1. The Mental Capacity Act 2005 and the Deprivation of Liberty Safeguards
P4 Practitioner Level
May 2015
9.30 – 9.32 welcome and introduction to course
Welcome
Practitioner safeguarding – follow on from alerter – also MCA course available – different expectations of you to alerters
Me, care worker, social worker – adults – MH, LD, OP, OPMH, Sensory, PD - safeguarding
Ensure that between people sign in and state whether or not they have completed the pre-work
For those arriving late they will be given the laminated ground rules card. The agreed cut off for arriving late and leaving early is 10% of the course which means that generally if people miss 35 mins or more they will not be able to stay / get a certificate.
scwd/scwd-safeguarding-adults.htm

2. Mobile Phones / Devices
Housekeeping
Fire Procedure
Smoking
Toilets
– Health and Safety, arrangements for the day
Trainer to locate toilets and tell attendees where they are
Familiarise yourself with the fire procedure and assembly point
Smoking – ensure that you are familiar with the requirements of the venue and that the attendees are encouraged to adhere to them. E-cigarettes are to be smoked during breaks only
Mobile Phones / Devices – Not to be on unless an emergency / on-call. May need to labour the issue and remind people after lunch
Breaks minutes am and pm. 45 minutes for lunch. Please return promptly so that the day can stay on track
Finishing time – including completion of evaluation forms etc
Breaks
Finishing Time
Mobile Phones / Devices

3. Ground Rules
Safeguarding is a dynamic world and we continue to learn about how to prevent people from being harmed on both a strategic / organisational level and as individual practitioners.
Safeguarding is about partnership, it is not about blame. All agencies and individuals need to take responsibility, to reflect and learn to safeguard people who may be vulnerable.
Respectful discussions about other disciplines / agencies – SA is not about a culture of blame. Easy to state that it’s the fault of X professional X organisation but all agencies and people take responsibility
It is essential that we have an open mind regarding safeguarding REFLECTION

4. Ground Rules
Confidentiality within the group will be respected but may need to be broken if a disclosure of unsafe practice, abuse or neglect is made during the course – this will usually be discussed with you first.
ground rules
Confidentiality – individual comments are not passed on. SA issues will be highlighted – trainers responsibility to alert – will discuss with person. Recurring themes are passed on.
Anything else anyone would like to add? Just ask the question.
Also check for physical as well as emotional comfort at this time

5. Introductions Name Place and nature of work
Pre-read – what do you want to get out of today’s session?
9.40 – introductions
Name, Place and nature of work / role – try and establish specifically what their role in MCA is
Pre-read - are there any areas that you are unsure of? Any questions? Anything you want to get out of today generally, questions, challenges and so on.
Find one thing from each person to discuss / reflect back to them etc to start to develop a confidence in contributing to group discussions

6. Outcomes
Understand the legal framework for providing care, treatment and support
Consider the implications of using restraint to keep people safe from harm
Be aware of cumulative effects of restrictions and ways of minimising their use / impact
Understand what is meant by Restriction, Restraint and Deprivation of Liberty and the significance of the differences between them
9.55 – 9.57 outcomes

7. Training Transfer Getting learning into practice
“50% of learning fails to transfer to the workplace”
(Sak, 2002)
“The ultimate test of effective training is whether it benefits service users”
(Horwath and Morrison, 1999)
discuss research by ripfa/plymouth Uni/cornwall cc
Lots of research shows that learning fails to transfer to the workplace
Lectures – only 10% stays
So much going on in our lives
We need this to transfer in safeguarding

8. Emerging Changes / Considerations
Many of you will be aware that there has been a Supreme Court Judgement
This is currently being considered on a national and local basis and some elements are reflected in this training
Additional information is available by organisations such as CQC web site and decisions need to be taken by providers at a local level at this time
New Resources
Care Act 2014
Group Discussion

9. Supreme Court Judgment
“What it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. 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 [...] then it must also be a deprivation of liberty of a disabled person.” (Lady Hale)

10. Care Act Wellbeing
beginning with the assumption that the individual is best-placed to judge the individual’s wellbeing. Building on the principles of the Mental Capacity Act, the local authority should assume that the person themselves knows best their own outcomes, goals and wellbeing. Local authorities should not make assumptions as to what matters most to the person;

11. New Statutory Advocacy
20/04/2017
The Act requires local authorities to involve people in assessments, care and support planning, and reviews.
In order to facilitate the involvement and engagement of people who would otherwise have difficulty, it introduces a new requirement to arrange independent advocacy for people…
A) who have substantial difficulty in being involved/ engaged in these processes and
B) where there is no one available to help facilitate this involvement and engagement.
My assessment requires that people are involved in their assessments fully
Where there are communication issues or cognitive difficulties CCT / LD /Sensory team would carry out assessment as opposed to CDP
Advocates are already being used

12. Advocacy
Self Advocacy is when someone is able to express their own views. Could be verbal or non-verbal
Supported advocacy when someone needs encouragement to express their views
Advocacy – when someone speaks on behalf of another
IMCA / IMHA – professional advocates under specific legislation

13. Human Rights Act, 1998 “All human beings are born free
and equal in dignity and rights.”
The HRA defines the role of the State in upholding
our freedom, dignity and rights; this includes
protecting us from each other.
It also establishes if, when and how our rights may
be restricted or withdrawn.
10.00 – 10.04
Also applies to those carrying out functions of a public nature, e.g. care homes.
All other UK law to support/be compatible with HRA e.g. Equality Act applies to providers of goods and services (not of a public nature)
Principle of non-intervention unless
Must use a procedure prescribed by law
9 equality strands
Race
Religion and belief
Gender
Gender reassignment
Sexuality
Disability
Pregnancy and maternity
Married and civil partnership
Age

14. Human Rights Act 1998
This came into force in October 2000 in the UK. Basic human rights incorporated for the convention are:
Article 2 Right to life
Article 3 Prohibition of torture or inhumane
degrading treatment or punishment
Article 4 Prohibition of slavery & forced labour
Article 5 Right to liberty & security of person
Article 6 Right to a fair hearing.
Article 7 No punishment without lawful
authority.
International law, which protects human rights.& provides a recognised standard for disabled people human rights. This will help the international community to put pressures on countries who's work on disability rights could be improved. Counties that ratify will also have to report regularly to the un about the steps it is taking to protect & promote disabled peoples rights. UK- amoung the 1st 82 countries to sign up to it on March the Uk aims to ratify the convention by the end of  
"Human rights and publicly-funded care
The protection of the Human Rights Act has been extended to people living in publicly funded accommodation with nursing or personal care." - CQC e-newsletter
So we need to ensure that we build this into any training where reference is made to the HRA.  Up until now the HRA has only placed duties on public authorities / bodies.  Under the Health and Social Care Act 2008 the same duties now apply to publicly funded services
HRA = fundamental rights & freedom. These rights not only effect matters of life & death like freedom from torture & killing but rights that effect everyday life: what you can say or do, your beliefs, your right to a fair trail and marry other similar entitlements. Rights are not absolute- government has the power to limit or control them in times of service needs or emergency.
Article 2, 3 & 7 are absolute rights & can’t be restricted in any circumstances or balanced against public interests
30 articles in total 14

15. Human Rights Act cont
Article 8 Respect for private & family life, home
or correspondence.
Article 9 Freedom of thought, conscience &
religion.
Article 10 Freedom of expression.
Article 11 Freedom of assembly & association.
Article 12 Right to marry & have a family.
Article 14 The enjoyment of the rights &
freedom set fourth in this convention
shall secured without discrimination 15

16. Human Rights: A Balancing Act
Some rights may be withdrawn or limited ‘in accordance with a procedure prescribed by law when 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.’

17. Key Principles
Principle 1: A person must be assumed to have capacity unless it is established that they lack capacity.
Principle 2: Individuals must be supported to make their own decisions
Principle 3: People have the right to make what others might regard as an unwise or eccentric decision
first 3 principles are the focus
Principle 1 – it is not sufficient to say of a person putting themself at risk of harm, ‘its their choice’ unless you have assessed their capacity to understand and manage that risk
Principle 2 – what do you do to help people?
Principle 3 – what does unwise mean?/its only our opinion

18. Key Principles Principle 4: Best Interest
If a person has been assessed as lacking capacity then any action taken, or any decision made for, or on behalf of that person, must be made in his or her best interest.
Principle 5: Least Restrictive 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.
principles 4 and 5
These are the last two principles of the Act – any intervention by the state must meet these two principles

19. The MCA “Process” Is there a concern about a persons capacity ?
(with regard to a specific decision)
Undertake a Capacity Assessment Or
Their own decision Best Interest decision
(even if we think it is unwise) (multi-agency)
Run through and explain that we looked at undertaking mental capacity act assessments on P2 (brief recap of planning relevant information and checking understanding of this out) and supporting people who have capacity to make decisions and these are risky or ‘unwise’; on P3 we are going to look at working with people who lack capacity

20. HL v. UK
HL was an autistic man with a Learning Disability who lacked capacity to consent to treatment Admitted to hospital in emergency Not treatable under MHA Discharge to carers refused ECtHR – illegal - no formal procedure for admittance or appeal against detention

21. Terms Best Interest is one underpinning principles of the Act
Best Interest is a collaborative process used when an adult lacks capacity and an important decision needs to be made
A Best Interest Assessor is the key professional when a Deprivation of Liberty Safeguard application is made

22. Case study – Val & Vernon
Play DVD
Val – think about what the issues are
Activity

23. Human Rights
Val lacks capacity in most areas of her life. No one person has legal authority (e.g. LPA) to make decisions on her behalf. In which areas do you think the State may have a duty to intervene to protect her Rights?
small group work
Food, drink, medication, support needs, prevent abuse
Activity

24. The Best Interest Decision
What are the options?
What are the pros
and cons?
Inform them of decision
To go to the care home for two weeks.
To undergo a period of assessment and care. Physical, emotional etc
To give Vernon a rest
To establish how to meet Val's needs in an ongoing way
To support Vernon to be part of that
To review medication/administration
The care home is aware that Val may not be happy with the decision
Activity

25. Best Interest Decisions
“What good is it making someone safer if it merely makes them miserable? No good at all.” (Lord Justice Munby)

26. What could you do if Val refuses:
To go to the care home?
To stay at the care home?
To take her medication?
including feedback large or small group discussion
1. Best Interest has already been established so she has to go to the care home – need to find out why/see if you can do anything to help make it easier/calm nerves etc. Under spirit of the act she can be transported (s.5 best interest decision) –use encouragement, gentle persuasion, be quite firm, suggest you go for ‘lunch’, use family/friends; restraint/sedation can be used for short period – if a very long journey may need to think about DoL/MHA assessment
2. Best Interest has already been established so she has to stay at the care home – try to find out why/see if you can make it easier for her. Home will be aware of BI decision and depending on the level of restraint required to keep her there (consider cumulative effects) they may need to apply for DoLs authorisation (impact on Val and level of refusal is crucial – is she trying to leave?)
What might you consider as acceptable restraint in this situation?
3. It has been decided that it is in her best interest to take her medication – find out why she won’t take it/consider other options e.g. soluble. Discuss with GP / family and may give covertly – may need to do as urgent initially/via phone etc
Activity

27. What is Restraint? Someone is using restraint if they:
Use force – or threaten to use force – to make someone do something that they are resisting, or
Restrict a person’s freedom of movement, whether they are resisting or not
– what is restraint + examples
Ask the group to come up with
a definition
examples of
Draw grid on flipchart and write up the examples – is it ever/never acceptable?
Equipment must be used for the purpose for which it is provided
If you’re not sure – get agreement from other professionals/family – document what, when, how.....in care plan
Restraint is not always bad -> Depends what you are doing and why
Activity

28. Examples of Restraint Chemical Financial Physical Barriers
Removal of equipment
Preventing contact
No communications
IT / phone removal
Psychological
refer back to HRA – private and family life, liberty, degrading treatment – court of protection, DoL, SA
Chemical –giving or not giving meds
Financial controlling access to their money
Physical – holding down, inappropriate use of equipment
Barriers – tables, chairs etc, locked kitchens other doors
Removal of equipment – walking frames etc
Preventing contact – to meet up with / see people or have visitors, refuse to discharge to carers etc - DoLS
IT / phone removal – or not being able to contact people. Use of tech to speak or others knowing how to use
Psychological – notices, rules etc

29. Restraint
Any action intended to restrain a person who lacks capacity must follow the following two conditions:
The person taking action must reasonably believe that restraint is necessary to prevent harm to the said person
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 harm
– example of same action and when ok / not ok to use
e.g. Use of tilt chair. If very serious circulation problems and if you do for half hour and make it as pleasant as possible e.g. Do a puzzle, may be ok but if because staff short and goes on for hours, not ok.

30. Guidance / good practice
Social Care Institute for Excellence (SCIE)
ADULTS’ S ERVICES REPORT 25
Minimising the use of ‘restraint’ in care homes: Challenges, dilemmas and positive approaches
key points from research –
Minimising the use of restraint in care homes
The literature review identified eight areas of restraint:
1. Manual restraint by staff (holding people down, stopping people from doing
something)
2. Arrangement of furniture (to keep people in bed, to stop people getting up or
creating an obstacle to part of the room)
3. Lap belts, wrist and vest restraints (inappropriate use of …)
4. Bedrails (inappropriate use of …)
5. Removal of walking aids or means to summon assistance (call bells)
6. Locked doors, intended to safeguard a particular person at risk, may thereby
unacceptably restrict the movement of all residents
7. Over-medication: psychotropic drugs, sleeping tablets etc
8. Staff instructions or institutional rules or practices may be seen as restraint, for
example rules about entering the kitchen, residents not being encouraged to
express freedom, choice and control.
Also there are DVDs available on the website about this subject

31. Limits of Section 5 Decisions
Restriction/ Restraint
Manner
Duration
Type
Deprivation of Liberty
Sometimes DoL is the only way to keep someone safe. Another way of thinking about it is protective care
Use the DVD to illustrate specific points ASK THE GROUP TO CONSIDER THE ABOVE IN RELATION TO VAL
Type – is it one that should be agreed by DoLS e.g. Medication, refusal to discharge, contact with family
Duration –for how long - Least amount of time
Manner – are the family etc in agreement?
Best Interest Decision -> -> -> -> -> -> -> -> -> Deprivation of Liberty Authorisation

32. The acid test It is also necessary in each case to consider:
–Whether the DOL lasts more than a negligible period of time
–Whether the person is able to give consent to an objective DOL
–Whether the objective DOL is imputable to the state (this criteria is satisfied even if the state has arranged a placement in a private hospital – LDV).
Note the Supreme Court was clear the state should err on the side of caution in deciding whether P is DOL’d

33. Your Rights if You are Arrested:
be told in a language you understand why you have been arrested and what charges you face
have a trial within a reasonable time
go to court to challenge your detention if you think it is unlawful
compensation if you have been unlawfully detained.

34. Your Rights if You are ‘Sectioned’:
Be told in a language you understand why you have been detained and what the treatment is for
Be told about any side-effects
Support from an Independent Mental Health Advocate
To appeal against your detention if you feel it is unlawful

35. Your Rights if You Are ‘Deprived’:
Formal process for deprivation of liberty
Representation/advocacy during assessment and if authorised (IMCA)
Opportunity for the Deprivation of Liberty to be reviewed and monitored
A Right of Appeal
– prior to this no external scrutiny

36. Deprivation of Liberty Safeguards
Allow the lawful deprivation of liberty of an
Individual (who lacks capacity) in a care home
or hospital
Must be necessary to prevent them coming to harm (not others)
Must be in their best interests (not the organisation’s)
Must be proportionate to the risk of harm
To keep safe who don’t have MH issues but are placing themselves at risk due to lack of capacity / understanding
Authorisation can be suspended for up to 28days to allow treatment under the MHA 36

37. Referral for DoL Authorisation
The managing authority
(the person or body with management responsibility for the
care home or hospital where the person is being, or may
be, deprived of their liberty)
must apply to the supervisory body
(the Local Authority)
for DoL authorisation where it appears that a person is, or
may be, deprived of their liberty.
The managing authority (the person or body with management responsibility for the care home or hospital where the person is being, or may be, deprived of their
liberty) must apply to the supervisory body (the PCT or local authority) for DL authorisation

38. Deprivation of Liberty
For those people who are not in a Care Home or Hospital but who are deprived of their liberty, a S.16 Personal Welfare Application to the Court of Protection will be required. (Includes 16 / 17 year olds)

39. Case Studies Is the person being deprived of their liberty?
Consider type of restraint, duration & manner of implementation.
Don’t forget that even those who are compliant may be deprived of their liberty
Is it legal?
It in their best interests?
Is it proportionate?
Is it the least restrictive option?
Just 4/5 so one per group as a summary
What Conditions should be made? DANNY I have taken this out as a standard point as I think that this is more about BIA and may be too much
If you want to add it as a group discussion point as extended learning then that’s fine
Activity

40. DLS Service DLS info line Tel : 01392 381676
(signed paper copy will need to follow)
DLS / MCA secure fax :
Safeguarding Adults Team, The Annexe, County Hall, Topsham Road, Exeter EX2 4QR. Tel:
– very happy to discuss dols issues before making referral. Or mca issues if manager can’t assist. 40

41. Summary
If a person lacks capacity to make a particular decision, a decision will need to be made in their best interest
When making decisions for others workers must be able to show what they did and why they did it
Restraint is permissible if necessary to prevent harm to the person, it is in the person’s best interests, it is proportionate to the likelihood and seriousness of that harm and there is no less restrictive alternative.
Deprivation of Liberty must be authorised by a Best Interest Assessor.
– summarise

42. Any Questions?
Questions, Feedback, Finish

43. Useful Websites
Password available from 43

44. Evaluation forms