Legal Issues

Aims Case MCA Decision Making Best interests Other MHA DoLs

Case Sarah 40 year lady Lived carer / partner Moderate LD & epilepsy Complex mental health issues Psychosis Vulnerability

Case Develops gangrenous R foot Admitted DGH Fluctuating consciousness Partner asked to consent to amputation

Discuss ? Views Who decides re capacity? How should capacity be determined? How are best interests decided? Where could they seek advice?

MENTAL CAPACITY ACT 2005 Legal concepts Based on common law principles Covers wide range of decisions New roles, bodies & powers Today will cover basic of medication / general treatment aspects & how they impact day to day

Statutory Principles Presumed capacity. Not be treated as incapacitous unless all practicable steps taken to improve decision making. Right to make unwise decision. Incapacity > treat best interests. Least restrictive - persons rights & freedom of action. 5 principles 2) Support needed, accessible info, different communication, treat mecial condition affect capacity. SALT, family /carer EASY READ LEAFLETS 5) Before the act is done or the decision is made regard must be had to whether the purpose for which is needed can be effectively achieved in a way that is less restrictive of persons rights & freedom of action Could a less restrictive alternative be made Need to consider best interests & least restrictive alternative whenever decision made for person who lacks C

Aspects to consider Timing /urgency of decision Communication Culture Advocate Carers

2 Stage Test Impairment of mind / brain (temporary / permanent). Impairment prevents a particular decision at the time it needs to be made.

Ability to make decision General understanding relevant information of decision why need to make it. Consequences of proposed action & of not doing it. Understand, retain, use & weigh. Communicate. Believe it SALT Aids to increase understanding & decision making Hold long enough to make decision - dementia Further Ax doctor / expert Retain ok use notebooks etc Some can weigh & understand but not use it eg A nervosa compulsion not too eat

Capacity – particular decision Understand (relevant information) Retain, Use & weigh. Communicate. Help with retaining – notebooks recorders Eating disorder understand re not eating but disorder compulsion means can’t eat so can’t use

Incapacitous “For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of impairment in the functioning of, the mind or brain.” Prove - balance of probability - lacks capacity. Document process. More likely than not to lack c Proof mental illness Dementia Ld Delirium Drugs alcohol

Who decides Final decision made by person intending to carry out action on behalf of someone - decision maker. Complex decision ? Need further assessment involving another doctor/ expert. Seek medical / legal advice decisions with significant impact or likely challenges.

Practical steps Understand nature & effect of decision Other - staff / records Family - not their view but what they think person would want confidentiality Explain information at right level Check understanding few minutes - rough explanation SALT MDT Need to ask pts permission revealing info to others. May still be ok to disclose if necessary

Professional / expert advice Complicated / serious consequences. Person challenges that decision. Family disagree. Conflict of interest between pt & assessor. Someone might challenge. Someone repeatedly makes decisions puts them at risk. Will

Challenge finding Ask assessor reasons & objective evidence Assessor must show followed principles of Mental Capacity Act Second opinion If disagreement cant be resolved > Court of Protection - rule

Best interests ‘ 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.’ Mental Capacity Act

Best Interests Checklist Person participate as much as possible. Identify all relevant circumstances Persons views - Past / present Beliefs & values Other factors they would have considered if deciding for self Avoid discrimination -age, appearance condition behaviour Independent mental capacity advocate

Best Interests Checklist… ?regain capacity Consult others - Confidentiality Carers Relatives Attorneys Court appointed deputy IMCA Least restrictive option Weigh all

Life sustaining decisions Not be motivated by desire to bring about death Not make assumptions on QoL Reasonable steps to prolong life Not obliged to if not in best interest of patient Court of protection if dispute

Exceptions Advance decision Research not covered here

Capacity Decision maker decides best interests Lasting Power of attorney / court appointed deputy decide their scope of authority / Make record of process How decision reached Who consulted Particular factors Reasons for reaching decision

Disputes Advocate 2nd opinion Best interest case conference Mediation Court of protection

Advocacy No close friends/ family Family disagree Doctors / family disagree Conflict of interest Use of restraint or restrictions Protection of vulnerable adult

Legal advice Difficult / potentially problematic cases Seek advice from MPS / MDU Trust legal advisors

Legal Aspects MENTAL HEALTH ACT

MHA Use as for general psychiatry e.g. depressive disorder etc LD Arrested / incomplete development of mind Significant impairment of intelligence + Significant social functioning Abnormally aggressive Behaviour or Seriously irresponsible conduct For purposes of the act ld defined as…which includes Although services often cut off at 70 not so for act. Clinical judgment after Ax Not section 2

LD - Act State of arrested / incomplete development of mind which includes significant impairment of intelligence & social functioning Present prior to adulthood Not from accident / injury / illness after normal development.

Significant impairment of IQ on basis of reliable & careful assessment Not defined by arbitrary cut off & Significant social impairment

Abnormally aggressive & irresponsible behaviour Application for detention for treatment / reception into guardianship on basis of LD without other mental disorder only be made associated with 1 or both of.. Abnormally aggressive behaviour Seriously irresponsible conduct Not defined Depend on nature of B & circumstances

Ax conduct abnormally aggressive Not defined Depend on nature of B & circumstances Risks safety for individual & others How persistent & severe it been ?trigger ?out of proportion Whether & to what degree > harm / distress to others / damage to property ? Likely to reoccur ? How common to popn generally

Ax seriously irresponsible conduct ? B suggest disregard /inadequate regard for its serious / dangerous consequences ? How recent ? Persistence ? Harm to others If not recent how likely to reoccur

DEPRIVATION OF LIBERTY SAFEGUARDS (DOLS) Legal aspects DEPRIVATION OF LIBERTY SAFEGUARDS (DOLS)

Background Bournewood case HL Autistic & profound LD Unable to consent to admission Admitted treated Restricted contact with carers Kept sedated Continuous supervision Would be assessed for detention if tried to leave

ECHR HL deprived of liberty Article 5 (1) of European convention of human rights Detention arbitrary not in accordance with law No procedure for him to challenge detention. Non compliant with Article 5(4) of European court of human rights

DoLS Safeguard for “Bournewood gap” Difference between restriction upon liberty or deprivation of liberty one of degree or intensity

Factors to consider re restraint / deprivation Restraint including sedation to admit person who is resisting admission Complete effective control care & movement significant periods Decided not to release into care of others or permitted to live elsewhere Refused request by carers for person to be discharged Unable to maintain social contacts Loses autonomy as under continuous supervision MCA protects prof & carers from liability with incapacitous person needing treatment including restraint where necessary

Authorizing Court of protection DoLS Necessary in order to give life - sustaining treatment while decision sought from court

Can request review any time Supervisory body PCT or Local authority authorize DoL adult in hospital / care home respectively Needs Representative Regular review Can request review any time

Lack capacity Best interests Less restrictive alternative

6 requirements Age - >18 Mental health must be suffering with mental disorder or LD ( section 12 approved or special experience in diagnosis & assessment of mental disorder Mental capacity – anyone mental health assessor / best interests assessor Best interest. Best interest checklist consult others – IMCA if no one

Best interest. Best interest checklist consult others – IMCA if no one Amhp /SW/ 1st level nurse/ OT/ psychologist – trainig Eligibility – ineligible if under MHA No refusals

References Mental Health Act Manual. Richard Jones eleventh edition Assessment of Mental capacity a practical guide for doctors & lawyers 3rd edition. BMA & law society Code of Practice – Mental Capacity Act 2005. TSO