1. Mental Capacity Act & Deprivation Of Liberty Safeguards
(Alerter Level – adults / Group 3 – children and young people)
“Protecting and promoting the rights of people who lack capacity”.
with
Sarah Biddulph

2. Health and Safety Learning Material Fire Certificates Toilets Smoking
Phones
Breaks
09.30

3. Learning Agreement Look after each other – this is a difficult subject
Listen but do not be afraid to respectfully challenge each other
Ensure examples from real cases remain anonymous.
If you discuss information about a person who is at risk of significant harm, this information will have to be passed on to the appropriate agency.
Please ask questions!

4. Outcomes By the end of the module you will:
Be able to put the principles of the mental capacity act into practice
Be able to assess and record mental capacity assessments
Be able to make best interest decisions
Understand the process for depriving a person of their liberty in order to keep them safe from harm
Be aware when and how the Act applies to children and young people

5. Emily’s Safety
Watch the introduction to the film and decide in your group what the care worker/care home should do about this situation.
09.35
Show the first two minutes of the film (until carer has cleaned up spillages in kitchen). Divide into groups and ask them to decide what should happen next. Write up all answers and say you will refer back later.
This activity will give you an idea of what current practices/values there are in the group. It will also enable you to refer back throughout the session. Possible answers include:
Hide the kettle
Give her a flask
Talk to her about it (this is the correct answer)
Risk assessment
Get carer to supervise/carry tea
Make tea for her

6. Aims of the Act
To protect the rights of people aged 16 years or over to make their own decisions (now and for a future time when they may lack the capacity to do so).
To tell us what do when we are concerned about people’s ability to make decisions for themselves.
NB: The legislation around MCA & DLS is still evolving as more cases come to court.
09.45
Children and young people should be involved as much as possible in decisions about their lives, and care, even when they are not able to make these decisions on their own.
It should not be assumed that children with learning difficulties are unable to take competent decisions, which can be aided by presenting them with information in an appropriate way.

7. Capacity What could affect someone’s capacity
(ability) to make a decision?
09.50
Write on flip chart: Brain injury, infection, stress, pressure, illness, bereavement, depression, no hearing aid/glasses, medication, tiredness etc…. Age, maturity, lack of experience/education
Wide ranging causes so we can see they can be temp, fluctuating, permanent

8. Assessing Capacity
If you believe someone is having difficulty making a decision you should carry out a mental capacity assessment
10.00

9. Assessing Capacity
Can the person understand the information relevant to the decision to be made?
Can the person remember the information for long enough to make the decision?
Can the person weigh up the information in order to make the decision?
Can the person communicate their decision (by talking or any other means)?
Explain that the person only need to be able to understand the information relevant to the decision being made at the time. Emphasise the need to explore best methods of communication and checking understanding.
Explain that information needs to be remembered only for long enough to make the decision. This time f5ame will vary depending on the outcomes/consequences of that decision. Use carer/ social worker examples
Ensure the person is qiven appropriate opportunity to weigh the information. Be objective about how you identify the risks and benefits.
Make sure all communication methods are explored – even the most subtle styles can communicate well enough to express wish/ make decisions. Discuss gentlemen with Locked In Syndrome fighting cases to end lives through the courts.

10. Assessing Capacity
If the answer to all of these questions is yes, the person is deemed to have the capacity to make the decision. They have the right to choose what will happen even if this is risky.
If the answer to any of these questions is no,
then the person is deemed to lack the capacity
to make the decision. Ensure the best interest
decision making process is followed,
continue to involve the person as much as
possible and consider the need for an IMCA.

11. Assessing Capacity You ask him what he thinks about this and he
John, 17, has a brain injury and lives with his parents and 3 younger siblings. He has recently started attending college, made new friends and seems to enjoy his time there and the independence it gives him. He receives DLA but his mother complains that he's never got enough money to pay his rent. You suspect that his 'friends' may be taking advantage of him. When you see John you ask him about college and his new friends. He says he often takes them out for a burger at lunch time rather than eating their packed lunches.
You ask him what he thinks about this and he
says he doesn't mind. You say 'it must be
expensive' and he agrees. John tells you that
he had trouble paying his rent last week and
he adds "I have to keep up to date with my
bills or my mum will chuck me out."
10.20
He may lack capacity when he is drunk – it may be necessary to discuss this with him when he has capacity and plan for a time when he does not. This would be like an advance statement……

12. Assessing Capacity (cont…)
You ask him why he buys most of the burgers and he says that he loses track of whose turn it is and so when his friends tell him it's his turn he buys them. He says he doesn't mind because he enjoys going out with them. You say that it doesn't seem fair and he agrees. He says his friends think it’s fair because he gets DLA and he’s got more money than them. You ask him what he could do to make the situation better and he says he could take less money out with him or he could keep a record of what he buys but he won't do these things because he doesn't want to lose these friends.
Does John appear to have capacity about this issue?
Yes, John appears to understand that his friends may be taking advantage of him, that this costs him money and that this means he might not able to pay his rent. He understands that his mum might throw him out if he is unable to pay his bills. John has strategies that he could use to prevent this situation from occurring, however, he feels that doing these things may result in him losing his friendships and he thinks that this is more important to him at the moment. You may consider this to be an unwise decision but it appears that John has capacity to understand the implications of the decision he is making.

13. Advance & Proxy Decisions
The Mental Capacity Act allows us to plan ahead for a time when we may have lost capacity. We can:
Make advanced decisions to refuse medical treatment (18yrs+, legally binding)
Make advanced statements about how we wish to be cared for (guidance only)
Nominate someone to make certain decisions for us (18yrs+ property and finance and/or health and welfare)
You have been asked to consider these in your pre course workbook
10.30
Lasting PoA – 18+ only with capacity. One or more people. Property and affairs (even if have capacity) and/or health and welfare (only if lack capacity). Must be registered with OPG before using. Must abide by MCA. Old Enduring PoA still valid for finance & property.
Court of protection deputy
If you lack capacity, the court of protection can choose a ‘deputy’ to act – family, solicitor, local authority. For financial affairs it can be for a person of any age otherwise only for those age 16+. Same powers and duties as above.
No-one can make decisions for other people about: Marriage & divorce, Creation or dissolution of civil partnerships, Sexual relationships, Adoption or discharge of parental responsibility, Fertilisation,
Advance decisions to refuse treatment
Cannot request medical treatment or anything illegal. Can refuse life-sustaining treatment as long as this request is written, signed, witnessed and clearly states that the decision applies even if the person's life is at risk. Advance decisions to refuse treatment are legally binding except where they are not valid or applicable:
The person has done something which goes against their decision, They have withdrawn their decision, They have given the power to make this decision to an attorney, They do not relate to the specific treatment being proposed, The circumstances are different, There have been changes which would have affected the person's decision had they known about them e.g. changes in personal circumstances, e.g. they have become pregnant
They relate to some treatments under the Mental Health Act, 1983, The person was under 18 years of age when the decision was made.
14/09/2007
To whom this may concern
If I come into hospital regarding an overdose or any attempt of my life, I would like for NO life saving treatment to be given. I would appreciate it if you could continue to give medicines to help relieve my discomfort, painkillers, oxygen etc. I would hope these wishes would be carried out without loads of questioning.
Please be assured that I am 100% aware of the consequences of this and the probable outcome of drinking antifreeze, eg death in 95-99% of cases and if I survive then kidney failure, I understand and accept them and will take 100% responsibility for this decision.
I am aware that you may think that because I called the ambulance I therefore want treatment, THIS IS NOT THE CASE! I do however want to be comfortable as nobody wants to die alone and scared and without going into details there are loads of reasons I do not want to die at home which I realise you will not understand and I apologise for this.
Please understand that I definitely don't want any form of ventilation, resuscitation or dialysis. These are my wishes please respect and carry them out.
Yours sincerely
Kerrie Wooltorton
Advance statements.
Should be used by us to help us decide what is in someone’s best interest if they become unable to make a specific decision – not legally binding.
16&17 year olds
The Mental Capacity Act applies to all people aged over 16 but below that age children and young people should be involved as much as possible in decisions about their care, even when they are not able to make decisions of their own. It should not be assumed that children with learning difficulties are unable to take competent decisions although they may well require extra support and the information will need to be presented in an appropriate way.
When obtaining consent a doctor must establish whether the child is legally competent (in other words do they have the capacity to give consent). Once children reach the age of 16, they are presumed in law to be competent, and in many respects should then be treated as adults and so can give consent for their own surgical and medical treatment. However, it is good practice wherever possible to involve families in their care unless it would not be in the child/young person’s best interests. Under the age of 16 children are not automatically deemed to be competent to give consent but the courts have determined that they may be if the have sufficient understanding and maturity to enable them to understand fully what is proposed. This concept is referred to as the Gillick competency (a phrase used interchangeably with Fraser Guidelines/Competency) . If a competent child requests that confidentiality be maintained this must be respected unless the doctor considers that failing to disclose the information to parents (or those with parental responsibility) would place the child at serious risk of harm At 16 years of age the law allows young people to give their own consent in matters of their own medical/surgical treatment. For children under the age of 16 the Fraser Guidelines/Gillick Competence (these are interchangeable terms) apply – the courts have determined that children under the age of 16 can be legally competent if they have ‘sufficient understanding and maturity to enable them to understand fully what is proposed’ This does not mean families should not be involved – it is always recommended that wherever possible families are involved in decision making.
If a competent child under the age of 16 is insistent their family should not be involved then their right to confidentiality must be respected – unless such a right would place them at serious risk of harm.

14. 5 Principles
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 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.
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.
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.
10.45
Discuss principle 1 as a whole group. Identify importance of making time for this. Use tea trolley example of poor practice.
Divide group into 3 smaller groups give each group either principles 2,3,or 4 with questions to consider.
Feedback to large group.

15. Unwise Decisions Summary
If people have capacity you must still actively encourage safe, healthy behaviour, revisit assessments if evidence emerges that the person may lack capacity. You do not have the right to stop people making capacitated, free choices.
If people lack capacity, you must follow the best interest process.
Who?
Involve the person as much as possible
Power of Attorney or court appointed deputy with the right to make the decision
Any person with an interest in the welfare of the person concerned (if people are not be consulted, the reasons for this should be recorded)
Refer to an IMCA for relevant decisions
What?
Decide whether the decision can be delayed
All the relevant factors the person would have considered if they had had capacity
The person’s past and present wishes, feelings, values and beliefs (this includes prior written statements and advance decisions to refuse treatment)
Ensure the decision or action is not Motivated by a desire to bring about the person’s death or Influenced solely by the person’s age, appearance, condition or behaviour (although these things may need to be taken into consideration)

16. Best Interest Checklist
Decisions never made solely on the basis of a persons age, appearance or other aspect of behaviour that might lead others to make unjustified assumptions.
Account for all relevant circumstances
Is there a likelihood of regaining capacity – could the decision be delayed?
As far as possible encourage the person to participate.
If life-sustaining treatment then the decision must not be motivated by a desire to bring about their death.
Can we ascertain the persons past and present wishes, feelings, beliefs and values?
Consider the views of other people eg. anyone formerly named by the person to be consulted, those involved in caring for the person, those interested in their welfare, lasting power of attorney or any court deputy.
Consultation Independent Mental Capacity Advocate if required.
Who?
Involve the person as much as possible
Power of Attorney or court appointed deputy with the right to make the decision
Any person with an interest in the welfare of the person concerned (if people are not be consulted, the reasons for this should be recorded)
Refer to an IMCA for relevant decisions
What?
Decide whether the decision can be delayed
All the relevant factors the person would have considered if they had had capacity
The person’s past and present wishes, feelings, values and beliefs (this includes prior written statements and advance decisions to refuse treatment)
Ensure the decision or action is not Motivated by a desire to bring about the person’s death or Influenced solely by the person’s age, appearance, condition or behaviour (although these things may need to be taken into consideration)

17. Independent Mental Capacity Advocates
An Independent Mental Capacity Advocate must be
instructed where a relevant best interest decision is being
made for an individual who lacks capacity and who has no
appropriate unpaid representative.
Relevant decisions are:
serious medical treatment
a hospital admission likely to last for
more than 4 weeks
a move of accommodation likely to last
more than 8 weeks
Deprivation of Liberty authorisations
When decisions relate to Safeguarding investigations an IMCA can represent victim or perpetrator if they lack capacity regardless of whether or not they have unpaid representation. .

18. Time for a break
mins

19. Watch the film ‘Emily’s Safety’.
Best interests
Watch the film ‘Emily’s Safety’.
Do you think the right decision was reached? Why/why not?
What was done well and what could/should have been done differently?
11.35

20. Best Interests
The Mental Capacity Act protects those carrying out a best interest decision from liability if:
they reasonably believed the person lacked capacity
they reasonably believed that they were acting in the person’s best interests
and
they were not negligent in carrying out the act

21. Record Keeping
It is essential that good record keeping is maintained throughout the decision making process. The minimum that should be recorded is:
What the decision was
Why the decision was made
How the decision was made
When the decision was made
You can record assessments and decisions in a person’s daily notes or by using the FACE assessment tool.

22. (to protect them from harm)
Principle 5
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.
There may be times when we need to restrict someone’s rights and freedom of action
(to protect them from harm)
11.45
Environmental - Locks on doors/windows, alarms, pressure mats, stairs, gates
Chemical - sedation
Physical – touching, holding, restraining
Verbal – distraction, notices, rules, commands, threats
Equipment – tilt chairs, bed rails, lap belts etc
Restricting access to people or places, to means of or aids to communication, to finances, to information, to clothes, shoes or aids to mobility

23. People Who Lack Capacity
The MCA states:
the person taking action must reasonably believe that restraint is necessary to prevent harm to the person who lacks capacity and
the amount or type of restraint used and the amount of time it lasts must be a proportionate response to the likelihood and seriousness of that harm.
(MCA CoP section 6.41)

24. Recent Case Law There has been a Supreme Court Judgement
This is currently being considered at a strategic level in Devon and some aspects of the judgement reflect in this training.
Any future changes in practice would be communicated across the network of agencies trained.
•Additional information is available from CQC and decisions need to be taken by providers at a local level at this time

25. Restraint v Deprivation of Liberty?
Where there are multiple restraints or one restraint that impacts significantly on the rights and freedom of action of an individual, this may amount to a deprivation of liberty.
This is more than just restraint and amounts to taking ‘complete and effective control’ of a person’s life.
12.05

26. Restraint v Deprivation of Liberty?
Questions to consider in relation to people who lack capacity to consent to their care arrangements.
Is the person under continuous supervision and control?
Is the person free to leave?
(consider how staff might react if the person did ask to leave or relatives asked to remove them)
12.05
Explain standard authorisation process (21 days)

27. Lawful Restraint v Deprivation of Liberty
Consider the short examples and decide whether they would be regarded as lawful restraint or a deprivation of liberty.
11.50
Bedrails
If bedrails are used to reduce the risk of residents accidentally slipping, sliding, falling or rolling out of bed, they are not classed as restraint. If they are used for any other purpose – say, to discourage a resident from getting up independently – this would be viewed as restraint. While bedrails can prevent falls, using them incorrectly can be potentially dangerous, even leading to death. The most important thing is to complete a risk assessment based on an individual’s needs, and to do a thorough review of the combination of equipment used (grab-handles, bed, mattress, bedrails).
Keypads for doors
If a resident can’t recall the keypad code and is therefore locked in, this is a form of restraint. All parties may decide that this is an acceptable restraint – for example, on a front door to a busy street – but not appropriate on a door to the home’s back garden. The keypad may also be restricting for all residents, but only be required for a smaller number. In some cases, keypads are used in many places in a home, when actually they are only needed on the front door.
Electronic tagging
Some say this gives people with dementia a greater quality of life, as they can walk out in the community independently with peace of mind for them and their caregivers. But in some instances, the tagging may lead to restraint: the person is coaxed into not leaving the home at all (perhaps because no one is available to respond if a problem arises outdoors), or a staff member gets involved to limit the person’s activities in some way – for example, escorts the person away from the pub when they have gone there for a quick drink.
Grabbing a resident’s arm as they are about to strike another resident
This is clearly a form of restraint. On the face of it, it seems an appropriate one, if it is really clear the resident is just about to strike another resident, and it is not possible to remove the other person. Most care staff will be stronger than residents, so staff need to be careful that their actions are in proportion to the situation. The vital thing is that staff review a situation like this as soon as possible after it occurred: why did it happen, does it fit with any pattern or other presenting problems, and was there anything that could have been done to avoid the situation escalating to the point of assault?12
Deep-seated chairs
For many residents who have trouble walking, deep-seated chairs can be difficult to get out of, and onto, without help. Having to wait for someone else’s help every time you want to get up or down can be very limiting, and in this sense is a form of restraint, particularly if staff are not available when needed.
Residents experiencing difficulty getting the attention of staff
Sometimes it can seem that care home residents are happy enough minding their own business for long periods of time, and for some people this will be true. But many residents need closer levels of support due to their high levels of need. By failing to observe and engage with residents, staff are then not able to recognise or respond to their needs – which means they are very likely to be indirectly restraining residents (for example, by not promoting walking, not helping with regular visits to the toilet, not being aware of whether anyone is becoming upset or agitated, and so on).
Antipsychotic medication
The value of antipsychotic medication for people with dementia is increasingly being questioned. Except in very difficult situations, it is now thought that many people with dementia would be better off if they were not taking antipsychotic medication, which can make people more likely to fall and to be drowsy during the day time. This medication can be seen to be restraining people, and has been described by some as a ‘chemical cosh’. Many other, less restricting, ways of helping people should be tried before medication. If prescribed, antipsychotic medication should be reviewed regularly by a medical practitioner.
Belts
A belt might be used to stop a person from getting up out of a chair, if the person has difficulties with getting up or walking, or is making frequent, unsafe attempts to do so: this is a form of restraint and is not acceptable. It’s possible that a person who can give consent indicates a preference to use a belt, but this is still a form of restraint.
Individual meal tables
Small, easily moveable meal tables are often at hand for residents to use, especially at morning and afternoon tea times. But what happens after they’re not needed? For 13
some, these handy tables can become a form of restraint – effectively locking them in if they are unable to push the table away without help.
No activities on the weekend
In many care homes the atmosphere of the home is quieter at the weekends, when fewer staff are about and perhaps no scheduled activities are running. Some residents come to dread this time of the week, and find the days long and depressing. In its widest sense, this too can be seen as a form of restraint – residents are not being helped to meet their full range of needs. Perhaps they need support to go to the local church? Perhaps they need to be linked with other locals with their interests, for example, fellow football supporters?

28. Restraint v Deprivation of Liberty?
People living in hospital and care home settings have legal protection under the Deprivation of Liberty Safeguards
If the restraint amounts to a deprivation of liberty, referral to the Local Authority DLS team will be required (18 years or over). They will then assess whether or not this is in the person’s best interests.
A deprivation of liberty is illegal if not in a persons best interests.

29. Restraint v Deprivation of Liberty
Consider Pauls story
What ideas do you have about a less restrictive approach to his care?
In his Fathers words “do you really have to do this?”
12.10
work in small groups to decide whether there is a more proportionate response.
Arrange for family and friends to sit with Paul
Look at options for allowing him to sit out in his chair.
Look at triggers to stimulate Paul and help him to cope.
Look at stimulus to help distract Paul from wanting to move around so much.
Emphasise that minimising any restrictions and restraints used in care plans and aiming to maximise the opportunity to empower the person will significantly reduce the likelihood of abusive situations occurring.

30. Applying for Authorisation
The Care Home or Hospital makes a referral to the Local Authority DLS team and requests a Standard Authorisation. Formal assessment by a Best Interest Assessor will take place within 21 days.
Notify CQC of the application and the outcome.
For providers of other services such as Supported Living an application through the Court of Protection would need to be made.
12.20

31. Emergency Situations
In an emergency, a care home or hospital may legally deprive a person, aged 18 or over, of their liberty for up to 7 days, if they feel the criteria have been met.
They need to inform the Local Authority DLS team when they do this.
A formal assessment will then take place within 7 days.
Where 16 &17 year olds need to be deprived of their liberty an application to the Court of Protection or a Mental Health Act assessment would need to take place.
12.20

32. Concerns
If you have a concern that people in your care are being deprived of their liberty speak to the manager of the service.
12.20

33. Summary The MCA states that people have the right to:
Make their own decisions
Have help to make decisions
Make decisions that other people disagree with (as long as they understand them). We retain a duty of care for these people which means we should actively encourage safe, healthy behaviour. However, too much pressure could be seen as abusive.
Have decisions made in their best interest if they lack capacity, this may include using proportionate restrictions and restraint to keep them safe
Have their rights and freedom of action restricted as little as possible
Good record keeping is essential.
12.25

34. Mental Capacity Action Plans
When I get back to my workplace I will:
Read……
Speak to……
Find out……
Tell……
Ask……
Change……
For advice about applying the Mental Capacity Act
or Deprivation of Liberty Safeguards contact the
advice line on: