Presentation on theme: "Safeguarding Networking Event Back to Basics: Mental Capacity Tuesday 25 February 2014."— Presentation transcript:
Safeguarding Networking Event Back to Basics: Mental Capacity Tuesday 25 February 2014
Back to Basics: Mental Capacity Act 2005 Awareness of Human Rights, Safeguarding Adults and the use of the Mental Capacity Act 2005 Maria O’Connell – Mental Capacity Act Professional Lead
Human Rights Act 1998 The HRA 1998 applies to all Public Authorities Article 2- The Right to Life Article 3-The right to freedom from torture and degrading treatment Article 5- The Right to Liberty Article 8- The right to respect for private and family life & correspondence.
Article 5 ECHR No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law EG Relating to a criminal offence. Mental Health Act Immigration Laws Deprivation of Liberty Safeguards
Autonomy, Freedom, Independence & Unwise Decisions Human nature and behaviour is not exclusively rational. We have freedom to make decisions and choices which may be for the better or for the worse. We enjoy free will and as result have personal responsibility for those decisions. So why is it that these unwise decisions are not as readily acceptable for individuals who are deemed as “vulnerable” by virtue or nature of their particular disability and/ or lack of capacity?
Background to MCA The Common Law lacked consistency. People’s Autonomy not always respected. No Legal framework/ authority for people who act on behalf of a person lacking capacity.
Mental Capacity Act 2005 The MCA 2005 affects people who are over 16 years old in England and Wales. The Act sets out clear safeguards to empower and protect a person who is assessed as not having mental capacity. The Act makes it clear that any assessment of a person’s capacity must be decision specific. Assessment of capacity must be about a particular decision that has to be made at a particular time and is not about a range of decisions. If someone cannot make complex decisions this does not mean they cannot make simple decisions You cannot decide that someone cannot make a decision upon his/her age, appearance, condition, or behaviour.
MCA 2005- 5 KEY PRINCIPLES Person is assumed to have capacity. A lack of capacity has to be clearly determined Nobody should be treated as unable to make a decision unless all reasonable steps have been taken to assist them and shown not to work maximising capacity. Nobody should be stopped from making a decision just because others think it may be unwise / eccentric. Anything done for or on behalf of a person must be in their best interests. A decision is arrived at by working through a checklist. When anything is done or decided for a person who lacks capacity it must take in to account their basic rights and freedoms. Any decision/action should show that the least restrictive option / intervention is achieved.
What does the act do? It sets out a single test of capacity assessment which is decision specific covering emergency decisions, day to day decisions, and complex decisions. Introduced a new criminal offence “Ill treatment and willful neglect”. It allows for advanced decisions to refuse treatment. Established the role of the IMCA service. New Court of Protection. Established Lasting Power of Attorney and Court appointed Deputy. Office of Public Guardian.
What does the Act mean? It puts in place a Code of Practice to give guidance. The code of practice must be followed by those working in a Professional capacity e.g. Social Workers, Dr’s Nurses, and Police Officers. The Act offers appropriate protection for carer’s, as well as health and social care professionals, who act in the reasonable belief that they are doing so in the person’s best interest. They need to demonstrate that the principles of the MCA were followed.
MCA 2005 Provides a statutory framework to empower and protect Adults and Young People who are not able to make decisions for themselves. Codifies Common Law. It makes it clear who can take decisions, in what circumstances and how this should be done. It enables individuals to plan for the future for a time when they may lose capacity in relation to treatment. Been in force since October 2007.
MCA 2005 Code of Practice If you provide care and treatment or support to a person who lacks capacity you are legally obliged “Have regard to the code.” The Code has statutory force but is guidance not instruction. Must be aware of the code when working with a person lacking capacity you cannot follow it by accident (by not knowing what is says). Failure to comply with the code would be referred to in any criminal / civil proceedings.
What is meant by Mental Capacity? Capacity means the ability a person has to make specific decisions or take actions that influence their life this can be from very simple ( what to wear) to complex decisions (consent to medical treatment where to reside) Section 2 (1) of MCA states that “ A person lacks capacity in relation to a matter, if at the material time, he is unable to make a decision in relation to the matter because of an impairment of or a disturbance in the functioning of the mind or brain”
Impairment or disturbance could be caused by Stroke or Brain Injury Mental Health Problems Dementia Learning Disability Confusion, drowsiness unconsciousness because of physical illness or treatment Shock, Pain Substance misuse (including Alcohol) Anything else which may be causing an impairment or disturbance!
Assessing Capacity There is now a 2 stage test you should follow Stage 1 Is there an impairment of or disturbance in the functioning of the person’s or brain? It does not have to be permanent it can be temporary. Stage 2 Does the impairment or disturbance cause the person to be unable to make a specific decision at the time it needs to be made? Being unable to make a decision is defined in the Act by considering these four factors Understanding the information Retaining the information Weighing the information Communicating the decision. – by verbal and/or non- verbal means. A nod / blink/ squeeze of a hand is communication! If the disturbance in the person’s mind or brain is causing them not to do any of the four functions then they do not have the ability to make the decision in question.
Assessing Capacity You cannot decide that a person lacks capacity based on their age, appearance, condition or behaviour alone. Assess never assume. Assessments are made on the balance of probabilities. Is it more likely than not that they lack capacity to make that decision. Record your rationale/ reason. You as the assessor have “burden of proof”.
How is Capacity Assessed in your work place? Who carries out an assessment? What kind of decisions are people assessed for? Who makes the decision?
Decision Maker The person who assesses for capacity is usually the person who requires the decision to be made. Dr’s Nurses, Social Workers, care home staff, domiciliary care workers, and informal cares, LPA’s Deputies, Police officers, Judges. More complex the decision there may be a need for an expert / specialist opinion to inform or may require a “Best Interest meeting” Decisions could include residency, medical treatment, managing finances, what to eat / wear etc. Carer’s both qualified and informal may need to assess capacity- but not expected to be an expert. Need to demonstrate they have a reasonable belief that they lack capacity.
Best Interest Checklist There is a checklist that you must follow within the Act summarised as follows Equal consideration and non-discrimination- Make no assumptions based on age, appearance ability etc. All relevant circumstances- The information that the person making the decision is aware of and would be reasonable to consider as relevant. E.g. the best clinical / medical option given the persons condition prognosis. Regaining Capacity- Permitting and encouraging participation The person’s wishes, feelings, beliefs, and values The views of other people (professionals, family, carer’s, LPA’s Deputy appointed by the court.
New Criminal Offence (Section 44) Willful neglect or ill treatment of a person who lacks capacity. Punishable by imprisonment of up to 5 years and / or an unlimited fine. Consider the impact and recognise accountability for your decision making and actions. Police are already considering cases.
Protection from Liability Have you applied the code? You will be protected from liability from either civil or criminal penalties provided; OBSERVED THE 5 PRINCIPLES CARRIED OUT AN ASSESSMENT REASONABLY BELIEVED THE PERSON LACKED CAPACITY REASONABLY BELIEVE THE ACTION IS IN THE PERSON’S BEST INTERESTS
Rights v Risks Balancing Rights, Needs and Risks will always be a challenging process for workers. Positive Risk Assessment and Risk management is essential in safeguarding Adults in both promoting and protecting their Human Rights. Get to know the MCA Code!
Case Study: Annie Mandi Gay and Darren Richardson
Annie Diagnosis of Alzheimer’s for five years Now in advanced stage Lodger for last ten years Lodger is main carer (reluctant) and there is no other support in place Crossing boundaries as friend Lodger wishes to leave the property and move into his own place.
Alzheimer’s Progressive illness Most common type of dementia Affects around 465,000 in UK Loss of memory Mood changes Problems with communication and reasoning (Alzheimer’s Society, 2012)
Referral Referral received through GP GP felt Annie needed residential care GP stated that he believed Annie would decline support and if she did he intended to have her removed by initiating MHA (1983) Agreed to visit Annie and discuss concerns raised with her and the lodger.
Issues Raised During Visit Visit to assess under s.47 of community care act (1990) and gain more information Annie was 92 years old and had never married Worked all her life on public transport and spent many years as a conductor before going into the offices and management
Issues Raised During Visit Very independent woman and had authority in her job, reflected in her home life Popular woman in the local area in younger days, though now isolated Lodger reports a steady decline in cognitive function over recent years No family members
Risks Unable to show awareness of condition Doubly incontinent Needs all care anticipating Nutrition needs not been met as lodger out much of the time Drinks whiskey daily-facilitated unwittingly by the lodger Chain smoker and does not dispose of cigarettes properly
Risks Lives on 8 th floor of a tower block Poor mobility and unable to walk safely Disoriented to time and place Risk of sores and had sore on buttock Isolation and dignity issues No support in place Unable to recognise importance of personal care and hygiene needs compounding skin tissue risks
Risks Where there is a difference of gender, race or class between social worker and service user, there seems to be a tendency to focus unduly on deficit and/or risk rather than on strengths and seeking to establish how peoples’ control over aspects of their own lives can be increased. (Milner and O’ Byrne, 2002, p36)
Annie’s behaviour posed significant risks to herself and others
Easy solution? GP’s viewpoint was of diagnosis and treatment Believed residential care to be solution to problem as a “quick fix” Could be seen as a prescriptive viewpoint (one size fits all)
Easy solution? Problem focused Residential care would be solution to Annie’s circumstances Accurate diagnosis allows prognosis Can signal a cause to illness and look towards treatments Not seen to recognise individuality
Avoiding ageist practice Rather than the specific medical or social issues that give rise to need being perceived as “the problem” it is old age itself which is seen as needing to be addressed and, as a consequence, the link in peoples’ minds between old age and decline is strengthened. (Thompson, 2005, p20)
Annie’s Viewpoint Annie had lived in property for many years Oriented to environment Wished to remain at home (stated that she would never leave) Was aware that lodger lived with her and felt that he was trying to have her removed However, unable to ascertain her own needs
Lodger’s Viewpoint No longer wished to be involved with care Wished to leave the property as soon as possible Role as friend/lodger had become blurred with that of carer Respect for Annie had made him feel duty to continue Carers assessment offered under Carers Act 1995/2004, but declined (tokenistic gesture?)
Social Model Society disables individuals who are not of the majority Places emphasis on environment and/or labelling; factors that often compound mental health difficulties Systemic approach should be utilised in order to see the whole picture
Social Model Providing opportunities increases quality of life and alleviates mental health difficulties Model does not stigmatise and rests on foundation of equality Promotes and works jointly with a strengths perspective Not seen as a cure, but rather helps people manage difficult experiences
Mental Health Act Annie was not suffering in nature or degree that warranted detention (MHA 1983) Was at risk due to disorder and mental illness Although she declined services, it was felt that she lacked capacity to make decision on her own well being needs and the likelihood of harm was high
Mental Capacity Act Annie had impairment/disorder of the mind and brain Capacity assessment carried out under s2-3 on MCA Confirmed that she lacked capacity to support own well being needs Unable to understand her situation, retain the information given in order to make decision or weigh and balance her options
Mental Capacity Act Best interests discussed with both Annie and her lodger. Allowed reduction of power imbalances and promoted ADP Felt that least restrictive principle could keep Annie in her own home Services put in place at home rather than remove Annie from her property under s.5 MCA (2005)
Services Utilised/Partnership Working Urgent package of care in place Day centre implemented due to isolation. Previous community involvement and popular person Continence support via continence nurse Occupational Therapy referral Assistive technology put in place (arguments that this infringes people’s Article 8 rights)
Services Utilised/Partnership Working Referral to district nursing team for support with skin sores Referral to memory services through GP with feed back that Annie would remain in her own home Follow up visit jointly with CPN Fire retardant blankets given by fire service due to risks with smoking. Smoking restricted to times when Annie could be monitored. Annie complied with this.
Reducing risk? Many older or disabled service users…are more exposed to risk than others because more people have intimate access to them in their daily lives. There may be different homecarers coming into their private space every day, perhaps someone they don’t know coming in to wash, bathe and dress them. (Thompson, 2005, p53)
Outcome Annie not too resistive of care and quickly adjusted to routine with encouragement and few restrictions. Improvement in Annie’s emotional health observed Maintenance of safety within the home Monitoring of well being with care package in place Lodger was able to move to another property Annie remained in her own home
Kirklees and Wakefield Independent Mental Capacity Advocate (IMCA) Service Heather Walinets - Project Coordinator / IMCA Sarah Goodfellow –IMCA Katie Littlewood - IMCA
Independent Mental Capacity Advocate Service April 2007 the Department of Health brought in the first part of the Mental Capacity Act 2005 - part of the Act made provision for a new statutory service called the ‘Independent Mental Capacity Advocate’ Service ‘Together for Mental Wellbeing’ were awarded a 3 year contract by Kirklees and Wakefield Councils to provide their IMCA service. The contract was extended for 2 years and was further extended for a another 3 years ‘Together for Mental Wellbeing’ now hold the contract until September 2015
The 5 Core Principles of the MCA 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. A person must be assumed to have capacity unless it is established that they lack capacity A person is not to be treated as unable to make a decision unless all practicable (do-able) steps to help them to do so have been taken without success A person is not to be treated as unable to make a decision merely because they make an unwise decision 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 their best interests
WHAT IS THE CRITERIA FOR IMCA ? It must be proven that an individual lacks capacity to make the specific life changing decision for themselves AND The individual must have no family or friend willing to be involved in the specific decision (paid carers are not regarded as family or friend) ****
1. When can you involve an IMCA? Changes of accommodation Serious Medical Treatment or the withdrawal of Serious Medical Treatment. End of life care planning and decision making. Gold Standard framework. Safeguarding cases Care Reviews
Independent Mental Capacity Advocate A STATUTORY DUTY A DISCRETIONARY POWER The DOH specified two ways that Social and Medical services would engage the IMCA service
Statutory Duty The Statutory Duty to involve an IMCA applies to anyone providing a service for an individual who lacks the capacity and has no family or friends, that want to be involved, while facing a specific life changing decision concerning: The provision of, withholding or withdrawing of serious medical treatment, or When a long term accommodation or move to hospital, for longer than 28 days, or to a residential care home, for more than 8 weeks is proposed
Discretionary Power The Discretionary Power to involve an IMCA applies to anyone involved in decisions concerning: Safeguarding Adults cases *** FAMILY CAN BE INVOLVED! Only exception! A care review following an accommodation decision If the Decision Maker believes that the individual will benefit from IMCA involvement in the above circumstances
Safeguarding Examples Financial abuse Physical abuse Sexual Psychological Neglect
What is a Decision Maker ? Under the Act, many different people may be required to make decisions or act on behalf of someone that lacks capacity to make decisions for themselves. The person making the decision is referred to throughout the Mental Capacity Act 2005 Code of Practice as the ‘Decision Maker’, and it is the decision maker’s responsibility to work out what would be in the best interests of the person who lacks capacity Mental Capacity Act 2005 Code of Practice 5.8 page 69 A Decision Maker must be identified for all cases, especially where a Multi Disciplinary Team is involved
Generic Advocate or IMCA ? …. The Difference Individuals must be accredited by the Department of Health and the Local Authority to work as an IMCA Generic advocates take instruction from the person they are working with IMCA’s work to a ‘best interest’ decision for the person Generic advocates can support individuals with multiple issues IMCA’s need a referral for each appropriate decision There are statutory rules about when to involve an IMCA An IMCA can access and copy medical and social care notes
RECAP Independent Mental Capacity Advocate The exception to this is Safeguarding Adults cases which may involve a Deputy, a named person or the holder of a Lasting Power of Attorney. An IMCA works with individuals who lack the capacity to make a specific life changing decision for themselves An IMCA should only be involved if there is no appropriate family member or friend willing to be included in the specific decision. This does not apply to paid Carers
The Role Of The IMCA The IMCA provides independent representation by gathering information from any relevant sources about the individual’s current or past wishes, cultural, religious and/or known needs. The IMCA provides points for consideration before the best interest decision is made The IMCA does not make the decision
The Role Of The IMCA The IMCA can request a second capacity assessment The IMCA can request further medical opinions if they believe this will help them gain a clearer understanding of the individual’s needs, available treatments or best interest outcomes The IMCA can request access to, and make copies of, records about the individual that are deemed by the holder to be relevant to the decision
Common Issues Be decision specific – not a mini mental test! Does the Decision Maker know they are the decision maker? We don’t make decisions! Decision specific! 2 decisions = 2 referrals! We need to be involved before the decision is made! Please give us time to do our job! We don’t mediate between decision maker and family!
The Role Of The IMCA The IMCA has a duty to submit a written report to the decision maker The report presented by the IMCA must be taken into consideration by the Decision Maker. The Decision Maker may disagree with the IMCA and it is important that any areas of disagreement are discussed The decision must be reported to the IMCA. The IMCA can challenge the decision through the relevant complaints procedure, Ombudsman or Court of Protection
How Do You Make A Referral ? Anyone can refer......... Discuss with your team the decision needed and whether it is a Statutory Duty or Discretionary Power to refer Telephone the Together IMCA Service to discuss your referral and/or any questions you may have If your referral meets the Mental Capacity Act criteria a referral form will be emailed or faxed to you. The referral will be acknowledged upon receipt and the case opened within 3 working days based on priority
Referral Form Checklist What is the Decision required ? Does the individual lack Capacity for the decision ? Are there any family or friends willing to be involved ? Who will be the named Referrer ? Who is the appropriate Decision Maker ? What are the Contact Details of the person that will arrange meetings ? What Date do you need the decision by ? Every box on the Referral Form needs be completed or it may slow down your referral and/or the decision
Deprivation of Liberty 39A Imca – Standard or urgent 39C Imca – No RPR 39D Imca – support to RPR or relevant person.......... 39D can be requested by RPR, relevant person or Supervisory Body. Paid RPR
Paid RPR Maintain regular contact Comply with Code of Practise Ensure DoL is legal Support the Relevant Person through the process. Challenge the DoL on behalf of relevant person Challenge the DoL as RPR Call for a review if things change.
Deprivation of Liberty Safeguards Overview of the BIA Role Mandi Gay and Darren Richardson
History of Deprivation of Liberty Safeguards (DoLS)
Mental Capacity Act (2005) came into force in 2007 Mental Health Act (1983) only other legal framework before this time. Amendment in 2007 introduced the MCA Mental Capacity Act applies to everyone over 16 years Needed due to ‘Bournewood Gap” and lack of rights for those detained. HL Case highlighted need for change History of DoLS/MCA (2005)
Within s 4 (A) and (B) Mental Capacity Act (2005) and became effective from April 2009. Allows for a person over 18 years to be deprived of liberty as long as certain criteria are met Compliant with the relevant Articles of European Convention of Human Rights (ECHR) History of DoLS/MCA (2005)
Must be over 18 years Must be experiencing an impairment of, or a disturbance in the functioning of, the mind or brain (s.2 MCA) Must not have the ability to make THE decision that needs to be made at the time it needs to be made, through lacking the ability to either understand, retain, weigh and balance, or communicate. Must be placed within a registered care home or hospital. Only the CoP has authority to deprive someone of liberty outside of this environment. Criteria for someone to be deprived of liberty under DoLS
Nurse Occupational Therapist Psychologist Social Worker Specifically trained for this purpose with an accredited qualification Who is the Best Interests Assessor?
No legal definition for a DoL Depends on number of restrictions in place Frequency and intensity of restrictions and effect on P’s quality of life The impact on the restriction of the individual’s liberty must be considered whether that individual resists or not (s.6 MCA) What is the ‘Norm?’ - over and above those to be expected as normal in the case of a person of similar age, capabilities and experiencing the same level of disability? What is a Deprivation of Liberty?
Managing Authority – Hospital or Care Home that person resides within Supervisory Body – Local Authority that oversees and regulates the care home or hospital Within DoL Safeguards there are two authorisations given. 1. Urgent Authorisation – Allowable for seven full days. Time begins when the request is made to the Supervisory Body by the Managing Authority. 2. Standard Authorisation – Assessments must be completed within 21 days. DoLS assessment must be completed within these time frames with a recommended outcome for the person. DoLS Terms and Meanings
To decide whether a person is deprived of liberty within the meaning of the Act. To determine whether this deprivation is legal To determine whether the deprivation should continue in P’s best interests To give a recommendation on future care If necessary, to make a determination on whether a deprivation of someone’s liberty should continue and for how long. BIA Role within DoLS
To Follow the principles of the Act: 1. A person must always be assumed to have capacity unless established that they do not 2. All practicable steps must be taken to help them make the decision 3. A person must not be treated as lacking capacity simply for making unwise decisions 4. Any act done, or decision made on behalf of a person lacking capacity must be made in that person’s best interests 5. The least restrictive option must always be used BIA Role within DoLS
Consult with the Managing Authority (hospital or care home) Consult with any person suggested by those detained where possible Must have regard to the findings of the Mental Health Assessor To examine the care plan, needs assessment of P Where practicable and appropriate to consult anyone named by P, or anyone engaged in the caring role or interested in his welfare Anyone done of Lasting Power of Attorney or a Court Appointed Deputy BIA Role within DoLS
Unfortunately Annie had a chest infection and this was not responding to treatment at home. Due to her health deteriorating she was admitted in hospital. Annie following her hospital treatment was recovering and deemed medically fit for discharge, but not well enough to return to her home. Assessments showed she still required significant care and support from a nurse over 24 hrs.
A Capacity Assessment and Best Interest meeting was held at the hospital and the decision was made for Annie to be discharged from hospital to the Apple Care Nursing Home. Initially Annie was compliant with all aspects of her care – however this may have been as she was still recovering. When Annie came to be at her optimum she was continually asking to go home, stating that staff are keeping her prisoner and that they wouldn’t let her out.
Annie, when asking to go home was banging doors and when staff from the Apple Care home approached her she became agitated, resistive and aggressive towards them. These incidents happened frequently and lasted for some time which caused her some distress. Annie was under close supervision throughout a 24 hours period as she was still smoking heavily but not disposing of her cigarettes safely.
Staff had genuine concerns for her safety and had to prevent her from leaving the care home without an escort and felt that they were now depriving her of her liberty. The Care Home Manager contacted the local authority requesting an urgent DoL’s Authorisation.
6 Assessments in all: 1. Age Assessment 2. No refusals Assessment 3. Eligibility Assessment 4. Mental Health Assessment 5. Mental Capacity Assessment 6. Best Interests Assessment Carried out by BIA and S.12 (MHA) Doctor Assessment Process
Visit the care home or hospital Interview the person deprived Scrutinise care plans and medical notes – important that case notes and care plans are as detailed and informative as possible Interview staff members Interview family members Interview the Relevant Person’s Representative if this is not a family member Interview anyone that the deprived person asks us to speak with, so long as this is practicable Seek past information via alternative technological databases via health and social care agencies. What will the BIA do as part of their duties?
BIA must reports as to whether a DoL is occurring and whether this is legal – must not be implemented for the convenience of, or due to lack of services Must record every interested person that has been consulted Must decide whether the DoL should remain in place and record the reasons why this is in the best interests of the person Must give a maximum authorisation period (maximum of 12 months) Must give any recommendations or conditions that they feel appropriate to ensure P’s best interests are met Must recommend a Relevant Person’s Representative if the person lacks the capacity to do so independently. Outcome of BIA Decisions
RPR needs to be over 18 years of age Must be able to visit the person regularly Must be willing to take on the RPR role Must have the ability to act in the best interests of the person in line with section 4 of the MCA. RPR must not be: financially interested in the relevant person's managing authority a relative of a person who is excluded in the above point employed by, or providing services to, the care home in which the person relevant is residing employed by the hospital in a role that is, or could be, related to the treatment or care of the relevant person employed to work in the relevant person's supervisory body in a role that is, or could be, related to the relevant person's case Relevant Person’s Representative (RPR)
RPR could also be an IMCA if there are concerns and risks to P, or if there is nobody to take on this role informally RPR has the right to access information regarding the care and welfare of the person within the care home/hospital Has the right to put forward a complaint to the supervisory body or request a review of the DoL The right to appeal the DoL on the person’s behalf to the Court of Protection if they remain unhappy with the reason for the DoL. Duties and Rights of the RPR
In order for a fair and just outcome to any DoL assessment it is essential that the following are in place: Availability and engagement with BIA, particularly home manager/key worker/staff nurse/ward sister Care plans/risk assessments and all paperwork are up to date and as detailed as possible Seek advice as soon as possible regarding DoL to avoid unnecessary referrals for restrictions that would not meet DoLS criteria – Contact DoL Team office Best interests of the person to be upheld at all times Incorporate family within the person’s care plan and keep them involved as much as possible Final important points