Dominic Nasmyth-Miller

Operational Manager – MCA / DOLS

dominic.nasmyth-miller@suffolk.gov.uk

Mental Capacity and Deprivation of Liberty - Update

24 January 2017

Care Home Managers

Development Session

By the end of this session we will have;

• Explored the authority that is afforded to all staff by the

Mental Capacity Act 2015.

• Provided a brief revision of the protection that is afforded

to staff and residents by the Mental Capacity Act 2005.

• Explored recent judgements from the Court of Protection

in relation to mental capacity and deprivation of liberty.

Outcomes from this session…

• Discussed some examples from recent practice where

the DOLS have safeguarded local residents.

• Received an update on the future of the DOLS.

• Examined some of the available resources provided to

support all staff, residents and carers.

1. Everyone has the right to respect for his

private and family life, his home and his

correspondence

2. There shall be no interference by a public

authority with the exercise of this right

except such as in accordance with the law

and is necessary in a democratic society…

Things which form part of your private life include;

Personal autonomy – the right to make decisions about how you live your life

Article 8 European Convention on Human Rights - ECHR

Right to respect for Private and Family Life

The MCA 2005 provides the legal framework foracting and making decisions on behalf ofindividuals who lack the mental capacity to makespecific decisions for themselves.

Everyone working with and / or caring for an adult whomay lack capacity to make specific decisions mustcomply with this Act when making decisions or actingfor that person, when the person lacks the capacity tomake a particular decision for themselves.

The same rules that are required to be applied applywhether the decisions are life-changing or relate toeveryday matters. (MCA Code of Practice: Chapter 1).

The MCA introduces the 5 Key Principles.

MCA Code of Practice

The Mental Capacity Act is underpinned by the following five key principles:

A presumption of capacity - 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. (2.3)

The right for individuals to be supported to make their own decisions -people must be given all appropriate help before anyone concludes that they cannot make their own decisions. (2.6)

That individuals must retain the right to make what might be seen by others as eccentric or unwise decisions. (2.10)

Best interests – anything done for or on behalf of people without capacity must be in their best interests. (2.12)

Least restrictive intervention – anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms. (2.14)

The Five Key Principles

The Act is intended to assist and support people who may lack capacity

and to discourage anyone who is involved in caring for someone who

lacks capacity from being over restrictive or controlling.

... is to ensure that any decision made or action taken, on behalf of someone

who lacks the capacity to make the decision or act for themselves is made in

their best interests. (Page 15 COP)

Aims to balance an individual’s right to make their own decisions for

themselves with their right to be protected from harm, if they lack the capacity

to protect themselves.

Sets out a legal framework of how to act and make decisions on behalf of

people who lack capacity to make specific decisions for themselves.

Provides five Statutory Principles which all professionals working with

vulnerable people have a duty to have regard to.

Philosophy of the Act

“A person lacks capacity in relation to a matter if at the material time he is unable

to make a decision for himself in relation to the matter because of an impairment

of, or disturbance in the functioning of the mind or brain.” MCA 2 (1)

Mental capacity is the ability to make a decision (MCA Code of Practice 4.1)

This includes the ability to make a decision that effects daily life – such as when toget up, what to wear or whether to go to the doctor when feeling ill – as well asmore serious decisions.

It also refers to the person’s ability to make a decision that may have legalconsequences – for them or others, including having medical treatment, provisionof care, buying goods or making a will.

Definition of Incapacity

In determining a lack of mental capacity; the first part is the diagnostic test,

which requires proof that the person has an impairment of the mind or brain, or

some sort of disturbance that effects the way their mind or brain works.

NB: If a person does not have such an impairment or disturbance of the mind or

brain, they will not lack mental capacity under the Act.

The impairment could include;

• A stroke or brain injury

• A mental health problem

• Dementia

• A learning disability

• Confusion or unconsciousness because of illness or the treatment for it

• Substance misuse

The Diagnostic test – 1 (4.11)

In determining a lack of capacity; the second part is the functional test.

The Functional test (4.13 – 4.14)

If a person lacks capacity in any one of these areas and there is a disturbance

in the functioning of their mind or brain - then this represents a lack of capacity.

Remember: Every adult must be presumed to have the mental capacity to

consent or refuse care or treatment unless it is proved otherwise i.e. if there is

an impairment in the mind or brain or impairment in the functioning of their mind

or brain and they fail the functional test. This means that;

They are unable to understand the information provided

They are unable to retain the information provided about their treatment or care

They are unable to weigh up the information as part of the decision-making

process

They are able to communicate their decision

• Someone who is assessed as lacking capacity may

be denied their right to make a specific decision –

particularly if others think that the decision would not

be in their best interests or could cause harm.

• Also, if a person lacks capacity to make specific

decisions, that person might make decisions they do

not really understand. Again, this could cause harm

or put the person at risk.

When should mental capacity be assessed?

So it is important to carry out an assessment when a person’s capacity is in

doubt. It is also important that the person who does an assessment can

justify their conclusions.

4.34 MCA Code of Practice

Suffolk MCA

Toolkit

Decision-makers must consider;

• Whether the person may have capacity in the futureand identify when this is likely to be.

• The person’s past and present wishes and feelings (inparticular any written statement made when they hadcapacity).

• The beliefs and values that would be likely to influencetheir decisions if they had capacity.

• Any other factors that the person would be likely toconsider if they were able to do so.

Best interests decisions

The 4th statutory principles of the MCA confirms that any act done for or any

decision made on behalf of a person who lacks mental capacity must be

done, or made, in that person’s best interests.

Making best interests decisions

Chapter 5

MCA Code of Practice

Acts in Relation to Care and Treatment

Personal Care, healthcare and treatment

• Helping with washing and dressing

• Helping someone to move home

• Giving medication

• Providing professional medical, dental and similar treatment

• Carrying out diagnostic examinations and tests (to identify

an illness, condition or other problem)

• Providing nursing care (whether hospital or the community)

• Carrying out any other necessary medical procedures (for

example, taking a blood sample) or therapies (for example,

physiotherapy or chiropody)

• Providing care in an emergency

These actions only receive protection from liability if the person is reasonably believed

to lack the mental capacity to give permission for the action.

The action must also be in the person’s best interests & follow the Act’s

principles (see paragraph 6.26 onwards). MCA Code of Practice 6.6

Protection from liability

The MCA provides legal protection from liability for

carrying out certain actions in connection with the care

and treatment of people who lack capacity to consent,

provided that;

• You have observed the principles of the MCA

• You have carried out an assessment of capacity and

reasonably believe that the person lacks capacity in

relation to the matter in question

• You reasonably believe that the action you have

taken is in the best interests of the person

Guide for Staff in Health & Social Care - Page 27

Capacity and Consent - discharge the burden of proof.

Border v Lewisham and Greenwich NHS Trust [2015] EWCA Civ 8

Clinical negligence cases of interest - Anita Border and Dr Prenter (SHO)

A capacitous patient’s consent to medical treatment is still fundamental, even

when the treatment takes place in accident and emergency.

“The duty to obtain the patient’s consent to treatment is a fundamental tenet of

medical practice and is inherent in the case-law concerning the duty to take

responsible steps to warn a patient of the risk of treatment so that the patient can

make an informed decision about whether to consent to it.”

The appeal was allowed and the case was remitted to the trial judge to determine

the outstanding issue of causation and final determination as to damages.

Recent Judgements – Border v Lewisham and Greenwich

.

Break – 15 Minutes (max)

Article 5 European Convention on Human Rights – ECHR

Right to liberty and security of person

Article 5 – Right to liberty and security'

Everyone has the right to liberty and security of

person.

No one shall be deprived of his liberty save in

accordance with a procedure prescribed by law

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to

take proceedings by which the lawfulness of his detention shall be decided speedily

by a court and his release ordered if the detention is not lawful.

5. Everyone who has been the victim of arrest or detention in contravention of the

provisions of this article shall have an enforceable right to compensation

The Deprivation of Liberty Safeguards - DOLS

People are entitled to be cared for in the least restrictive

way possible and care planning should always consider

if there are other, less restrictive options available to

avoid unnecessary deprivation of liberty.

However, if all alternatives have been explored and

the hospital or care home believes that it is necessaryto deprive a person of their liberty to deliver the care or

treatment they need, then there is a standard process

they must follow to ensure that the deprivation of

liberty is lawful and that they are protected.

How has the Supreme Court become involved? (1)

Details which the Supreme Court decided were a deprivation of liberty

1. An adult (P) with a learning disability living in a bungalow with two other residents, with two

members of staff on duty during the day and one ‘waking’ member of staff overnight. He

requires prompting and help with all the activities of daily living, getting about, eating,

personal hygiene and continence. P requires further intervention including restraint to stop

him harming himself, but is not prescribed any tranquilising medication. He is unable to go

anywhere or do anything without one to one support; he gets 98 hours a week of personal

support to enable him to leave the home frequently for activities and socialising.

In 2013 the Supreme Court was asked to consider whether the care being provided

for three individuals, previously heard by the Court of Protection;

• P AND Cheshire West and Chester

• Q (or MEG) AND Surrey County Council

• P (or MIG) AND Surrey County Council

equated to a deprivation of their liberty

How has the Supreme Court become involved? (2)

2. A 17 year old (Q, or MEG) with mild learning disabilities living with three others in an

NHS residential home for learning disabled adolescents with complex needs. She has

occasional outbursts of aggression towards the other three residents and then requires

restraint. She is prescribed (and administered) tranquilising medication. She has one to one

and sometimes two to one support. Continuous supervision and control is exercised so as

to meet her care needs. She is accompanied by staff whenever she leaves. She attends a

further education unit daily during term time, and has a full social life. She shows no wish to

go out on her own, but she would be prevented from doing so in her best interests.

3. An 18 year old (P, or MIG) with a moderate to severe learning disability and problems

with her sight and hearing, who requires assistance crossing the road because she is

unaware of danger. She lives with a foster mother whom she regards as ‘mummy.’ Her

foster mother provides her with intensive support in most aspects of daily living. She is not

on any medication. She has never attempted to leave the home by herself and showed no

wish to do so, but if she did, her foster mother would restrain her in her best interests. She

attends a further education unit daily during term time and is taken on trips and holidays by

her foster mother.

Details which the Supreme Court decided were a deprivation of liberty

Supreme Court decision in Cheshire West – 19 March 2014

• Is the person subject to continuous supervision and control AND

• Is the person not free to leave.

Where the requirements of this “acid test” are met and the person is in a care

home or hospital a DOLS Referral MUST be made to the Supervisory Body

What is not relevant to whether there is a Deprivation of Liberty:

1) P is compliant or does not object, 2) The relative normality of the placement or

3) The reason or purpose behind a placement (i.e. that it is in P’s best interests)

Where the requirements of the “acid test” are met and the person

What could constitute a deprivation of liberty?

Following 19 March 2014;

is NOT in a care home or hospital authorisation MUST be

obtained from The Court of Protection.

Effects of the Cheshire West ruling;

• huge increase in people now falling into the scope of the “acid test” in care

homes, hospitals and hospices – requiring assessment and authorisation

• huge increase in people now falling into the scope of the “acid test” outside of

care homes, hospitals and hospices; supported living placements - sheltered

housing, residential schools, shared lives placements and their own home.

• huge increase in applications to court to authorise the deprivation of liberty –

where the person is residing outside of a care home or hospital

• those customers who now fall within the scope of the “acid test” are now

able to receive additional safeguards and protection; including the

appointment of a representative, review and the right to challenge.

Implications of the Cheshire West ruling by the Supreme Court

Recent Judgements – AG v BMBC 2016 (1)

Judgment

District Judge Bellamy held that covert medication is an interference with an individual’s

right to a private life (Article 8). It is also likely to contribute to someone being deprived of

their liberty under Article 5. The decision to covertly medicate should therefore always be

subject to close scrutiny, particularly if that medication will affect P’s behaviour, mental

health or act as a sedative.

It is essential that any covert medication is done in the least restrictive way possible and

that safeguards are in place, e.g. regular reviews of the decision to covertly medicate

and whether it remains the least restrictive option in that particular patient’s case.

Background

A 92 year old patient with dementia was resident in a care home. She was subject to a

year long DOLS standard authorisation with no conditions and no provision for review.

Her care plan included the administration of medication provided covertly.

Recent Judgements– AG v BMBC 2016 (2)

District Judge Bellamy noted that:

25. …I accept that treatment without consent (covert medication in this case) is an

interference with the right to respect for private life under Article 8 of the ECHR and such

treatment must be administered in accordance with a law that guarantees proper

safeguards against arbitrariness. Treatment without consent is also potentially a

restriction contributing to the objective factors creating a DOL within the meaning of

Article 5 of the Convention. Medication without consent and covert medication are

aspects of continuous supervision and control that are relevant to the existence of a DOL.

29. All parties agreed that covert medicines should only be used in exceptional

circumstances and when such a means of administration is judged to be necessary and

in accordance with the Act. The guidelines published by NICE (National Institution for

Healthcare and Excellence) provide that medication should not be administered covertly

until after a best interest meeting has been held, unless in urgent circumstances.

This case reinforces the NICE guidelines on covert medication. It emphasises

that, while covert medication may, on the face of it, appear not to be a

particularly restrictive option, it may still be a breach of P’s rights if the

appropriate safeguards are not adopted.

Suffolk’s DOLS Prioritisation Tool

Examples of how the DOLS have safeguarded

the customers they were designed to protect

Mrs C - Customer who did not havethe mental capacity to choose; wasassisted by the provision of analternative care home which wasmore appropriate for her needs andher wishes.

Mrs J – Customer was identifiedto have the mental capacity tochoose where she would like tolive and was supported to returnhome.

Mr W – Through the DOLSassessment process, specialistspeech and language support wasintroduced to assist the customer tocommunicate. This helped themmaximise their mental capacity andenabled them to make their owndecisions regarding their care andaccommodation needs.

Examples of how the DOLS have safeguarded

the customers they were designed to protect

Mrs T – The DOLS supported thecare provider to makeimprovements to their processes byidentifying gaps that existed withintheir recording and care plans.

Mrs J – The DOLS maintainedand supported the customer’sright to liberty and security inaccordance with Article 5 of theHuman Rights Act.

Mr H – Conditions wereintroduced to the DOLSauthorisation to reduce theimpact of the deprivation ofliberty on the Customer.

Mrs P – The DOLS processesprovided a voice to thecustomer who wished tostate their distress by beingplaced in a care home.

The future of the DOLS

• The Law Commission published Mental Capacity and Deprivation of Liberty: A

Consultation Paper (2015), CP No 222) on 07 July 2015 to consider how the law should

regulate deprivations of liberty involving people who lack capacity to consent to their care

and treatment arrangements. Problems discussed in the consultation paper are:

• The narrow focus on article 5 rights to liberty: the concept of deprivation of liberty is poorly

understood and the DOLS fail to take sufficient account of the person’s article 8 rights to family life.

• Disconnect with the Mental Capacity Act 2005: the DOLS are seen as incompatible with the style

and empowering ethos of the Mental Capacity Act, to which they are attached.

• Limited scope: the DOLS apply only to hospitals and care homes, and not to other care settings

such as supported living, shared lives accommodation etc.

• Length and complexity: the statutory provisions are seen as tortuous, complex, extensive and overly

bureaucratic.

The consultation proposes that the DOLS should be replaced by a new system called “protective

care”. It also proposes that there should be a new code of practice, and that the UK Governments

should review the MCA Code of Practice. Amendment also agreed to the Policing and Crime Bill which

would remove the statutory duty of coroners to hold an inquest where the deceased was subject to DOLS.

NB A Final Statement from the Law Commission is due to be issued in March 2017.

“because these placementswere benevolent it shouldnot blind us to theiressential character.”

Supreme Court 19 March 2014

....key aspects arising from recent case judgements

“the nursing home offeredbest quality of care but atwhat cost? …there was acomplete certainty ofphysical safety but at thecost of happiness to M”

Re: M October 2013

Local Authorities need to recognise whena deprivation of liberty will occur;

• Check whether less restrictive optionscan be pursued

• If necessary – ensure that the requiredauthority is in place.

AJ & A Local Authority 2015

The wider lessons for practitioners arisingfrom this litigation (2);

“Professionals need to be on their guardto look out for cases where vulnerablepeople are admitted to residential care forrespite when the underlying plan is for apermanent placement, without properconsideration as to their Article 5 Rights.”

AJ & A Local Authority 2015

It is not necessary for KK tounderstand “every details”just the salient factors.

CC and KK 2012

Guidance to support staff with these safeguards

National Guidance

• DOLS and You – BILD, Action on Elder Abuse & National Autistic Society (NAS)

• DOLS A Guide for Families and Carers – BILD, Action on Elder Abuse & NAS

• DOLS Factsheet – Alzheimer’s Society

• DOLS and You (Easy Read Guide) - The Department of Health

• DOLS A Guide for Families and Carers – The Department of Health

• Identifying A Deprivation of Liberty (Practical Guide) - The Law Society

• MCA in Practice – Department of Health and Steve Chamberlain

• Best Interests Decision Making – 39 Essex Chambers

• SCIE MCA Resource; www.scie.org.uk/mca

Local Guidance – Suffolk County Council

• Suffolk DOLS Prioritisation Tool

• Suffolk MCA Website; www.suffolk.gov.uk/mca

SCIE MCA Resource: www.scie.org.uk/mcaw

Suffolk MCA Website: www.suffolk.gov.uk/mca