1. The 5 Principles of the MCA The Safeguards of the Act 1. Start by assuming the person has capacity to make the decision for themselves Every adult over the age of 16 has the right to make their own decisions If we claim someone lacks capacity we must provide proof – the two stage assessment of capacity 2. Do everything practical to help a person make a decision for themselves Using different forms of communication / providing information in an accessible format Having a structured programme to improve the person’s capacity (i.e. through education) We should ensure people can make as many of the decisions in their life as possible 3. A person shouldn’t be treated as unable to make a decision because the decision they make appears unwise to others We all have unique values, wishes and beliefs We shouldn’t confuse an assessment of the person’s capacity with an assessment of what we believe is in their best interests

2. The 5 Principles of the MCA The framework for making decisions on behalf of someone who lacks capacity 4. Any decision made on behalf of a person who lacks capacity must be in their best interests Follow the best interests checklist The exception to the best interests principle is if the person has made a valid advance decision to refuse treatment, or is being involved in research, as other safeguards apply in these circumstances 5. Before the decision is made consideration should be given to whether there is a lesser restrictive course of action Best interests decision making is restrictive as the person is no longer in control over the decision Can we avoid making a decision on the person’s behalf? Can we delay the decision so that the person can make it for themselves when they regain capacity? Can we act in accordance with their views? How can we facilitate the person having the most amount of personal freedom? Promote the person’s rights

3. The consent / decision making process Autonomous decision making Substitute decision making Start by assuming Person has capacity to make the decision Duty to give information in the Person’s preferred method of communication Person has capacity to make the specific decision at the time it needs to be made Person lacks capacity to make the specific decision at the time it needs to be made Need to document a two stage capacity assessment Decision made by appropriately qualified decision maker – not Next of Kin Need to gain Person’s consent to provide care, support and treatment Decision regarding care, support and treatment made in Person’s best interests (the exception being where valid Advance Decisions or a relevant Lasting Power of Attorney (LPA) apply) Person has the right to make their own decisions, even if they appear unwise They could consider planning ahead for the future by writing an Advance Decision or by registering a Lasting Power of Attorney (LPA) Duty to meaningfully involve the Person in the decision making process Duty to consult family and friends Consider holding a best interests meeting Record and document decision making process and outcome We should be trying to support the people we work with to make as many decisions for themselves as possible Em power men t Enabling choice Empowering autonomy, independence and control

4. The assessment of capacity The two stage test 1. The Diagnostic Test Is there an impairment or a disturbance in the functioning in the mind or the brain, that is affecting the person’s ability to make a decision For example: mental illness; dementia; learning disability; physical or medical conditions that cause confusion, drowsiness or loss of consciousness; delirium; concussion following a head injury etc. 2. The Functional Test A person is lacks capacity to make a decision if they cannot do of any one or more of the following: 1.Understand the information 2.Retain the information 3.Use and weigh up the information as part of the decision making process 4.Communicate their decision Capacity is always time and decision specific Stages 1 and 2 are part of the same assessment, if a person fails Stage 2, the Functional Test of capacity - this must be because of the impairment or disturbance in the functioning of the mind or brain in Stage 1, the Diagnostic Test.

5. Staying in control (for adults 18 years old and over) Advance Decisions to refuse treatment Lasting Power of Attorney LPA (Property and Affairs) Lasting Power of Attorney LPA (Personal Welfare) Enables someone who has capacity, to refuse a specific medical treatment for a time in the future when they may lack capacity - if it is valid and applicable it has the same effect as a decision made by a person who has capacity Registered with Office of the Public Guardian (OPG) Can manage any aspect of the person’s finances and property Can make decisions about the person’s accommodation, care and treatment Can be a family member, friend or someone the person trusts, such as a solicitor (who may charge for the service) There are special rules for Advance Decisions to refuse life sustaining treatment Nominated by the person themselves when they have capacity to decide to have an attorney Cannot demand specific treatment, cannot refuse basic shelter, food and warmth Can be used when the person still has capacity or when they lose capacity (this is up to the person registering the LPA) Can only be used when the person lacks capacity to decide, if they have capacity they must decide for themselves You can contact the OPG to find out if there are any registered Powers of Attorney: https://www.gov.uk/find -someones-attorney-or- deputy You can contact the OPG if you have concerns about an attorney or deputy (as well as submitting a multi agency safeguarding alert): https://www.gov.uk/rep ort-concern-about- attorney-deputy

6. Balance sheet approach to best interests Option: Positives / benefitsNegatives / risks A ‘Balance Sheet’ approach is a way of weighing up the different factors that are relevant in a particular decision. The approach is to complete a balance sheet of the positives and negatives for each of the options that are available to a person. A Balance Sheet is a way of making decisions that are open and transparent, by demonstrating how a decision was made and the factors that were considered. Look for any ‘magnetic factor’ that is capable of determining the outcome of a balancing process. A magnetic factor does not only mean that that element is given distinguished weight in the balance sheet but also ‘pulls’ the evaluation of all elements in a specific direction and thus determines the outcome of the decision. In a recent case, the Court was asked to decide about the withdrawal of the artificial nutrition of a minimally conscious patient, the sanctity of life seems to have acquired such ‘magnetic importance’. The importance of preserving life was deemed to be the decisive factor which could not be outweighed by other considerations on the opposite side of the ‘balance sheet’ (e.g. past preferences of the patient, the wishes and feelings of relatives, etc.).

7. The Deprivation of Liberty Safeguards (DoLS) Deprivation of liberty Right to Liberty protected by Article 5 of the Human Rights Act 1998 Deprivation of liberty unlawful unless authorised by a process in law Deprivation of liberty will only be authorised if the person lacks capacity to consent to those arrangements, the deprivation is found to be in their best interests and it is a proportionate response to the likelihood of harm and the seriousness of that harm The DoLS can assess and authorise a deprivation of liberty in Hospitals and care homes registered under the Care Standards Act 2000, only applies to adults over 18 years old 6 assessments carried out by Best Interests Assessor and Mental Health Section 12 Doctor Standard Authorisation can be granted for up to, but no longer than 12 months Relevant Person’s Representative (RPR) and / or Independent Mental Capacity Advocate (IMCA) involved Supreme Court ruling outlined an ‘Acid Test’ by which we assess whether a person is being deprived of their liberty Lady Hale described the “…right to physical liberty. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person.”

8. Supreme Court ruling sought to clarify the definition of a deprivation of liberty. A person is held to be being deprived of their liberty if they are: Not free to leave It’s is not relevant to whether the person is being deprived of their liberty if the person has never tried or been prevented from leaving, what is relevant is whether the person would be prevented from leaving the institution if they did try to leave Under continuous supervision and control Continuous supervision and control has not been defined, this does not necessarily mean that the person is supervised at all times of the day, significant periodic observation could qualify as continuous supervision and control, additionally this could be through the use of assistive technology, i.e. pressure pads, doors alarms etc. The ‘Acid Test’ Helpful briefing paper clarifying the meaning of ‘not free to leave’ and ‘continuous supervision and control’: http://www.mentalcapacitylawandpolicy.org.uk/wp-content/uploads/2014/04/CPA-briefing-DoLS-examples-May14.pdf