1. Legal Issues

2. Aims
Case
MCA
Decision Making
Best interests
Other
MHA
DoLs

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

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

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

6. 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

7. 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

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

9. 2 Stage Test Impairment of mind / brain (temporary / permanent).
Impairment prevents a particular decision at the time it needs to be made.

10. 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

11. 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

12. 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

13. 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.

14. 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

15. 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

16. 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

17. 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

18. 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

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

20. 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

21. Exceptions
Advance decision
Research not covered here

22. 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

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

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

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

27. Legal Aspects
MENTAL HEALTH ACT

28. 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

29. 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.

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

31. 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

32. 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

33. 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

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

35. 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

36. 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

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

39. 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

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

41. 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

42. Lack capacity
Best interests
Less restrictive alternative

43. 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

44. 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

45. 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 TSO