Capacity, Best Interest

& Duty of Care in Learning Disability Locked

Wards

Dr Khalid Mansour2009

“Capacity”, “Best Interest” & “Duty of Care”

Legal frame work > legal responsibilities

Patients:▪Protect human rights▪Protect from neglect▪Enhance standards of care▪Establish clear accountability

Professionals: ▪Guidelines for good practice▪Protects business from unfair claims

Capacity: Key Elements of The Act

(The Mental Capacity Act 2005): “Advanced Decisions”. “Best Interest”. New Court of Protection. New Lasting Powers of Attorney and

Deputies. New Office of the Public Guardian. Independent Mental Capacity

Advocate (IMCA). New Criminal Offence (negligence). DoLS: “The Deprivation of Liberty

Safeguards” (amended by the Mental Health Act 2007).

Capacity: The (5) Statutory Principles:(The Mental Capacity Act 2005)

Presumed to have capacity.Support to make their decisions.

“Unwise decision” is not “lack of capacity”.

Best interest rule.Least restrictive rule.

Capacity: Testing the Ability to Decide(The Mental Capacity Act 2005)

Understand the information

Retain that information Use or weigh that information

Communicate any decision.

Best Interest: Check List for Best Interests:(The Mental Capacity Act 2005)

Not simply age, appearance, condition or behaviour.

All relevant circumstances > be considered.

Encourage and enable to take part in decisions.

If later regain capacity > put it off if not urgent.

Past and present wishes, feelings, beliefs and values.

The views of other close people, attorney &/or deputy.

Duty of Care: Mental Health Professionals:(UNISON Duty of Care Handbook)

Keep knowledge & skills up to date.Provide service as expected within

profession.Accurate records.Not delegate work, or accept

delegated work, unless competence is clear.

Protect confidential information Public interest might justify

disclosure.

Applications in the L.D. Locked Ward: Preparing Patients for Admission

Involving LD specialist. Effective communication e.g. “ Total Communication”.

“Accessible Information”. Use of specially adapted tools for LD.

Specially adapted physical health care

‘Best interests’.

Applications in the L.D. Locked Ward: High Standards of Care

Assessment: comprehensive with good access to high quality investigations.

Provide objective and subjective methods to monitor progress and efficiency of care.

Access to specialist services.Multidisciplinary approach.Clear system of accountability.Clinical governance.

Applications in the L.D. Locked Ward: Personalisation of Care

Best InterestHuman rights Personal needsPersonal desires and valuesFamily, social network and relations.

Other professionals and carers.

Applications in the L.D. Locked Ward: Protection

Disability discrimination (Equality Act 2010)

“Advocacy” and legal representatives,

“Consent to treatment”. Self-help groups and support

organisations Mental Capacity Assessment and/or

Mental Health Act.Reviews, Managers Reviews, MHRT,

pre-discharge and after discharge care.

Protection from abuse > POVAConfidentiality Least restrictive options

Applications in the L.D. Locked Ward: Rabone vs Pennine Care NHS Trust (2012)

• A young woman hanged herself after erroneous home leave from hospital.

• The parents claimed > breach of the daughter’s right to life under Article 2.

• The Court of Appeal > operational obligation under Article 2 not owed to a patients who not detained.

• 8 February 2012: Supreme Court > • The operational obligation under Article

2 owed to voluntary patients• The parents were victims.• The claims were not time barred.

Some problematic reactions:“What a Waste of Time”

Too much paper work, not real-life, too complex:

Serious business.Serious consequences: Care

Principles (Lindon House), Vista Healthcare (Winchfield), Review of learning disability services (CQC; June 2012).

No paper work > consequences: Work has not been done The law is not respected.

Some problematic reactions:“We No Experts in Law”

No naïve in law too. “Limitations”:

Law, Interpretation (e.g. code of practice) Authorities

Asking: > the big art Numbers:

Single handed decision > mistakes less accepted.

Group MDT decision > mistakes more accepted.

Some problematic reactions:“We Do The Paper Work”

These laws are not a substitute to clinical care

Moral and professional duties above all

We are not he NHS; we are not protected > Castlebeck (Winterbourne View Hospital)

Safety in > “Very Good”.