1. Project title 2014 Law Commission’s Consultation Richard Copson 25 September 2015

2. Mental Capacity Act 2005 Applies to those 16 years or older: The presumption of capacity: A person (‘P’) is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success: A person is not to be treated as unable to make a decision merely because he makes an unwise decision: The principle of best interests: The principle of the least restrictive option: The deprivation of liberty safeguarding process. Mental Capacity Law

3. Mental Capacity Act 2005 Section 2: “…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 an impairment of, or a disturbance in the functioning of, the mind or brain”: It does not matter whether the impairment or disturbance is permanent or temporary: A lack of capacity cannot be established merely be reference to (a) a persons age or appearance, or (b) a condition of his, or an aspect of his behaviour which might lead others to make unjustified assumptions about his capacity. Mental Capacity Law

4. Mental Capacity Act 2005 Section 3: “…a person is unable to make a decision for himself if he is unable – a)to understand the information relevant to the decision: b)to retain that information: c)to use or weigh that information as part of the process of making the decision or d)to communicate his decision (whether by talking, using sign language or any other means). “A person is not regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances”. “The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision”. “The information relevant to a decision includes information about the reasonably foreseeable consequences of:- a)deciding one way or another, or b)failing to make the decision. Mental Capacity Law

5. Mental Capacity Act 2005 Section 4 – best interests “in determining… what is in a person’s best interests, the person making the determination must not make it merely on the basis of – a)the person’s age or appearance, or b)a condition of his, or an aspect of his behaviour might lead others to make unjustified assumptions about what might be addressed”. “the person making the determination must consider all the relevant circumstances and, in particular, take the following steps: “he must consider - a)whether it is likely that the person will at some time have capacity in relation to the matter in question, and b)if it appears likely that he will, when that is likely to be.” “he must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate as fully as possible in any act done for him and any decision affecting him”: Mental Capacity Law

6. Mental Capacity Act 2005 Section 4 – best interests “where the determination relates to life sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death”: “He must consider, so far as is reasonably ascertainable – a)the person’s past and present wishes and feelings: b)the beliefs and values that would be likely to influence his decision if he had capacity: c)the other factors that he would be likely to consider to do so”. “He must take in to account, if it is practical and appropriate to consult them, the views of: a)anyone named by the person as someone to be consulted on the matter: b)anyone engaged in caring for the person or interested in his welfare: c)any donee of a lasting power of attorney granted by the person, and d)any deputy appointed for the person by the court”. Acting on a reasonable belief that what is being done is in the best interests of the person concerned. Mental Capacity Law

7. Mental Capacity Act 2005 Section 17 – personal welfare (1)Powers to make decisions as respects P's personal welfare extend in particular to— (a)deciding where P is to live; (b)deciding what contact, if any, P is to have with any specified persons; (c)making an order prohibiting a named person from having contact with P; (d)giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P; (e)giving a direction that a person responsible for P's health care allow a different person to take over that responsibility. Mental Capacity Law

8. Mental Capacity Act 2005 Section 21A – deprivation of liberty Powers of the court in relation to Schedule A1 (1)This section applies if either of the following has been given under Schedule A1— (a)a standard authorisation; (b)an urgent authorisation. (2)Where a standard authorisation has been given, the court may determine any question relating to any of the following matters— (a)whether the relevant person meets one or more of the qualifying requirements; (b)the period during which the standard authorisation is to be in force; (c)the purpose for which the standard authorisation is given; (d)the conditions subject to which the standard authorisation is given. Mental Capacity Law

9. Mental Capacity Act 2005 Schedule A1 – authorisation for deprivation of liberty Three conditions for authorisation P is in hospital or a care home receiving treatment; A standard authorisation is in force; A standard or urgent authorisation relates to P in a hospital or care home. The role of the managing authority and supervisory body The roles of the relevant person’s representative and the Independent Mental Capacity Advocate. Mental Capacity Law

10. Mental Capacity Act 2005 Schedule A1– deprivation of liberty The qualifying requirements The age requirement; The mental health requirement; The mental capacity requirement; The best interest requirement; The eligibility requirement; The no refusals requirement. The role of the Court of Protection Challenge to a deprivation of liberty authorisation under Section 21A; The availability of non means tested legal aid; Representation and/or attendance of P; Articles 5 and 8 of the European Convention on Human Rights; Court authorisation for a deprivation; On-going review. Mental Capacity Law

11. Mental Capacity Act 2005 Code of Practice Chapter 2 –Statutory principles. Chapter 3 – Assistance in making decisions. Chapter 4 – Capacity. Chapter 5 – Best interests. Chapter 8 – The role of the Court of Protection. Chapter 10 – The role of Independent Mental Capacity Advocates Chapter 16 – Data protection and access to information. Mental Capacity Law

12. The Law Commission's Consultation – Proposals for Change A new system – Protective Care Principles of Protective Care Supportive Care Restrictive care and treatment Protective Care in hospital setting and palliative care Advocacy and the relevant person’s representative Mental Health Act interface Right to appeal Supportive decision making and best interests Advanced decision making Regulation and monitoring Other issues Mental Capacity Law

13. Principles of Protective Care Outcome driven approach Based upon the Mental Capacity Act 2005 Accessible and understandable system Compatibility with human rights Flexible and tailored scheme Mental Capacity Law

14. Supportive Care For people living in a care home, supported living or shared lives accommodation (or if a move to such accommodation being considered) Triggers local authority duties to assess, plan and facilitate appropriate care services Relevance of the Care Act 2014 and NHS healthcare Care planning safeguards Public law and the Mental Capacity Act overlap Clarity as to tenancies Mental Capacity Law

15. Restrictive Care and Treatment Replacement of DoLS Based on a safeguarding model Qualifying requirements: Continuous or complete supervision and control; The person is not free to leave; The person is not allowed, unaccompanied to leave premises or unable to leave due to physical impairment; The use of barriers to movement; Control of a person’s actions including a restraint; A carer and treatment to which the person objects; Significant restrictions upon person’s diet, clothing, contact etc. The role of the approval mental capacity professional with oversight, reviews and duty of care. Deprivation of liberty and domestic settings Mental Capacity Law

16. Protective Care in a hospital setting and palliative care Separate system for hospitals and palliative care The relevant conditions: A person lacks capacity to consent to proposed care or treatment; and There is a real risk that at sometime in the next 28 days a person will require care or treatment in his best interest that amounts to a deprivation of liberty; or A patient requires care or treatment in their best interests that amounts to a deprivation of liberty; and The deprivation of liberty is the most proportionate means of dealing with likelihood of harm and the likely seriousness of that harm. Mental Capacity Law

17. Advocacy, supportive decision making and the right to appeal The importance of independent advocacy and the ability for a person deprived of their liberty to challenge the deprivation The role of the Court of Protection or a new tribunal system The introduction of a formal legal process for supported decision making The importance of best interests and a person’s wishes and feelings – a question of priority? Mental Capacity Law

18. The Consultation – Summary Consultation closes 2 November 2015 http://www.lawcom.gov.uk/wp- content/uploads/2015/07/cp222_mental_capacity_summary.pdf The need for a clearer, more accessible and understandable system The reduction of bureaucracy Clarity as to the nature of care, settings and how a person is deprived of their liberty A structure for assistance, support, advocacy and appeal Continued compliance with the Mental Capacity Act 2005 and human rights A clear legal structure Mental Capacity Law

19. Richard Copson richard.copson@slatergordon.co.uk 0161 383 3709