The introduction of the Mental Capacity Act firmed up the
past and current situation for ‘decision making’ and ‘mental capacity’
The Mental Capacity Act (2005) is a law of statute and
was implemented in 2 stages
What New Things Did the Act Introduce?
New Lasting Powers of Attorney and deputies (October
2007
A new Court of Protection (October 2007
A new Office of the Public Guardian
A new criminal offence (April 2007)
A new Independent Mental Capacity Advocate service (April
2007)
A code of Practice (April 2007)
Other New Rules
The Act also brought in rules regarding:
Acts in connection with care and treatment
Advance decisions to refuse treatment
Research projects involving people who lack capacity
Care and Treatment
If there is no Lasting Power of Attorney or an appointed
Deputy:
The care giver or treatment provider must follow a ‘best
interests checklist’ before making a decision on what is in a person’s best
interests
Advance Decisions
What is an Advance Decision?
A decision made by someone who HAS mental capacity
It is a legal document about treatments a person want or
doesn’t want should they lose mental capacity. It should clearly state when treatments should either
stop or not be administered. These decisions must be respected by a doctor
Someone other than the person wanting to make an Advance
Decision can sign the document, Provided that the person wanting to make the decision
agrees and is a witness to the signature. A person signing an Advance Decision must understand what
it means
Research
People lacking mental capacity cannot make the same
judgemental decisions as those with mental capacity
The act brought in new rules about involving people
lacking mental capacity in research projects. Research Ethics Committees will make decisions as to
whether research involving people lacking mental capacity follow the new rules.
Summary
The Mental Capacity Act legislates for decision making in
care and health
In the absence of a Lasting Power of Attorney or court
appointed Deputy care providers must follow a strict checklist before making
any decisions concerning care – this has implications for ordinary day to day
decisions
The Act introduced Advance Decisions allowing the medical
profession to know what treatments a person wants should they ‘lack capacity’
at some time in the future
Research of any kind must have the consent of the person
and must stop as soon as the person does not want to continue
Deprivation of Liberty Safeguards
Introduction
The Deprivation of Liberty Safeguards were introduced to
prevent random decisions depriving vulnerable people of their liberty and for
their protection. The safeguards ensure that service users who need to be
deprived of their liberty have representatives and rights of appeal with
regular review and monitoring. The safeguards cover people in hospital and care homes
registered under the Care Standards Act 2000 – whether placed publicly or
privately.
The legislation is part of the Mental Capacity Act
2005 and amends the Act to meet the
‘Bournewood Gap’ http://www.equalityhumanrights.com/about-us/our-work/human-rights/human-rights-inquiries/our-human-rights-inquiry/case-studies/the-bournewood-case
The safeguards were introduced into Mental Capacity Act
2005 (MCA) through the Mental Health Act 2007
Mental Capacity Act 2005
Amended by the Mental Health Act 2007
Also amending the Mental Health Act 1983
DoLS Regulations came into force April 1st 2009
The safeguards arise from the “Bournewood” case – a ECtHR
case – Article 5
HL had been deprived of his liberty unlawfully because of
a lack of a legal procedure which offered sufficient safeguards against
arbitrary detention (5(1)) and speedy access to court (5 (4))
Bournewood Trust were found to have exercised complete
and effective control
The Safeguards
A legal procedure to enable lawful detention of a person
who is Over 18, and Lacking capacity to consent to the arrangements for their
care, and Receiving care where levels of restriction &
restraint are so high that they are being deprived of their liberty, and Within a hospital or care home, and Where detention is not already authorised under the
Mental Health Act
The Relationship of DoLS to MCA
Any action taken under the deprivation of liberty
safeguards must be in line with the principles of the Act:
Assume capacity unless it is established that a person
lacks capacity
A person is not be treated as unable to make a decision
unless all practicable steps to help him to do so have been taken without
success
A person is not to be treated as unable to make a
decision merely because he makes an unwise decision
Any action taken under the deprivation of liberty
safeguards must be in line with the principles of the Act:
An act done (or decision made) under the Act (or on
behalf of a person who lacks capacity) must be done (or made) in his best
interests
Before the act is done (or the decision is made) regard
must be had to whether the purpose for which it is needed can be as effectively
achieved in a way that is less restrictive of the person’s rights and freedom
of action
What Does This Mean?
Any care or treatment (given to a person without mental
capacity to give consent) that restricts liberty to the point of deprivation is
a breach of human rights, Unless a DoLS authorisation has been made
Assessments
The Assessment Process
Once it has been determined that a referral for
authorisation of Dols is needed there is a formal process to follow
Where the need is immediate an urgent authorisation can
be made
Urgent authorisations should normally only be used in
response to sudden unforeseen needs
The assessments have to ensure that all requirements are
met
The regulations stipulate who does these assessments
Six assessments:
Age
Mental health
Mental capacity
No refusals
Eligibility
Best interests
Key Terminology
Relevant Person (RP) The person being deprived of their liberty
Managing Authority (MA) Hospital or Care Home – the care provider Responsible for requesting an assessment of deprivation
of liberty
Supervisory Body (SB)The Primary Care Trust (PCT) or Local Authority (LA) responsible for
assessing the need for and authorising deprivation of liberty
Assessor - Carry out assessments as per the regulations
Representative (RPR) Provides independent support to the RP
Independent Mental Capacity Advocate (IMCA) Represents RP being referred for authorisation. Represents RP where a best interests assessor is
assessing possible unlawful deprivation of liberty. May stand in (no ‘representative’). May support the RP and/or their representative when
instructed by the SB or at the request of RP or their representative
Court of Protection
Where deprivation of liberty safeguards and procedures
will be challenged and where arguments about public protection and best
interests can be resolved
Action to be Taken by the Managing Authority (MA) The hospital or care home manager identifies the person
at risk of deprivation of liberty . They then request authorisation from the supervisory
body (SB)
An assessment is commissioned by the supervisory body. An IMCA is instructed for anyone without a representative
The Six Stage Assessment
Age assessment (is the person 18+)
Mental health assessment
Mental capacity assessment
Best interests assessment
Eligibility assessment
No Refusals assessment
The Assessment
If any of the assessments undertaken do not meet the
criteria for authorisation the request for authorisation is refused, all assessments support authorisation:
Best interests assessor recommends period for which
deprivation of liberty should be authorised and person to be appointed as
representative. Authorisation is granted and persons representative
appointed (RPR or IMCA
Authorisation implemented by managing authority (MA)
The Best Interest Assessor is an independent public body in their own right and
responsibility. Their assessment can only be overruled by the Court Of
Protection who Can also give a Standard Authorisation with conditions
attached
Authorisation Expiry - Authorisation expires and Managing authority (MA)
requests further authorisation
Same process starts again
Emergencies
The Managing Authority (MA) can issue an urgent
authorisation for seven days while simultaneously obtaining authorisation
(where it believes the need is immediate)
This procedure should normally only be used in response
to sudden unforeseen needs but also may be used in care planning (e.g. to avoid
delays in transfer for rehabilitation where delay would reduce the likely
benefit of rehabilitation)
The period of time must not exceed 7 days (only the
Supervisory Body can extend to 14 in exceptional circumstances)
Reviews and Appeals
The RP or the RPR/IMCA can request a review at any time
The MA can request a review if circumstances change
The person or their representative can also appeal to
Court of Protection (which has powers to terminate authorisation or vary
conditions)
Assessments in More Detail
Assessments – Mental Capacity
To establish whether the RP lacks capacity to consent to
the arrangements proposed for their care or treatment. This is assessed by a person eligible to act as a Mental
Health Assessor or Best Interests Assessor
Assessments – No Refusal
To establish whether an authorisation for DoL would
conflict with any other existing authority for decision making for the RP
This is undertaken by Best Interest Assessor
Assessments – Eligibility
To establish whether the RP is subject to the Mental
Health Act 1983 or whether they should be covered by the Mental Health Act 1983
instead of a DoL authorisation. This is undertaken by a Best Interests Assessor who is
also an Approved Mental Health Practitioner or a Section 12 Approved Mental
Health Assessor
Assessments – Mental Health
To establish if the RP is suffering from a mental
disorder within the meaning of the Mental Health Act 1983 (but excluding
additional criteria for learning difficulty)
This is undertaken by a Doctor who is Section 12 Approved
( Mental Health Act 1983 ) or a registered medical practitioner with 3 years
special experience in the diagnosis and treatment of mental disorders (and have
completed approved training)
Assessments – Best Interests
To firstly establish whether DoL is occurring (or is
going to occur) and if so whether it is In the RP’s best interests Necessary to prevent harm to themselves and that the DoL
is proportionate to the likelihood and seriousness of the harm
To evaluate the care plan
To consider less restrictive alternatives against
likelihood of harm
To seek the views of anyone involved or interested in the
persons welfare
To involve the RP and support them to take part in the
decision
To consider views of the mental health assessor
To decide if it is in the RP’s best interests to deprive
them of their liberty
To make a recommendation for care where the requirement
is not met
To determine how long the authorisation should last
To stipulate any necessary conditions associated with DoLs
To recommend someone to be appointed as the RP’s
representative
To produce a report detailing conclusions and why
(submitted to the SB)
To conduct review assessments
And Finally . . . . .Monitoring
The Care Quality Commission (CQC) will be monitoring
safeguards and practices the CQC will intervene where it believes standards are
failing and (where necessary) take appropriate action
Mental Health Act 2007 Deprivation of Liberty Safeguards (MCA
/ DoLS)
What is Depriving a Person’s Liberty?
Safeguards – Who They Apply To
The safeguards apply to anyone aged 18 and over who: Suffers from a mental disorder or disability of the mind
(e.g. dementia or a profound learning disability) Lacks the capacity to give informed consent to the
arrangements made for their care and / or treatment For whom deprivation of liberty (within the meaning of
Article 5 of the European Commission for Human Rights) is considered to be
necessary in their best interests to protect them from harm (after an
independent assessment)
The safeguards cover:
Patients in hospitals
People in care homes registered under the Care Standards
Act 2000 (whether placed under public or private arrangements)
Background
The White Paper Our Health, Our Care, Our Say (Department
of Health)
“people with ongoing care needs, whether their needs
arise in older age, or through illness or disability, should be cared for in
ways that promote their independence, well-being and choice”
Human Rights Act 1998
The Convention guarantees the following rights and
freedoms:
Article 2: The right to life
Article 3: The Right to Freedom from Torture and Inhuman
or Degrading Treatment or Punishment
Article 4: The Right to Freedom from Slavery, Servitude
and Forced or Compulsory Labour
Article 5: The Right to Liberty and Security of Person.
Article 6: The right to a fair and public trial within a
reasonable time.
Article 7: The Right to Freedom from Retrospective
Criminal Law and no Punishment without Law
Article 8: The right to respect for private and family
life, home and correspondence
Article 9: The Right to Freedom of thought, conscience
and religion
Article 10: The Right to Freedom of Expression
Article 11: The Right to Freedom of assembly and
association
Article 12: The Right to marry and found a family
Article 14: The prohibition of discrimination in the
enjoyment of convention rights
What Are The Safeguards?
A legal procedure to enable lawful detention of a person
who is:
Over 18, and Lacking capacity to consent to the arrangements for their
care, and Receiving care where levels of restriction and restraint
are so high that they are being deprived of their liberty, and They are receiving care/treatment in a hospital or care
home, and Where detention is not already authorised under the
Mental health Act.
Policies and Training
Staff should receive training on the Mental Capacity Act
and Dols
Managers should ensure that policies and practice are in
line with the Act and Dols
You need to understand:
Capacity assessment
How to support decision making
How to determine ‘best interests’ decisions
The definition of restraint and least restrictive option
Dols – Implications for Institutions
Approximately 21,000 vulnerable adults in care homes and
hospitals may be in danger of having their liberty deprived in a range of ways
(Department of Health)
Care homes need to review care practice for specific
service users in order to provide it in a less restrictive way
MCA Code of Practice (Supplement 2.5)
The ECtHR (European court of human rights) and UK courts
have determined a number of cases about deprivation of liberty
Their judgments indicate that certain factors can be
relevant to identifying whether steps taken:
Involve more than restraint, and Amount to a deprivation of liberty
Factors determined (so far):
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
An institutional decision 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.
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