1. Mental Capacity Act & Deprivation of Liberty
The Mental Capacity Act 2005 for England and Wales received Royal Assent on 7 April 2005 and came into force in Oct The Act generally only affects people aged 16 or over and provides a statutory framework to empower and protect people who may lack capacity to make some decisions for themselves.

2. What is the difference between the Mental Capacity Act 2007 and the Mental Health Act 1983?
The Mental Capacity Act is about people who are unable to make decisions for themselves and not about detention or compulsory treatment.

3. What does lacking mental capacity mean?
A person cannot do 1 or more of the following:
Understand information given to them
Retain information long enough to make decision
Weigh up information to make decision
Communicate their decision in any way.

4. What decisions can never be made on behalf of another person?
Marriage, divorce, sexual relationships, adoptions, voting

5. The code of practice for the MCA
As a professional/paid carer what do you have a legal duty to have regard to?
The code of practice for the MCA

6. The 5 key principles of the MCA:
1 Must assume person can make decisions unless otherwise proven
2 Must support people as much as possible to make their own decisions
3 People have the right to make unwise decisions
4 Anything done for person must be in their best interests if they don’t have mental capacity
5 Anything done for person without capacity must be least restrictive

7. That they have the capacity to make the decision
When a person in your care needs to make a decision there is always a first assumption?
That they have the capacity to make the decision

8. When should you assess a person’s capacity to make a decision?
decision specific i.e. each time a decision needs to be made

9. 2 Stage Test to finding if a person lacks capacity
Stage 1: Is there proof a person has an impairment of the mind?
e.g. diagnosis of dementia, significant learning disability, delirium, unconscious
Stage 2:Does the impairment mean they are unable to make the specific decision?
i.e. cannot do 1 or more of slide number 3

10. Four things you have to do, to aid a person make their own decisions
·  Give person all relevant info
·   Help communicate by using different forms
·   Offer decision at different times of day
Find out if there is any one else who can help communicate

11. Always Record: what the decision was why the decision was made
how the decision was made – who was involved and what information was used.

12. Who else should be involved in assessing capacity?
family, friends, carers, independent advocate

13. What is an Independent Mental Capacity Advocate (IMCA)?
a specific type of advocate who will support the person where there are no un paid carers, a life changing decision has to be made and will be provided by local authority

14. What is a lasting power of Attorney and what types are there?
A person designated by another who will make all decisions for them if they lack capacity in the future
Personal welfare
Property & affairs

15. What is an advanced decision?
This allows the person to state what types of treatment they want if they lack capacity in the future.

16. Additional Resources Available:
Code of Practice
Mental Capacity Act Training set for Hospitals
Mental Capacity Act Training set for Community Staff
Mental Capacity Act Training set Core Principles
Deprivation of Liberty Safeguards

17. Scenario
A young lady of 19 years old with a severe learning disability is leaving school. She can communicate with facial expressions, showing if she is happy, sad, in pain or angry. Her parents want her to attend a local day centre but the social worker has offered direct payments so she can have her own support worker. What do you think should happen next?

18. Scenario
You are caring for a person with a compulsion to eat constantly and everything they can get. They have diabetes and are severely obese. This persons doctor is very concerned for their immediate health. Can you stop them from eating?

19. Scenario
A student would like to complete a case study on one of the patients/service users who has dementia.
Should the student gain consent from the person?
How does that student gain their consent?

20. Deprivation of liberty
Bournewood safeguards

21. European Court of HR’s took Bournewood Hospital to trial:
Man with LD was taken to secure hospital “in his best interests”
Court found this was against Article 5 of Human Rights Act as he was deprived of liberty
Man was not detained under Mental health Act so therefore unlawful detention

22. Safeguards put into place
Amendment made to MC Act under Mental Health Act 2007
Came into force Oct 2008
Makes it unlawful to Deprive person of their liberty unless through the court of protection

23. If need to stop some one going out there are several options
If person hasn’t got mental capacity and is compliant and in their best interest:
Apply to Court of protection for Deprivation of liberty court order
If person cannot make own decision but isn’t compliant then can be sectioned under mental health act
Def of mental disorder now widened!

24. If apply for DOL: Inform LA may be problem
LA assess if there is a case
If case have 21 days to sort
6 Assessments must take place: eligibility (i.e. not MH), age (has to be over 18), mental capacity, mental health status, best interests, any lasting power of attorney – all done by specially trained people

25. Can only continue under MCA if:
Lack Capacity
Compliant
Danger to themselves
Danger to others goes under mental health act

26. Other issues: Can DOL for 7 days in an emergency
No definition of Deprivation of liberty
Can restrict liberty if in best interest without court order (can also restrain)
Assessments should look at: how often movements restricted? Can they get out if they ask? Are they watched continuously? Are they threatened by police if they do go out?

27. Other issues
Care Managers will have duty to report DOL of current s/u’s
Care Managers have to assess DOL of future s/u’s before accept into their care
DOL lasts up to 3 years but has to be reviewed regularly
Mangers have duty NOT to DOL where ever possible

28. Guardianship
Can be applied for by family & LA if person lacks capacity
Guardian can then authorise DOL but they will be taken to court if not in the persons best interests
NOK have no rights under MCA, only consultation