The Cheshire West Judgement 32

Questions, comments, concerns? 33