Lawtrack GPS trackers for people with mental incapacity Hilary Cragg Specialist Elderly & Vulnerable Client Advisor Twitter: @hilarycragg Blog: http://elderlylaw.wordpress.com 6 April 2017

The Mental Capacity Act – The Principles 1. A person must be assumed to have capacity unless it is established that he lacks capacity. 2. 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. 3. 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. 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.

The Test of Capacity Stage 1: Does the person have an impairment of, or disturbance in the function of their mind or brain? If the answer is yes go on to stage 2, if the answer is no, then they have capacity to make decisions. Stage 2: Does the impairment or disturbance mean that the person is unable to make a specific decision? This stage can only be taken if you have taken all practical steps to support the person in making this decision and this has failed. A person is considered to be unable to make a decision if they cannot on the balance of probabilities: 1. Understand information about the decision to be made. 2. Retain the information in their mind. 3. Weigh that information as part of the decision making process. 4. Communicate their decision (by talking, sign language or other means).

Best Interests a) Working out a person’s best interests cannot be based on their age, appearance, condition or behaviour. b) All relevant circumstances should be considered when working out someone’s best interests. c) Every effort should be made to encourage and enable the person who lacks capacity to take part in making the decisions. d) If there is a chance that the person will regain the capacity to make a particular decision, then it may be possible to put off the decision until later if it is not urgent. e) Special considerations apply to life sustaining treatment. f) The person’s past and present wishes and feeling, beliefs and values should be taken into account g) The views of other people who are close to the person who lacks capacity should be considered, as well as the views of an attorney or deputy.

Prime Minister’s Dementia Challenge Team – rural dementia awareness The lawfulness of “tagging” Dementia is not a criminal offence…..

Consultation Senior Judge Denzil Lush (Court of Protection – now retired) Clare de Than (Senior Lecturer, City Law School, London)

Ann Pascoe Dementia Friendly Communities, Scotland

The issues Capacity to consent or refuse Previously expressed views H&W Attorney / Deputy to consent Best Interests Decision (s5 MCA) Human Rights issues

Capacity to consent Since capacity is time and decision specific Does the person have the mental capacity to consent to wearing a GPS tracker? Weighing up the decision Understand the decision in the positive Understand the decision in the negative Understand if no decision is made

What is an unwise decision?

Where someone else would make a different choice! Unwise Decision Where someone else would make a different choice!

Previously expressed views For GPS trackers, not likely!

Attorney / Deputy Is there a Health & Welfare Attorney or Deputy that can consent to the use of a GPS tracker? Check the document! Check for Preferences / Instructions (Restrictions / Guidance) Is the attorney appointed jointly?

MCA Best Interests Decision “An act done in the care or treatment of another person” “That P lacks capacity in relation to the matter” and “That it will be in P’s best interests for this act to be done”

House of Lords Post Legislative Scrutiny of MCA The empowering ethos of the Act has not been widely implemented The evidence presented to us concerns the health and social care sectors principally. In those sectors the prevailing cultures of paternalism (in health) and risk-aversion (in social care) have prevented the Act from becoming widely known or embedded A fundamental change of attitudes among professionals is needed in order to move from protection and paternalism to enablement and empowerment

For THIS person – not a generic person! Best Interests For THIS person – not a generic person!

Human Rights issues Article 2 – Right to Life Article 8 – Right to private & family life Article 11 – Right to free association and assembly

A little background… Helmsdale – Remote and rural Scottish Highlands Latitude 58˚N Population 740 Nearest city 70 miles away

The results of the trial in Scotland One person with dementia did not have insight to understand wife’s concern when he was gone for long periods – she no longer worries and has been able to come off blood pressure medication. The other person with dementia had been too afraid to go out alone he now feels secure enough to go out without his wife, his independence has increased, giving him a new lease of life. Semantics are important – people don’t want to be tagged, they want freedom to roam. –

The Dartmoor Trial 10 November 2015

The Dartmoor Trial The lost person was found within 20 mins It would take around 1 hour from alerting the authorities

Thank you