1. BSMHFT MCA skills study day BSMHFT / MCA Project Team

2. Aims and objectives of the day Pilot session – following on from Level 1 MCA e-learning Your feedback is very important to evaluating the effectiveness of the session, especially the link between the skills study day and MCA e- learning The day is interactive and scenario based, therefore you will have the opportunity to apply your knowledge of the Mental Capacity Act in scenarios that are relevant to your role The purpose is to bridge the gap between theory and practice The session aims to build upon what you already know and are already doing well

3. every adult has the right to make their own decisions

4. Empowerment It’s all about the POWER in empowerment and who holds that power. Empowerment is supporting and enabling the people we work with to have as much control over the decision in their life as possible.

5. Care & Treatment decisions We will be supporting our patients with important decisions about their care, treatment and / or accommodation. What do out patients’ need in order to be able to make informed decisions about their care, treatment and / or accommodation?

6. …it’s all about Our patients need information about their options and the potential risks and benefits of each option and how it might affect them. Information is about effective communication and our ability to communicate important information to another human being How do we make our communication with our patients the most effective? How do we make sure the information we are giving our patients maximises the potential for them to make an informed decisions and be in control?

7. ? How do we know if our patients have understood?

8. Consent – how patients exercise their control To ensure our patients are giving informed consent, we need to ensure they understand the information about their care, treatment and / or accommodation. We need to ask them to relay information about their options and decision to us in their own words.

9. Implied vs. informed consent Difference between implied and informed consent: Having the capacity Understanding the information Compliance and capacity are not the same thing, just because a patient agrees or allows you to carry our a treatment, it doesn’t mean that they understand, have capacity and have given informed consent

10. ? What if a patient is unable to give informed consent, because of an impairment in the functioning of their mind or brain?

11. If the patient lacks capacity to consent: The decision is made on their behalf in their best interests Unless there is a valid and applicable advance decision to refuse treatment Decision must be the least restrictive option of the person’s rights and freedoms What happens to that POWER?

12. The 5 principles

13. The principles: 1. The assumption of capacity We always start by assuming everyone we work with has capacity to make their own decisions, until there is evidence to suggest otherwise This principle protects the right of adults to make their own decisions If we claim someone we are working with lacks capacity we must provide proof – this proof is the two stage assessment of capacity, it is up to us to prove the person lacks capacity it is not up to them to prove they have capacity Therefore we are required to gain our patient’s consent to provide care, treatment or support, we must respect the rights of our patient’s to refuse treatment if they have capacity to decide.

14. The principles: 2. Maximising capacity Before it can be claimed that someone lacks capacity everything practical must be done to enable them to make a decision for themselves Using different forms of communication / providing information in an accessible format Having a structured programme to improve the person’s capacity (i.e. through education) Treating any medical condition that may be impairing the person’s capacity In emergency and urgent situations we may not have time to provide additional support and information and may have to make an assessment of the patient’s capacity there and then

15. The principles: 3. People can make unwise decisions A person shouldn’t be treated as unable to make a decision, because the decision they make appears unwise to others We all have different values, wishes and beliefs We shouldn’t confuse an assessment of the person’s capacity with an assessment of what we believe is in their best interests, the assessment isn’t on the basis of whether the person choose what you think is the right choice Different people give different weight to different things

16. The principles: 4. Act in the best interests of people who lack capacity Follow the best interest checklist Best interests is a person centred process which should focus on the values, wishes and beliefs of the person and what they would consider if they were making a decision for themselves The exception to the best interests principle is if the person has made a valid advance decision to refuse treatment, or is being involved in research, as other safeguards apply in these circumstances If someone holds a valid and applicable Lasting Power of Attorney (LPA) they may be acting as the decision maker, however they must still act in the best interests of the person

17. The principles: 5. Act in the least restrictive way of people who lack capacity Before the decision is made consideration should be given to whether there is a less restrictive course of action Best interests decision making is restrictive as the person is no longer in control over the decision Can we avoid making a decision on the person’s behalf? Can we delay the decision so that the person can make it for themselves if they can regain capacity? Can we act in accordance with their views? How can we facilitate the person having the most amount of personal freedom?

18. The two stage assessment of capacity

19. The Act defines a lack of capacity as:  At the time a decision needs to be made, a person is unable to make a decision for themselves because of an impairment or a disturbance in the functioning of their mind or brain Under the Act capacity is always time and decision specific  some people may be unable to make one decision, but retain capacity for other decisions  Capacity can fluctuate and change over time Start with a blank canvass and the assumption that the person has capacity to make the decision Think about the information and any support the person will need to maximise the opportunity for them to make a decision for themselves

20. The two stage assessment of capacity 1.The diagnostic test Is there an impairment or a disturbance in the functioning in the mind or the brain, that is affecting the person’s ability to make a decision For example: mental illness, cognitive impairment such as dementia or Alzheimer’s disease, learning disability, any physical or medical conditions that cause confusion, drowsiness or loss of consciousness, delirium, acquired brain injury etc. 2.The functional test A person is unable to make a decision if they cannot do of any one or more of the following: i.Understand the information ii.Retain the information iii.Use and weigh up the information as part of the decision making process iv.Communicate their decision

21. The two stage assessment of capacity Remember stages 1 & 2 are part of the same assessment, you must be able to show that the person lacks capacity in the functional test, because of the impairment identified in the diagnostic test The outcome of the assessment is that the person will either:  Have capacity to make the decision - in which case we must obtain the patient’s consent and respect their decision Or  Lack capacity to make the decision, therefore they are unable to give informed consent and decisions are made in their best interests Consider if the person’s capacity is fluctuating and whether they could regain capacity in the future - if possible delay the decision until the person can make the decision themselves

22. The decision making tree

23. Decision that needs to be made, i.e. consenting to medical examination, observation, investigation or treatment etc. Information and support to enable patient to give informed consent Check patient has understood the information given to them Patient has capacity and therefore the right to make their own choices Need to obtain their consent to provide care and / or treatment Carry out time and decision specific, two stage assessment of capacity Patient lacks capacity to make the specific decision at the time it needs to be made and therefore is unable to give informed consent Check for any advance decision to refuse treatment or relevant Lasting Power of Attorney Decision made in patient’s best interests (follow best interest checklist) Valid Health and Welfare LPA will act on patient’s behalf / follow advance decision if valid and applicable Patient understands the decision There is concern about the patient understanding the decision Check that we have given sufficient information and support to the patient to enable them to make their own decision

24. Break

25. Planning ahead

26. Advance decisions to refuse treatment Enables someone aged 18 and over who has capacity at the time, to refuse a specific medical treatment for a time in the future when they may lack capacity If it is valid and applicable it has the same effect as a decision made by a person who has capacity There are special rules for Advance Decisions to refuse life sustaining treatment An advance decisions cannot be used to demand specific treatment, Cannot refuse basic shelter, food and warmth May not be applicable if care and treatment is being provided under Part IV of the MHA Information about Advance Decisions to Refuse Treatment: http://www.adrt.nhs.uk/ http://www.adrt.nhs.uk/

27. Lasting Power of Attorney (LPA) Enables someone aged 18 and over who has capacity at the time, to give someone they trust the legal authority to make decisions on their behalf, if they lack capacity for some reason in the future Must be registered with Office of the Public Guardian (OPG) Two types:  Property and Affairs  Personal Welfare You can contact the OPG to find out if there are any registered Powers of Attorney: https://www.gov.uk/find-someones-attorney-or-deputy https://www.gov.uk/find-someones-attorney-or-deputy You can contact the OPG if you have concerns about an attorney or deputy (as well as submitting a multi-agency safeguarding alert): https://www.gov.uk/report-concern-about-attorney-deputy https://www.gov.uk/report-concern-about-attorney-deputy Government Web Portal for an overview of Lasting Powers of Attorney: https://www.gov.uk/power-of-attorney/overview https://www.gov.uk/power-of-attorney/overview

28. Lasting Power of Attorney (LPA) Property and Affairs –  Can manage any aspect of the person’s finances and property  Can be used when the person still has capacity or when they lose capacity (this is up to the person registering the LPA)  The person making the LPA can add restrictions if there are certain decisions they don’t want their attorney to be able to make

29. Lasting Power of Attorney (LPA) Personal Welfare –  Can make decisions about the person’s accommodation, care and treatment  Can only be used when the person lacks capacity for the specific decision  The person making the LPA can add restrictions if there are certain decisions they don’t want their attorney to be able to make  Unless the person writing the LPA explicitly gives their attorney that authority the attorney cannot consent to or refuse life sustaining treatment or overrule a valid and applicable advance decision made by the person  May not be applicable if care and treatment is being provided under Part IV of the MHA

30. Advance care planning: Other advance expressions of wish… Living wills Advance directives About Me or other person centred planning tools Can specify the care, treatment, support and accommodation the person would like – not legally binding but can be very useful to ensure that the person receives person centred care, treatment and support. They can also help us to know what decision the person may have made if they had capacity, what things are important to them and what things they would consider in relation to the decisions in their lives.

31. Scenario 1 – Jane’s Story The assessment of Capacity

32. Break

33. Best Interests Checklist: Encourage participation Identify all the relevant circumstances Find out the person’s views Avoid discrimination Assess whether the person might regain capacity - consider whether the person is likely to regain capacity (e.g. after receiving medical treatment or further support). If so, can the decision wait until then, so the person can be in control? Decisions concerns life sustaining treatment Consult others – people who are important to the person, may need to involve an IMCA if person meets criteria Avoid restricting the person’s rights Take all this into account

34. Balance sheet approach to best interests Option: Positives / benefitsNegatives / risks A ‘Balance Sheet’ approach is a way of weighing up the different factors that are relevant in a particular decision. The approach is to complete a balance sheet of the positives and negatives for each of the options that are available to a person. A Balance Sheet is a way of making decisions that are open and transparent, by demonstrating how a decision was made and the factors that were considered. Look for any ‘magnetic factor’ that is capable of determining the outcome of a balancing process. A magnetic factor does not only mean that that element is given distinguished weight in the balance sheet but also ‘pulls’ the evaluation of all elements in a specific direction and thus determines the outcome of the decision.

35. Balance sheet approach to best interests In one case, the Court was asked to decide about the withdrawal of the artificial nutrition of a minimally conscious patient, the sanctity of life seems to have acquired such ‘magnetic importance’. The importance of preserving life was deemed to be the decisive factor which could not be outweighed by other considerations on the opposite side of the ‘balance sheet’ (e.g. past preferences of the patient, the wishes and feelings of relatives, etc.). This decision was based on a more objective assessment of what is in a person’s best interests. This has however recently towards a more substituted judgement test! In a more recent case, where again the Court was asked to decide about the withdrawal of the artificial nutrition of a minimally conscious patient, the facts of the case were different to that above. The Court held that the person’s views that they would abhor to be kept alive in such a state (even though there was no valid and applicable advance decision to refuse treatment), carried greater weight and it was decided that it was in that person’s best interests to withdraw the ANH. Where there is clear evidence of the person’s views, they must be given great respect.

36. Scenario 2 – Jane’s Story Best interests decision making

37. Evidencing and recording The MCA provides protection from liability (Chapter 6 of the MCA Code of Practice) where practitioners can demonstrate they followed the guidance in the Mental Capacity Act Code of Practice and have applied the statutory principles, consider evidencing the following: Remember best interests decision making is a person centred process, how have you ensured that the person who lacks capacity has remained at the very centre of the decision making process? Two stage assessment of capacity, with details of how you have reached the conclusion, why the person is unable to understand the information, retain it, or use it and weigh it up or is unable to communicate their decision? Remember the person must lack capacity because of an impairment or disturbance in the functioning of the mind or brain How have you given information to the person and supported them to maximise the potential they can make the decision for themselves Best interests decision making – how you involved the person in the decision making process? How have you involved others, including professionals and the family and friends of the person who lacks capacity? How have you made the decision? Can you evidence how you have arrived at the decision and considered all the different options? Does an IMCA or other form of advocacy need to be involved? Can you evidence that regard has been given to options that are lesser restrictive of the person’s rights and freedoms Is there a clear rationale as to why restrictions are in place? Is there a documented risk assessment and can you show the interventions are a proportionate response to the likelihood of harm and the seriousness of that harm Avoid tick box recording – show your working out – how have you come to that decision?

38. Resolving disputes Ideally we should be looking for local informal resolution methods – holding a case conference, taking on board the concerns of the party in dispute, ensuring the person and / or their family and friends have the support of an advocate, obtaining an independent 2 nd opinion Mediation services Complaints process is a way for the person, their family members or friends and / or advocates to formally challenge a particular decision or process Following complaints the Ombudsman service is a way of resolving disputes For serious decisions or disputes that cannot otherwise be resolved the Court of Protection can be approached A Deprivation of Liberty Safeguards Standard Authorisation does not itself resolve a dispute, although if a person is cared for, treated or accommodated against their or their family and / or friends wishes then a DoLS authorisation may be required as well as an application to the Court of Protection

39. Quick scenario – Mrs. Ambrose Resolving disputes

40. Lunch

41. After lunch quiz time!!! NAMING – can you name these animals? Name maximum number of words in one minute that begin with Z 1.Who is the King of Brunei? 2.Who is the President of Bangladesh? 3.Who is the Prime Minister of Jamaica? 4.Who is the Prime Minister of Pakistan?

42. After lunch quiz time!!! The answers Picture round: 1.Coatimundi 2.Tapir 3.Capybara Rulers round: 1.King of Brunei -Hassanal Bolkiah 2.President of Banglaedesh - Abdul Hamid 3.Prime Minister of Jamaica - Portia Simpson-Miller 4.The Prime Minister of Pakistan - Nawaz Sharif

43. After lunch quiz time!!! The answers Some words beginning with Z… zip, zap, zit, zoo zing, zinc, zoom, zone, zest, zeal, zero zombie, zebra, zygote, zodiac

44. After lunch quiz time!!! ‘If you judge a fish by its ability to climb a tree, it will live its whole life believing that it is stupid.’ - Albert Einstein

45. MCA / MHA interface Admission to hospital or treatment for a mental disorder Admission to hospital or treatment for physical illness Formal MHA admission Informal admissionMCA / DoLS For patients with and without capacity to consent, where person meets criteria for admission under the MHA Only for patients who have capacity to consent to the admission For patients not detained under MHA and who lack capacity to consent to an informal admission i.Person has capacity to consent to admission ii.Person lacks capacity to consent therefore decision made in their best interests Subject to certain conditions, Part 4 of the MHA allows doctors to give treatment for mental disorders without their consent – whether or not they have the capacity to give that consent Patient has capacity to consent to treatment, if the patient lacks capacity to consent to treatment, formal admission or MCA / DoLS may be required Treatment decisions made in patient’s best interests if they are found to lack capacity, if they have capacity informal or formal admission should be considered Patient has capacity to consent to or to refuse to consent to the treatment. Treatment decisions made in patient’s best interests if they are found to lack capacity, Where Part 4 of the MHA applies Advanced Decisions and LPAs are not applicable Valid and applicable Advance Decisions and Lasting Powers of Attorney for Personal Welfare (LPAs) apply Whilst Guardianship can ensure that a person is required to live in a certain place it does not authorised a deprivation of liberty, therefore Guardianship may not be appropriate if it requires a DoLS authorisation to enforce it Patient’s meeting the ‘Acid Test’

46. MCA / MHA interface AM v SLAM – admission to hospital Categorised 4 types of patient: i.Compliant capacitated ii.Compliant incapacitated iii.Non-compliant capacitated iv.Non-compliant incapacitated MCA does not apply to patients who have capacity (i & iii) (i) a compliant capacitated patient is likely to be able to be admitted informally (ii) compliant incapacitated patient may require MCA DoLS (iii) A non-compliant patient who has capacity to consent (i.e. they refuse to be admitted or demand to leave the hospital) can only be detained under the MHA The key is to look for the ‘least restrictive’ course of action DoLS does not authorise compulsory treatment (for either treatment for physical illness or mental disorder) only the admission to the place where treatment is being given – therefore it is unlikely to be effective for a non-compliant incapacitated patient (iv) who is anticipated to be non-compliant with treatment Capacity in this context was the capacity to agree: To admission To stay in hospital while the purpose of the admission is achieved To the circumstances relating to a possible deprivation of liberty

47. What is a deprivation of liberty? Arrested by the Police Detained under a section of the Mental Health Act The above is in accordance with a procedure proscribed by law A deprivation of liberty is unlawful unless it has been authorised by a procedure proscribed by law Different purposes

48. What is a deprivation of liberty? There must be the following three elements for a deprivation of liberty to be occurring: 1.An objective element of confinement in a particular restricted space for a not negligible length of time 2.A subjective element of a lack of consent, under the Mental Capacity Act this is because the person lacks capacity to consent to the care, treatment and / or accommodation that deprives them of their liberty 3.The deprivation of liberty must be one for which the state is responsible, through paying for, arranging and / or providing the care, treatment and / or accommodation that deprives the person of their liberty

49. Supreme Court ruling sought to clarify the definition of a deprivation of liberty. A person is held to be being deprived of their liberty if they are: Not free to leave It’s is not relevant to whether the person is being deprived of their liberty if the person has never tried or been prevented from leaving, what is relevant is whether the person would be prevented from leaving the institution if they did try to leave and Under continuous supervision and control Continuous supervision and control has not been defined, this does not necessarily mean that the person is supervised at all times of the day, significant periodic observation could qualify as continuous supervision and control, additionally this could be through the use of assistive technology, i.e. pressure pads, doors alarms etc. The ‘Acid Test’ Helpful briefing paper clarifying the meaning of ‘not free to leave’ and ‘continuous supervision and control’: http://www.mentalcapacitylawandpolicy.org.uk/wp-content/uploads/2014/04/CPA-briefing-DoLS-examples-May14.pdf

50. Deprivation of Liberty Deprivation of liberty Right to Liberty protected by Article 5 of the Human Rights Act 1998 Deprivation of liberty unlawful unless authorised by a process in law Deprivation of liberty will only be authorised if the person lacks capacity to consent to those arrangements, the deprivation is found to be in their best interests and it is a proportionate response to the likelihood of harm and the seriousness of that harm Hospitals and care homesCommunity Settings Registered under the Care Standards Act 2000, only applies to adults over 18 years old Person’s own home, supported living, sheltered or supported housing, or for applications relating to under 18s Authorised through the Deprivation of Liberty Safeguards (DoLS) 6 assessments carried out by Best Interests Assessor and Mental Health Section 12 Doctor Authorised by application to the Court of Protection Standard Authorisation granted if person meets qualifying criteria Court or Personal Welfare order granted if the person lacks capacity and the deprivation is in their best interests Authorisations can be granted for up to, but no longer than 12 months Relevant Person’s Representative (RPR) and / or Independent Mental Capacity Advocate (IMCA) involved Court order details review process Lady Hale described the “…right to physical liberty. This is not a right to do or to go where one pleases. It is a more focussed right, not to be deprived of that physical liberty. 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 even if such an opportunity became available, then it must also be a deprivation of the liberty of a disabled person.”

51. Deprivation of Liberty Deprivation of liberty Hospitals and care homes types of Authorisation Deprivation of liberty unlawful unless authorised by a process in law Urgent AuthorisationStandard Authorisation It is unlawful for a person to be deprived of their liberty without authorisation, therefore if the Managing Authority (the hospital or care home) believes they are currently depriving the person of their liberty, in their best interests, it gives itself that lawful authority by granting itself an Urgent Authorisation If a Standard Authorisation is requested without an Urgent Authorisation (because the person is not currently being deprived of their liberty, but is identified through care planning, as being at risk of deprivation in the very near future) the Supervisory Body has 21 calendar days within which to complete it’s assessment and decide whether to grant or not grant a Standard Authorisation Managing Authority gives itself the lawful authority to deprive the person of their liberty for calendar days (which can be extended up to 14 days) A Standard Authorisation is granted by the Supervisory Body (Dept. within Local Authority), after it has carried out its assessment(s) and if person meets the 6 qualifying criteria At the same time the Managing Authority requests a Standard Authorisation – the Supervisory Body (Dept. within Local Authority) will asses and grant a Standard Authorisation if the person meeting the 6 qualifying criteria (within the period of and before the Urgent Authorisation expires) Standard Authorisations can be granted for up to, but no longer than 12 months. Conditions can be attached (which can reduce the impact of an authorisation or work towards it’s end) For a Standard Authorisation to be granted: The patient must be being deprived of their liberty They must have been assessed to lack mental capacity to make a decision about the care, treatment and / or accommodation that deprives them of their liberty The deprivation must be found to be in their best interests, the arrangements must be a proportionate response to the likelihood of harm and the seriousness of that harm The patient has met all of the 6 qualifying criteria for the Deprivation of Liberty Safeguards.

52. The Deprivation of Liberty Safeguards (DoLS) Deprivation of liberty Safeguards eligibility criteria Assessment Age assessment This is to confirm whether the person is over 18 years old, DoLS applies to people aged 18+ No Refusals Assessment This is to see whether depriving the person of their liberty would conflict with other decision making authority, such as an advance decision to refuse treatment or someone who holds a Lasting Power of Attorney or a Court Appointed Deputy. Mental Capacity Assessment This is to see whether the person lacks the mental capacity to decide whether or not they should live or be accommodated in the care home or hospital for care and / or treatment. Mental health assessment This is to establish whether the person is suffering from a mental disorder under the definition of the Mental Health Act 1983. Eligibility Assessment This is to see whether depriving the person of their liberty would conflict with any part of the Mental Health Act 1983. Best interests assessment the purpose of this assessment is firstly to see whether they are, or will be being deprived of their liberty and if they are being deprived of their liberty whether it is in their best interests. A Standard Authorisation for deprivation of liberty authorises the deprivation for the purpose of providing care and / or treatment, it does not itself necessarily authorise providing care and / or treatment against the wishes of a person who lacks capacity. Serious treatment decisions that are carried out against the wishes of the person who lacks capacity may need to be decided by the Court of Protection.

53. The possible outcomes following the assessment process: 1.Standard Authorisation will be granted: the patient is being deprived of their liberty and they have met all the qualifying criteria, the assessments confirm that they lack mental capacity to consent to those arrangements and the deprivation of their liberty is in their best interests. This means that there is no other way to care for, treat or accommodate the patient without depriving them of their liberty. 2.Standard Authorisation will not be granted: the patient is being deprived of their liberty, but it is not in their best interests – this might be because there is an alternative that could prevent them from coming to harm that doesn’t deprive them of their liberty. The Supervisory Body will ask the Managing Authority to change what they are doing so the patient is no longer being deprived of their liberty. 3.Standard Authorisation is not needed: the patient is not being deprived of their liberty. 4.Standard Authorisation will not be granted: the patient is found to have capacity; therefore they have the right to decide upon their care, treatment and / or accommodation. 5.Standard Authorisation will not be granted: the patient does not meet the other qualifying criteria (the age, no refusals, eligibility and / or mental health assessments) then their care, treatment or accommodation may need to be reviewed or another process for authorising the deprivation of liberty may be required, i.e. by making an application to the Court of Protection. The Deprivation of Liberty Safeguards (DoLS) Potential outcomes of the assessment process:

54. Quick scenario – Bogdan MCA / MHA Interface

55. Break

56. Considering restricting choice: Think about the aim of the decision you are making, what are you trying to achieve? Have you got a robust capacity assessment? Is this decision and time specific? Can you show that the person lacks capacity because of an impairment in the functioning of the mind or brain? Consider all alternative courses of action Consider if it would aid the decision making process to split the decision into two or more parts: 1) is [the decision] in the person’s best interests? 2) is it in the person’s best interests for the decision to be carried out against the their wishes? Is the action you are taking or are proposing to take, a proportionate response to the likelihood of harm and the seriousness of that harm? Think about the actual practicalities of restricting the person’s choices, how will the person be prevented from exercising their choice (will there be any physical restraint or will the person’s freedom of movement be restricted)? Does the action you are taking deprive the person of their liberty or interfere with their other Human Rights? Do you need a DoLS authorisation or to apply to the Court of Protection?

57. Scenario 3 – Tina’s Story Best interests decision making - considering restrictions upon personal choice

58. Questions?

59. Visit our Web Resource page for useful Mental Capacity Act resources, information and best practice tools: http://bhamsouthcentralccg.nhs.uk/2012-02-08-14-59- 22/mental-capacity-act Mental Capacity Act Code of Practice: https://www.gov.uk/government/publications/mental- capacity-act-code-of-practice