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Legal Issues. Aims Case MCA ◦ Decision Making ◦ Best interests ◦ Other MHA DoLs.

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Presentation on theme: "Legal Issues. Aims Case MCA ◦ Decision Making ◦ Best interests ◦ Other MHA DoLs."— Presentation transcript:

1 Legal Issues

2 Aims Case MCA ◦ Decision Making ◦ Best interests ◦ Other MHA DoLs

3 Case Sarah 40 year lady Lived carer / partner Moderate LD & epilepsy Complex mental health issues ◦ Psychosis ◦ Vulnerability

4 Case Develops gangrenous R foot Admitted DGH Fluctuating consciousness Partner asked to consent to amputation

5 Discuss ? Views Who decides re capacity? How should capacity be determined? How are best interests decided? Where could they seek advice?

6 MENTAL CAPACITY ACT 2005 Legal concepts

7 Statutory Principles Presumed capacity. Not be treated as incapacitous unless all practicable steps taken to improve decision making. Right to make unwise decision. Incapacity > treat best interests. Least restrictive - persons rights & freedom of action.

8 Aspects to consider Timing /urgency of decision Communication Culture Advocate Carers

9 2 Stage Test Impairment of mind / brain (temporary / permanent). Impairment prevents a particular decision at the time it needs to be made.

10 Ability to make decision General understanding ◦ relevant information of decision ◦ why need to make it. ◦ Consequences of proposed action & of not doing it. Understand, retain, use & weigh. Communicate.

11 Capacity – particular decision Understand (relevant information) Retain, Use & weigh. Communicate.

12 Incapacitous “For the purposes of this 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 impairment in the functioning of, the mind or brain.” Prove - balance of probability - lacks capacity. Document process.

13 Who decides Final decision made by person intending to carry out action on behalf of someone - decision maker. Complex decision ? Need further assessment involving another doctor/ expert. Seek medical / legal advice decisions with significant impact or likely challenges.

14 Practical steps Understand nature & effect of decision Other - staff / records Family - not their view but what they think person would want confidentiality Explain information at right level Check understanding few minutes - rough explanation

15 Professional / expert advice Complicated / serious consequences. Person challenges that decision. Family disagree. Conflict of interest between pt & assessor. Someone might challenge. Someone repeatedly makes decisions puts them at risk.

16 Challenge finding Ask assessor reasons & objective evidence Assessor must show followed principles of Mental Capacity Act Second opinion If disagreement cant be resolved > Court of Protection - rule

17 Best interests ‘ An act done, or decision made, under this act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.’ Mental Capacity Act

18 Best Interests Checklist Person participate as much as possible. Identify all relevant circumstances Persons views - ◦ Past / present ◦ Beliefs & values ◦ Other factors they would have considered if deciding for self Avoid discrimination -age, appearance condition behaviour

19 Best Interests Checklist… ?regain capacity Consult others - Confidentiality ◦ Carers ◦ Relatives ◦ Attorneys ◦ Court appointed deputy IMCA Least restrictive option Weigh all

20 Life sustaining decisions Not be motivated by desire to bring about death Not make assumptions on QoL Reasonable steps to prolong life Not obliged to if not in best interest of patient Court of protection if dispute

21 Exceptions Advance decision Research not covered here

22 Capacity Decision maker decides best interests Lasting Power of attorney / court appointed deputy decide their scope of authority / Make record of process ◦ How decision reached ◦ Who consulted ◦ Particular factors ◦ Reasons for reaching decision

23 Disputes Advocate 2nd opinion Best interest case conference Mediation Court of protection


25 Advocacy No close friends/ family Family disagree Doctors / family disagree Conflict of interest Use of restraint or restrictions Protection of vulnerable adult

26 Legal advice Difficult / potentially problematic cases Seek advice from ◦ MPS / MDU ◦ Trust legal advisors

27 MENTAL HEALTH ACT Legal Aspects

28 MHA Use as for general psychiatry e.g. depressive disorder etc LD ◦ Arrested / incomplete development of mind ◦ Significant impairment of intelligence + ◦ Significant social functioning Abnormally aggressive Behaviour or Seriously irresponsible conduct

29 LD - Act State of arrested / incomplete development of mind which includes significant impairment of intelligence & social functioning Present prior to adulthood Not from accident / injury / illness after normal development.

30 Significant impairment of IQ ◦ on basis of reliable & careful assessment ◦ Not defined by arbitrary cut off & Significant social impairment

31 Abnormally aggressive & irresponsible behaviour Application for detention for treatment / reception into guardianship on basis of LD without other mental disorder only be made associated with 1 or both of.. Abnormally aggressive behaviour Seriously irresponsible conduct Not defined Depend on nature of B & circumstances

32 Ax conduct abnormally aggressive Not defined Depend on nature of B & circumstances Risks safety for individual & others How persistent & severe it been ?trigger ?out of proportion Whether & to what degree > harm / distress to others / damage to property ? Likely to reoccur ? How common to popn generally

33 Ax seriously irresponsible conduct ? B suggest disregard /inadequate regard for its serious / dangerous consequences ? How recent ? Persistence ? Harm to others If not recent how likely to reoccur


35 Background Bournewood case ◦ HL ◦ Autistic & profound LD ◦ Unable to consent to admission ◦ Admitted treated ◦ Restricted contact with carers ◦ Kept sedated ◦ Continuous supervision ◦ Would be assessed for detention if tried to leave

36 ECHR HL deprived of liberty Article 5 (1) of European convention of human rights Detention arbitrary not in accordance with law No procedure for him to challenge detention. Non compliant with Article 5(4) of

37 DoLS Safeguard for “Bournewood gap” Difference between restriction upon liberty or deprivation of liberty one of degree or intensity


39 Factors to consider re restraint / deprivation Restraint including sedation to admit person who is resisting admission Complete effective control care & movement significant periods Decided not to release into care of others or permitted to live elsewhere Refused request by carers for person to be discharged Unable to maintain social contacts Loses autonomy as under continuous supervision

40 Authorizing Court of protection DoLS Necessary in order to give life - sustaining treatment while decision sought from court

41 Supervisory body PCT or Local authority authorize DoL adult in hospital / care home respectively Needs ◦ Representative ◦ Regular review Can request review any time

42 Lack capacity Best interests Less restrictive alternative

43 6 requirements Age - >18 Mental health must be suffering with mental disorder or LD ( section 12 approved or special experience in diagnosis & assessment of mental disorder Mental capacity – anyone mental health assessor / best interests assessor Best interest. Best interest checklist consult others – IMCA if no one

44 Best interest. Best interest checklist ◦ consult others – IMCA if no one ◦ Amhp /SW/ 1 st level nurse/ OT/ psychologist – trainig Eligibility – ineligible if under MHA No refusals

45 References Mental Health Act Manual. Richard Jones eleventh edition Assessment of Mental capacity a practical guide for doctors & lawyers 3 rd edition. BMA & law society Code of Practice – Mental Capacity Act 2005. TSO

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