Presentation on theme: "Good Medical Practice in Action"— Presentation transcript:
1 MCA/DOLS Update Mental Capacity Act & Deprivation of Liberty Safeguards
2 Good Medical Practice in Action Everyone who works with people who lack capacity is legally required to work within the Mental Capacity Act and have regard to the Code of Practice.GROUP EXERCISEGood Medical Practice in Action
3 11 Key MCA messages 1. Always start from an assumption of capacity 2. Capacity is time specific and decision specific3. People with mental health problems, dementia, learning disabilities often maintain the capacity to make some decisions for themselves4. We must encourage, assist and support people to make their own decisions if possible.5. If it is likely that the person may regain capacity we must consider whether the decision can wait.6. Can the person understand, retain & use and weigh up the relevant information and communicate their decision? If so, they have capacity.
4 7. People have the right to make unwise decisions 8. It is not just mental illness & learning disability that impair capacity. Other examples include:brain injury, physical illness, substance abuse, shock, side effects of medication.If the person meets the criteria we may be breaking the law if we don’t involve an IMCA.10. If the person is found to lack capacity we must consult other people e.g. family, friends, carers.11. Refer to the Mental Capacity Act Code of Practice for any questions you have. It’s a great book!
5 The Human Rights ActArticle 5: No one shall be deprived of his liberty (other than) in accordance with a procedure prescribed by law”…”everyone who is deprived of his liberty…shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by the court and his release ordered if the detention is not lawful”Article 8: Everyone has the right to respect for his private and family life, his home and his correspondence. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.
7 “The Bournewood Case” Harry admitted to Bournewood Hospital July 1997 HL v UK v ECHR (2004) …Harry admitted to BournewoodHospital July 1997Discharged back to his carers inDecember 1997 following Courtof Appeal rulingThe Enderbys took the case to The European Court of Human Rights to stop arbitrary detentions of people like Harry who lacked capacity to consentThe ECHR ruled that Harry’s Article 5 rights had been violated
9 HCHR - deprivation of liberty has 3 elements…. 1. The objective element of a person’s confinement in a certain limited place for a not negligible amount of time2. an additional subjective element that they have not validly consented to the confinement in question3. the confinement must be imputable to the state
10 What the DOLS Code of practice says… The European Court of Human Rights (ECtHR) and UK courts have indicated that the following factors can be relevant to identify deprivation of liberty (not exclusive, may change with case law):Restraint is used, including sedation, to admit a person to an institution where that person is resisting admissionStaff exercise complete and effective control over the care and movement of a person for a significant periodStaff exercise control over assessments, treatment, contacts and residence
11 What the DOLS Code of practice says…continued A decision has been taken by the institution 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 appropriateA request by carers for a person to be discharged to their care is refusedThe person is unable to maintain social contacts because of restrictions placed on their access to other peopleThe person loses autonomy because they are under continuous supervision and control
12 The Neary Case (London Borough of Hillingdon v Neary (2011)EWHC 1377 COP) Steven Neary, aged 21, was removed from the care of his father by Hillingdon Council in December 2009He remained in a council run care home (despite his & his father’s objections) until December 2010 when he was returned home by the courtHe had been subject to a succession of DOLS authorisations since April The Court found that these authorisations had been unlawful, and that he had been unlawfully deprived of his liberty throughout the whole 12 month period
13 Lessons from case law Whenever anyone make a best interests decision they must:follow, and evidence that they have followed, the full best interests assessment process set out in the MCA Section 4 (the best interests checklist)have regard to a person’s Article 5 and Article 8 rightsconsult as far as possible with the person themselvesconsult with close family and friends (unless there are very strong grounds to exclude them)If a decision has to be made on behalf of a personwho lacks capacity it should be made collaborativelywherever possible.
14 Restraint or deprivation? Examples of restraintMoving towardsPossible deprivationForce or restraint being used to admit a personProportionate restraint being used to administer a necessary blood testNeeding to distract/persuade someone away from a door when they are sometimes asking to leavePreventing a person from going out with relativesAn individual being prevented from leaving a unit unescortedHaving to frequently prevent someone from leaving when they object to being thereKeeping someone under constant supervisionProportionate restraint being used to return a person who has left a unit & is walking confused & unsafe in a busy roadOnly allowing visiting at certain timesA person being unable to maintain social contactsGiving a person covert medication in their own best interests when they lack capacity & are refusing to take tabletsStaff exercising complete controlN.B. ‘Proportionate restraint’ is the least amount of force for the shortest possible time
15 MCA Principle 5 “ Before any act is done or decision made regard must be had to whether it can beachieved in a way that is less restrictive of aperson’s rights and freedom of action”
18 A) Hospital or care home managers identify those at risk of deprivation of liberty & request authorisation from supervisory bodyIn an emergency hospital or care home can issue an urgent authorisation for 7 days while obtaining standard authorisationB) Assessment commissioned by supervisory body. IMCA appointed for unbefriendedAge assessmentNo Refusals assessmentMental health assessmentMental capacity assessmentEligibility assessmentBest interest assessmentAuthorisation expires and Managing authority requests further authorisationAll assessments support authorisationAny assessment says noE) Best interest assessor recommends person to be appointed as representativeC) Request for authorisation declinedD) Best interest assessor recommends periodPerson or their representative appeals to Court of Protection which has powers to terminate authorisation or vary conditionsF) Authorisation is granted and persons representative appointedBox C needs some discussion. What should happen after the request is declined?Possibilities include: step down restrictions so there is no deprivation of liberty; use MH Act; apply to Court of Protection for s16 order.G) Authorisation implemented by managing authorityManaging authority requests review because circumstances changePerson or their representative requests reviewH) Review1818
19 CQC Responsibilities CQC will look at documents and records of applications and authorisations and may wantto see:Completed formsDetails of any conditions imposedAny requests for reviewEvidence of regular monitoringPlans of care, treatment and supportOther relevant documents
20 Managing Authority responsibilities Apply for an authorisation if you feel someone in your care home may be deprived of their liberty.Inform the person, and their relatives, of application and authorisation if one is given.Inform CQC when making an application and inform them of the outcome of the DoLS assessment (Outcome 20, Regulation 18).Make relevant documents available to DoLS assessorsInform the person registered under the Care Homes Act.
21 Managing Authority responsibilities contd… Check that the RPR is keeping regular contact with the person.Act on any conditions set as part of the authorisation.Inform the supervisory body ifcircumstances changeconditions can not be metrequirements for DOLS may no longer be metRPR is not maintaining regular contact with RPInform Coroner if a person dies while subject to a DoLS Authorisation
22 Hertfordshire Supervisory Body SFAR 016 Farnham House Six Hills Way Stevenage SG1 2FQphone:fax:(NB: We ask that you always follow up a fax with atelephone call to check we have received the fax)