MCA/DOLSUpdate

Mental Capacity Act&

Deprivation of Liberty Safeguards

• Everyone who works with people who lack

capacity is legally required to work within the Mental Capacity Act and have regard to the Code of Practice.

GROUP EXERCISE

Good Medical Practice in Action

11 Key MCA messages

1. Always start from an assumption of capacity2. Capacity is time specific and decision specific3. People with mental health problems, dementia,

learning disabilities often maintain the capacity to make some decisions for themselves

4. We must encourage, assist and support people to make their own decisions if possible.

5. If it is likely that the person may regain capacity we must consider whether the decision can wait.

6. Can the person understand, retain & use and weigh up the relevant information and communicate their decision? If so, they have capacity.

7. People have the right to make unwise decisions

8. It is not just mental illness & learning disability that impair capacity. Other examples include:

brain injury, physical illness, substance abuse, shock, side effects of medication.

9. If the person meets the criteria we may be breaking the law if we don’t involve an IMCA.

10. If the person is found to lack capacity we must consult other people e.g. family, friends, carers.

11. Refer to the Mental Capacity Act Code of Practice for any questions you have. It’s a great book!

The Human Rights Act• Article 5: No one shall be deprived of his liberty (other

than) in accordance with a procedure prescribed by law”…”everyone who is deprived of his liberty…shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by the court and his release ordered if the detention is not lawful”

• Article 8: Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

It all began with………

“The Bournewood Case”HL v UK v ECHR (2004) …

• Harry admitted to Bournewood Hospital July 1997

• Discharged back to his carers in December 1997 following Court of Appeal ruling

• The Enderbys took the case to The European Court of Human Rights to stop arbitrary detentions of people like Harry who lacked capacity to consent

• The ECHR ruled that Harry’s Article 5 rights had been violated

youtu.be/pz5Ecovjs4w

HCHR - deprivation of liberty has 3 elements….

• 1. The objective element of a person’s confinement in a certain limited place for a not negligible amount of time

• 2. an additional subjective element that they have not validly consented to the confinement in question

• 3. the confinement must be imputable to the state

What the DOLS Code of practice says…

The European Court of Human Rights (ECtHR) and UK courts have indicated that the following factors can be relevant to identify deprivation of liberty (not exclusive, may change with case law):

• Restraint is used, including sedation, to admit a person to an institution where that person is resisting admission

• Staff exercise complete and effective control over the care and movement of a person for a significant period

• Staff exercise control over assessments, treatment, contacts and residence

What the DOLS Code of practice says…continued

• A decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate

• A request by carers for a person to be discharged to their care is refused

• The person is unable to maintain social contacts because of restrictions placed on their access to other people

• The person loses autonomy because they are under continuous supervision and control

The Neary Case(London Borough of Hillingdon v Neary (2011)EWHC 1377

COP)

• Steven Neary, aged 21, was removed from the care of his father by Hillingdon Council in December 2009

• He remained in a council run care home (despite his & his father’s objections) until December 2010 when he was returned home by the court

• He had been subject to a succession of DOLS authorisations since April 2010. The Court found that these authorisations had been unlawful, and that he had been unlawfully deprived of his liberty throughout the whole 12 month period

Lessons from case lawWhenever anyone make a best interests decision they must: • follow, and evidence that they have followed, the full

best interests assessment process set out in the MCA Section 4 (the best interests checklist)

• have regard to a person’s Article 5 and Article 8 rights• consult as far as possible with the person themselves• consult with close family and friends (unless there are

very strong grounds to exclude them)

If a decision has to be made on behalf of a personwho lacks capacity it should be made collaborativelywherever possible.

Restraint or deprivation?

Examples of restraint Moving towards Possible deprivation

Proportionate restraint being used

to administer a necessary blood test

Proportionate restraint being

used to return a person who has left a unit & is

walking confused & unsafe in a busy

road

An individual being prevented from leaving a

unit unescorted

Only allowing visiting at certain times

Needing to distract/persuade

someone away from a door when they are

sometimes asking to leave

Keeping someone under constant

supervision

Giving a person covert medication in their own

best interests when they lack capacity & are refusing to take tablets

Force or restraint being used to admit a

person

Preventing a person from going out with

relatives

Having to frequently prevent

someone from leaving when they

object to being there

A person being unable to

maintain social contacts

Staff exercising complete control

N.B. ‘Proportionate restraint’ is the least amount of force for the shortest possible time

MCA Principle 5

“ Before any act is done or decision made

regard must be had to whether it can be

achieved in a way that is less restrictive of a

person’s rights and freedom of action”

DoLS: The Process

D) Best interest assessor recommends

period

Age assessment

A) Hospital or care home managers identify those at risk of deprivation of liberty & request authorisation from

supervisory body

B) Assessment commissioned by supervisory body. IMCA appointed for unbefriended

C) Request for authorisation

declined

Mental health assessment

Mental capacity

assessment

No Refusals assessment

Best interest assessment

Eligibility assessment

Any assessment

says no

All assessments support

authorisation

In an emergency hospital or care home can issue an urgent authorisation for 7

days while obtaining standard authorisation

F) Authorisation is granted and persons representative

appointed

E) Best interest assessor

recommends person to be appointed as

representative

G) Authorisation implemented by managing authority

Managing authority requests review

because circumstances change

Authorisation expires and Managing authority

requests further authorisation

H) Review

Person or their representative

appeals to Court of Protection

which has powers to terminate

authorisation or vary conditions

Person or their representative requests

review

CQC Responsibilities

CQC will look at documents and records of applications and authorisations and may want to see: • Completed forms • Details of any conditions imposed • Any requests for review • Evidence of regular monitoring • Plans of care, treatment and support • Other relevant documents

• Apply for an authorisation if you feel someone in your care home may be deprived of their liberty.

• Inform the person, and their relatives, of application and authorisation if one is given.

• Inform CQC when making an application and inform them of the outcome of the DoLS assessment (Outcome 20, Regulation 18).

• Make relevant documents available to DoLS assessors

• Inform the person registered under the Care Homes Act.

Managing Authority responsibilities

Managing Authority responsibilities contd…

• Check that the RPR is keeping regular contact with the person.

• Act on any conditions set as part of the authorisation.

• Inform the supervisory body if– circumstances change – conditions can not be met– requirements for DOLS may no longer be met– RPR is not maintaining regular contact with RP

• Inform Coroner if a person dies while subject to a DoLS Authorisation

Hertfordshire Supervisory Body SFAR 016 Farnham House  Six Hills Way   Stevenage SG1 2FQ

email: dolsteam@hertscc.gov.uk

phone: 01438 843800    

fax: 01438 844312 (NB: We ask that you always follow up a fax with a telephone call to check we have received the fax)

Any questions?

Thank you