Mental Capacity Act and the Deprivation of Liberty

Mental Capacity Act and the Deprivation of Liberty Safeguards Andrea Gray Mental Health Legislation Manager Welsh Government

Mental Capacity Act ( MCA) Principle 1: A presumption of capacity n Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise. This means that you cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability

Principle 2: Individuals being supported to make their own decisions n A person must be given all practicable help before anyone treats them as not being able to make their own decisions. This means you should make every effort to encourage and support people to make the decision for themselves. If lack of capacity is established, it is still important that you involve the person as far as possible in making decisions.

Principle 3: Unwise decisions n People have the right to make what others might regard as an unwise or eccentric decision. Everyone has their own values, beliefs and preferences which may not be the same as those of other people. You cannot treat them as lacking capacity for that reason.

Principle 4: Best interests n If a person has been assessed as lacking capacity then any action taken, or any decision made for, or on behalf of that person, must be made in his or her best interests.

Principle 5: Less restrictive option n Someone making a decision or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person’s rights and freedoms of action, or whethere is a need to decide or act at all. In essence, any intervention should be proportional to the particular circumstances of the case.

Decision Making n n n Does the individual have all the relevant information needed to make the decision? If there is a choice of options, has information been provided on the alternatives? Have the communication needs of the individual been taken into account? The information needs to be presented in a way that is easier for them to understand.

Decision Making n n Have different communication methods been explored, including obtaining professional or carer support? Consider the risks and benefits, including describing the consequences of making a decision, and making no decision.

Capacity? n Stage 1. Is there an impairment of, or disturbance in the functioning of a person's mind or brain? If so, n Stage 2. Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?

Capacity? n n Understand information given to them Retain that information long enough to be able to make the decision Weigh up the information available to make the decision Communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand

The IMCA Role n n An IMCA safeguards the rights of people who: • are facing a decision about a long-term move or about serious medical treatment; • lack capacity to make a specified decision at the time it needs to be made; and • have nobody else who is willing and able to represent them or be consulted in the process of working out their best interests, other than paid staff.

IMCA n n n The IMCA service is provided for any person aged 16 years or older, who has no one able to support and represent them, and who lacks capacity to make a decision about either: • a long-term care move; • serious medical treatment; • adult protection procedures; or • a care review

Deprivation of Liberty Safeguards (Do. LS n The Deprivation of Liberty Safeguards ( Do. LS) were introduced as an annex to the MCA largely as a result of an ECHR judgment regarding a man deemed to have had his liberty deprived without adequate safeguards in place to protect his human rights.

Do. LS n n Do. LS provides a safeguarding mechanism to ensure those without the capacity to consent to their liberty being deprived have that deprivation authorised. In 2008 it was anticipated in Wales there would be approximately 1200 such authorisations a year. Since implementation there have been, on average, between 500 and 600 authorisations a year.

Supreme Court Judgment n n A recent Supreme Court judgment has significantly widened the definition of those that will now be considered as having their liberty deprived in hospitals and care homes and will therefore need Do. LS authorisations. It also widened the scope of those considered deprived without capacity receiving state care in the community. ‘A gilded cage is still a cage’. These deprivations will now need to be authorised by the Court of Protection.

Supreme Court Judgment n This means there is the potential for many individuals with dementia and receiving state care could now be said to having their liberty deprived and would now need a Do. LS authorisation.

Supreme Court Judgment n n The likely increase in Do. LS applications and particularly the increase in the work resulting in applications to the Court of Protection are difficult to predict. We are currently monitoring this situation however indicative estimates are of a 10 fold actual increase in practice. This would mean a five fold increase in the original predicted average number of Do. LS assessments taking place. This does not include applications to the Court of Protection

House of Lords n Recommendations re Awareness of MCA n Recommendations re Do. LS

Actions Plan for Wales n n Awareness Raising All Wales conference Training - expectations Role of IMCA