Mental Capacity Act and Deprivation of Liberty, news and case law update - Ben Troke - October 2016
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Transcript of Mental Capacity Act and Deprivation of Liberty, news and case law update - Ben Troke - October 2016
@BJhealthlaw
@BJhealthlaw
Case law update
6 October 2016
@BJhealthlaw
• news
– DoLS statistics
– DoLS in dispute
– the Law Commission
– DoL in ICU
• case law – AG (covert medication)
• topic – MCA / DoL and discharge decisions
• NHS Digital – 28.9.16
• 2015/16 - c196,000 applications received
– 2014/15 - 137,500
– 2013/14 - 13,700
• monthly level of applications seems to
have leveled off (c17,000 pcm)
@BJhealthlaw
@BJhealthlaw
@BJhealthlaw
Percentage granted / not granted
@BJhealthlaw
@BJhealthlaw
@BJhealthlaw
“it has also been noted anecdotally that
more applications tend to be received from
a care provider in the month after
inspection by the CQC”
@BJhealthlaw
• more than 42% of applications made in 2015/16 had not been
processed
@BJhealthlaw
• including more than 1/3 of the applications that were made in
April 2015 - ie 1 in 3 applications have gone the whole year
unprocessed
@BJhealthlaw
• average case not yet reviewed was 215
days old
• oldest unprocessed referral is c800 days?!
• only 29% of applications were dealt with
in <21 days (down from 56%)
@BJhealthlaw
@BJhealthlaw
• judicial review being brought by 4 local
authorities of the alleged failure of
government to fully fund DoLS system
• permission to proceed to a substantive
hearing has been granted
• watch this space!
@BJhealthlaw
• no news since May 2016 paper revised
scope and approach
• still expect publication of proposals by
end of 2016
• implementation date likely to be affected
by Brexit and other demands on policy
and parliamentary attention – maybe
2018-2019??
@BJhealthlaw
• Ferreira v Coroner of Inner South
London
• listed in Court of Appeal mid
December 2016.
@BJhealthlaw
• Mrs AG - 92 y/old with Alzheimer’s
• care home under a DOLS authorisation
• lacked capacity re: care, treatment and
residence
• covert medication - thyroxin and
diazepam
@BJhealthlaw
• no provision of ongoing review of covert
use of medication
• best interests decision making process
without family member, RPR, or other
representative for AG
• covert medication should be “exceptional”
• prior best interests decision on this should
involve family and professionals
• plan must be explicit in the records
including a plan for ongoing, regular
review
• if no agreement – refer to Court
• likely to be at least a “contributory
factor” to a DoL
@BJhealthlaw
• “possibly monthly” reviews
• more regular review – more likely DoL
authorised for longer
• any change of covert medication should
trigger a review
@BJhealthlaw
• “alternate medication, similar in
prescription, may not do so; a change in
prescription in strength/dosage nature and
effect will almost certainly do so”
@BJhealthlaw
• NB – this is a holistic review – not just
medical indication, but (re)consideration
of best interests
• best to plan ahead and get DoL authorised
with contingencies or else may need re-
referral
@BJhealthlaw
• duty of care to patient
• discharge should be safe
• BUT – a patient cannot demand an
inpatient stay and so not a ‘best
interests’ decision – regardless of
capacity
@BJhealthlaw
• no ‘right’ to occupy a bed - possession
proceedings
• Criminal Justice and Immigration Act
2008 s119-120
@BJhealthlaw
• where P is on NHS premises; not for
medical treatment (includes when fit for
discharge after treatment); and causing a
‘nuisance / disturbance’
• criminal offence and power for police
office / authorised officer of the Trust to
remove them
@BJhealthlaw
• practicality / publicity
• and where to remove them to?? That is a BI
decision, and no power to convey to X
• often held up not only by dispute about
discharge package / placement with P /
family, but also dispute over funding
responsibility – what will be offered?
• Trust often left ‘holding the baby’
@BJhealthlaw
• clear communication and expectations
– patient medically fit for discharge has no
‘right to occupy’ an inpatient bed –
regardless of capacity
– reasonable expectations of making plans to
leave
– NB recent NHSE guidance
@BJhealthlaw
• collaborate between Trust and P / family,
but also local authority and / or CCG, and
eg Care Home / Nursing Home
• apply for DoLS authorisation in
anticipation
• apply to CoP if need be, and can seek
interim discharge
@BJhealthlaw
We have produced a toolkit on dealing with
delayed discharge – including capacity issues
as well as offering a training workshop to
help clients develop their own approach
@BJhealthlaw
Please get in touch if you have any questions
or wish to discuss the topics we’ve covered
further…
[email protected] | 0115 976 6263