The Mental Capacity Act and Deprivation of Liberty Safeguards

Implications for Commissioners and Care Providers

Bruce Bradshaw

Patient Experience Manager

NHS England – North Yorkshire & Humber

The outcomes people say they want -related quality of life

Accommodation cleanliness and comfort

Dignity

Food and nutrition

Safety

Personal cleanliness and comfort

Control over daily life

Occupation

Social participation and involvement

Feedback from People who use services

People want to feel safe but also to maintain relationships

Access to justice: criminal, social or restorative

Support with Difficult Decision Making

But, some 70% of all ‘social care clients’ lack capacity in some aspects of their decision making and need to be supported in the context of the Mental Capacity Act. This applies to some 80% of those in care homes.

We think we will get this...

...we get this!

The NHS Mandate

6

6Cs - Values essential to compassionate care

7

Care Compassion Competence

Communication Courage Commitment

Compassion is how care is given through relationships based on empathy, respect and dignity.

It can also be described as intelligent kindness and is central to how people perceive their care.

Competence means all those in caring roles mist have the ability to understand an individual’s health and social needs.

It is also about having the expertise, clinical and technical knowledge to deliver effective care and treatments based on research and evidence.

Communication is central to successful caring relationships and to effective team working. Listening is as important as what we say. It is essential for ‘No decision without me’.

Communication is the key to a good workplace with benefits for those in our care and staff alike.

Courage enables us to do the right thing for the people we care for, to speak up when we have concerns.

It means we have the personal strength and vision to innovate and to embrace new ways of working.

A commitment to our patients and populations is a cornerstone of what we do. We need to build on our commitment to improve the care and experience of our patients.

We need to take action to make this vision and strategy a reality for all and meet the health and social care challenges ahead.

Care is our core business and that of our organisations; and the care we deliver helps the individual person and improves the health of the whole community.

Caring defines us and our work. People receiving care expect it to be right for them consistently throughout every stage of their life.

Legal Framework• “Community care law remains a hotchpotch of conflicting

statutes….” Luke Clements Community care and the Law

• Statute

• Case Law

• Codes of Practice

• Professional Codes

• Contracts

• Policy

• Procedures

• Protocols

8

Legal Terms:

• Must• Should/Shouldn’t• May• Duty• …….

Legal Framework

Rights & duties on public bodies

Authority to act

against person’s wishes

Legal intervention with alleged perpetrator

Equality Act; Health & Social Care Act 2008 & 2012; NHS Community Care Act 1990

e.g. Mental Capacity Act/Deprivation of Liberty Safeguards; Mental Health Act

e.g. Fraud Act; Sexual Offences Act

Human Rights Act

Mental Capacity – A fundamental rights

• Must assume a person has capacity unless proved otherwise

• Must not treat people as incapable of making a decision unless you have tried all you can to help them

• Do not treat someone as incapable of making a decision because their decision may seem unwise

• Must not do things or, take decisions for people without capacity in their best interests

• Before doing something to someone or making a decision on their behalf, consider whether you could achieve the outcome in a less restrictive way

Mental Capacity Act

Principles

Mental capacity & duty of care• Adults have the right to make

decisions – including decisions about the risks they are willing to take.

• Adults may plan for future decisions

• The right to make an unwise decision does not abdicate a duty of care – helping individuals in making informed choices & taking reasonable steps to offer support

• Where adults lack capacity to make that decision, we have a duty to act in their best interests.

Low restriction High restriction

Authorised under section 5 & 6 of the Mental Capacity Act

Requires Deprivation of Liberty AuthorisationRestriction(s) resulting in

complete and effective control

All care must be in the persons best interest and least restrictive as is viable. Unlawful restriction is a safeguarding issue

Deprivation of liberty safeguard

Mental Capacity Act – Commissioners • Retains responsibility for assuring

through the commissioning process compliance with the MCA 2005 and DoLS legislation of all providers of health care

• Work with health providers and local authorities to ensure appropriate capacity in the system of professionals qualified to carry out best interest assessments

• Support the training and education of health professionals and best interest assessors to deliver effective safe quality patient services.

Indicators of how the MCA is being used include:Number of referrals to IMCAs (statutory advocates)Number of referrals for DOLSNumber of Best Interest Assessor (health) available and their competencies and capacity Do Trusts report Court of Protection cases to CCGs or Safeguarding Boards? Is this being used in contract monitoring

Some Question to ask: (there are more!)

15

• How will you assure that MCA leads have the right accountability, experience, knowledge and access to legal advise?

• Are you keeping abreast of case Law and Court of Protection?

• Do CCG assure themselves that the NHS complies with the MCA?

• What do contracts require trusts to report?

• Do they require any MCA audits?

• Do they stipulate that all staff need annual MCA training?

• Do they require whether Trusts have a MCA lead?

• Are you listening to the IMCA services as they will hold the best information on efficacy in your trusts