MCA DoLS requirements for Managing Authorities

Human Rights Act 1998, Article 5 “1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law…” (followed by list of procedures and requirement that the person is informed promptly/entitlement to trial, etc.) “e. the lawful detention of persons … of unsound mind …” . “4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.” “5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.”

Supreme Court Judgement 2014 Acid test: 1. Continuous supervision and control 2. Not free to leave (Low threshold for both!) 3. Person lacks capacity to consent to accommodation for care and treatment (incl. confinement) (Assess capacity first!) 4. Imputable to the state

Mental Capacity Assessments (functional and diagnostic test) King’s College Hospital NHS Foundation Trust v C (‘Sparkly’ Case): Doctors wished to give C renal dialysis, outcome of no treatment: death. Treatment would probably save C’s life but most likely make her dependent on dialysis. C refused to consent to treatment and was supported by her family. Learning: Person needs to be viewed as a person, with a right to apply their own values, don’t make people fit into a legal framework Assessors must obtain all the relevant information and that they approach the person on their own terms. Causal connection

Best Interest Checklist (MCA 2005 Code of Practice, chapter 5) Encourage the person to take part, mention steps taken Identify all relevant circumstances Past and present wishes, feelings, beliefs, values, factors they would consider if they had capacity (advanced statements?) No assumptions based on the person's age, appearance, condition or behaviour Regain capacity? Life-sustaining treatment: not motivated by the desire to bring about the person's death Consult with others including anyone named by P; anyone engaged in caring for P; close friends, relatives , others with an interest in P's welfare; any attorney and Deputy.

… Best Interest Checklist Avoid restricting the person's rights by looking at the least restrictive option. Consider all of the above factors when you work out what is in the person’s best interest. Proportionality  

Covert Medication AG v BMBC & Anor (2016) Care plan involved covert administration of strong sedative medication (promethazine and then diazepam); no conditions relating to this medication in the care plan. Judge finds: The use of covert medication was not subject to proper reviews or safeguards. The best interest decision process did not involve any family member or RPR on behalf of AG nor allocated social worker. Judge mentions NICE guidelines (Prescriber, pharmacist and family/somebody representing the person to be involved in best interest decision.

Request for Authorisation (Forms 1 and 2) Form 1 guidance is available. Attention to detail as per your documented evidence. Signature date is when you sent the correctly completed form. Extension part for urgent requests. This means the person is covered for 7 more days. Send correct form (form 2 for ‘further requests’), preferably electronic requests, via secure email. With fax, pages need to be complete, in the right order, and for one service user. Check the form, you are accountable for the content.

Important Points to Consider - 1 Legislation encourages person-centred view of restrictions. DO NOT REQUEST AUTHORISATION FOR ALL RESIDENTS! Document: MCA, risk assessment, communication with SU, best interest decision. If lack of capacity assessed and confirmed, screen for acid test. Speak to family before making the application. Include email address in request, tell us about everybody interested in welfare. Review care plan to consider less restrictive options before applying for DoLS. Reduce restraint and any restriction on the person’s freedoms wherever possible.

Important Points to Consider - 2 Include DoLS authorisation in care plan and review regularly. Make sure you have all the necessary documents (e.g. for CQC, CoP). Contact the supervisory body if not. Work with the relevant person’s (paid) representative. Notify CQC of all applications to deprive someone of their liberty and their outcomes. Make sure your staff are aware of the legal requirements. Training needs to feed through to all staff.

Important Questions to Ask Yourself: Are you considering DoLS for new residents and are your carers reviewing residents regularly considering DoLS? Are there less restrictive options ? Have the circumstances changed since request or authorisation? Are conditions met? Are you informing person and family about your actions, are you working with RPRs and RPPRs? Is your paperwork ready for a CQC inspection? Where do you store your forms and the names of RPR/RPPR? Have you checked your expiry dates and informed interested persons/RPRs about requests for renewal of the DoLS? Have you told the supervisory body about any change in circumstances? E.g. death, move (applies to self-funders)

Houston We Have a Problem Any ideas, i.e. - Training for MA’s? - Responses that help with CQC? - Conflicting information which we have given? - How to find out what has changed in old requests.