MENTAL HEALTH ACT CAPACITY POLICY (MCA 2005)
Policy Statement
This Mental Capacity Act (MCA) policy is based on the principles of the MCA (2005). The MCA provides a statutory framework for people who lack capacity to make decisions, or who have capacity and want to prepare for a time when they may lack capacity in the future.
The policy will support our firm in first treating all of our service users on the basis that they are able to make their own decisions. Consistent with the legislation the service must make a decision for a person in their best interests, if there is evidence that they cannot make the decision (at the time it needs to be made) because of mental incapacity and it is appropriate within the decision making responsibilities of the MCA.
The Agency Responsibilities:
The agency and all Staff have a legal responsibility to have regard to the Code when doing things and making decisions to which the Mental Capacity Act applies. Consideration must always be given to whether their best interest can be served by a different approach which is less restrictive. All Managers and staff must ensure that clients are supported to make decisions for themselves and all possible steps should be taken to help them make these decisions.
The Care Manager and all others professionals involved in the client’s care will do a joint assessment. The Mental Capacity Act sets out a 2-stage test capacity.
Does the person have an impairment of their mind or brain, whether as a result of an illness, or external factors such as alcohol or drug use.
Does the impairment mean the person is unable to make a specific decision when they need to.
The agency will use a functional approach recognises that a decision making capacity can fluctuate and it is specific to the particular decision, this approach is issue specific and time specific. It has levels of complexity based on the type and urgency of the decision, and a person’s decision-making capacity can be impacted by many factors.
Background
The MCA was introduced into England and Wales in April 2007. It sets out who can make decisions, in which situations, and how they should go about it. It applies to all those involved in providing health and social care and is supported by a Code of Practice 2007 which gives guidance on its implementation and has statutory force. This includes doctors, nurses, allied health professionals and care staff.
The starting point of the Act is it should be assumed that an adult (aged 16 or over) has full legal capacity to make decisions for themselves (the right to autonomy) unless it can be shown that they lack capacity to make a decision for themselves at the time the decision needs to be made. This is known as the presumption of capacity. The Act also states that people must be given all appropriate help and support to enable them to make their own decisions or to maximise their participation in any decision-making process.
The Act sets out how capacity should be assessed and procedures for making decisions on behalf of people who lack mental capacity. ‘The underlying philosophy of the MCA is that any decision made, or action taken, on behalf of someone who lacks the capacity to make the decision or act for themselves must be made in their best interests’
Under this Act, the following are outlined as follows:
Who can make decisions for people who lack capacity
In which situations this can be done
How they should go about this
Our Aim
The aim of this policy is to ensure that throughout the work of Global Domiciliary Care Ltd, we will promote the welfare of children and adults in ensuring the principles of the MCA are embedded into practice. We aim to do this by ensuring that we comply with the MCA Code of Practice and upholding the rights of adults with care and support needs ensuring it is integral to all we do.
Global Domiciliary Care Ltd is committed to implementing this policy and the practices it sets out. The service will offer learning opportunities and make provision for appropriate MCA training to all staff and will also ensure the MCA Code of Practice is available to all staff. This policy will be made widely accessible to staff and reviewed on 30 June 2022.
This policy addresses the responsibilities of employees; it is the responsibility of the careprovider manager and the MCA Lead to brief staff on their responsibilities under the policy.
Breaches of policy
For employees, failure to adhere to the MCA Policy could lead to dismissal or constitute gross misconduct. For others (volunteers, supporters, donors, and partner organisations) their individual relationship with the Global Domiciliary Care Ltd may be terminated.
We are also aware that as registered service providers, failure to ensure adherence to the MCA Policy could lead to breach of contract and / or breach of CQC standards (Regulation 9 Person-centred care).
Five Principles of Mental Capacity Act:
Global Domiciliary CareLtd recognises the responsibility to ensure adherence to the MCA and to support adults who are not able to make their own decisions, to support them to plan ahead, if they wish for a time when they may lose capacity. The Act is intended to assist and support people who may lack capacity and to discourage anyone who is involved in caring for someone who lacks capacity from being overly restrictive or controlling.
The Act also aims to balance an individual’s right to make decisions for themselves with their right to be protected from harm if they lack capacity to make decisions to protect themselves.
Joint working and effective collaboration are essential to promote the rights and freedom of individuals. This is supported by:
The commitment of all staff and clear lines of accountability, to comply with the principles of the MCA and the Code of Practice, which protects them from liability
Practice developments that take account of the need for staff training and continuing professional development so that staff have an understanding of their roles and responsibilities and those of other professionals and organisations in relation to MCA
Building confidence among staff regarding how and when to assess and individual’s mental capacity, and how to make a best interests decision when necessary
The five statutory principles as set out in the MCA are:
Principle 1: A person must be assumed to have capacity unless it is established that they lack capacity.
Every adult has a right to make their own decisions and they must be assumed to have capacityto do so unless it is proven otherwise. Practitioners cannot assume that someone cannot make a decision for themselves just because they have a particular illness or disability, either physical or mental. For example, if an individual has experienced a stroke, which has caused impairment to their ability to communicate. It is not acceptable to assume that this means that they lack capacity to make a decision to make a decision, even if they might have some difficulties in communicating it. Also in relation to this principle, an assessment must only be sought if there is evidence to suggest that capacity might be an issue in terms of the decision that is being made.
When Principle 1 might be applied
When the individual’s behaviour or circumstances cause doubt about their capacity to make a decision.
When someone is concerned about an individual’s capacity.
When the individual has a previous diagnosis of an impairment that might impact their capacity to make some decisions.
A person is not to be treated as unable to decide unless all practicable steps to help him to do so have been taken without success. Individuals must retain the right to make decisions, which others may deem eccentric or unwise. Such a decision must not be used as a reason to establish lack of capacity, as each person has their own beliefs and preferences and these may be in complete contrast to those who would otherwise determine them as lacking in capacity.
Principle 3 enables a person’s culture and individual characteristics to be taken into account when they are making decisions and it is clear that any decision that an individual makes, where they have capacity to do so, must be respected no matter how odd it may seem.
The Principle also enables health and social care professionals to consider if the individual has capacity but also to determine if the individual is under pressure from someone else to make a decision. For example, if an individual suddenly decided to change their will and leave all of their money to a person they almost never see but who has recently been to visit them, there may be cause for concern that the individual has been coerced into the decision.
However, it must be taken into account that when an individual repeatedly makes unwise decisions which leave them at significant risk or when they make a decision that is out of character, this should warrant further investigation.
A person is not to be treated as unable to decide merely because he makes an unwise decisionAll individuals must be given every opportunity in terms of support and information before it is decided that they cannot decide for themselves. This means that every effort to encourage and support people to make decisions for themselves must be given, for example giving information in an alternative format to make it easier to understand – this is often referred to as ‘maximizing capacity’.
Other examples of ways in which capacity might be maximized include:
Use of a signed language.
Use of an interpreter (for verbal information).
Use of a translator (for written information).
Use of communication aids such as picture cards.
Using an alternative communication format such as writing instead of speaking.
Meeting with an individual on several different occasions to assess or review capacity.
Changing a meeting’s location to one that is more suited to the individual’s needs.
Changing a meeting’s time to one that is more suited to the individual’s needs.
If a lack of capacity is established then the individual must still be involved, as far as possible, in any decision that are made on their behalf.
This will apply when:
Alternative forms of communication to ensure understanding have not been successful.
Consistent attempts to change locations or times of a meeting have not been successful.
Several meetings have all concluded that the individual’s level of capacity remains the same and that they are unable to make decisions on their own behalf.
When Principle -3 might be applied
The following are examples of decisions that must be respected in line with this Principle, as long as the individual retains capacity:
When an individual bases a decision on their religious beliefs, such as leaving money to a church or charity.
When an individual decides to wear clothing that might be considered socially inappropriate.
When an individual decides to stop taking some of their medication, which they do not believe is benefitting them.
When an individual takes up a hobby or activity that others believe is too risky for them.Principle 2 – The right to be supported when making decisions
All individuals must be given every opportunity in terms of support and information before it is decided that they cannot decide for themselves. This means that every effort to encourage and support people to make decisions for themselves must be given, for example giving information in an alternative format to make it easier to understand – this is often referred to as ‘maximizing capacity’.
Other examples of ways in which capacity might be maximized include:
Use of a signed language.
Use of an interpreter (for verbal information).
Use of a translator (for written information).
Use of communication aids such as picture cards.
Using an alternative communication format such as writing instead of speaking.∙ Meeting with an individual on several different occasions to assess or review capacity.∙ Changing a meeting’s location to one that is more suited to the individual’s needs.∙ Changing a meeting’s time to one that is more suited to the individual’s needs.
When Principle 2 might be applied
If a lack of capacity is established then the individual must still be involved, as far as possible, in any decision that are made on their behalf.
This will apply when:
Alternative forms of communication to ensure understanding have not been successful.
Consistent attempts to change locations or times of a meeting have not been successful.
Several meetings have all concluded that the individual’s level of capacity remains the same and that they are unable to make decisions on their own behalf of the client.
4. An act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. Decisions can only be made on behalf of an individual once it has been completely established that they lack capacity.
Any decision made on behalf of individuals who lack capacity must be done in their best interests. This means that what they would decide, if they had the capacity to do so should be the basis of the decision that is made. This can be very complex and depends on many factors that will maintain the individual’s wellbeing in a holistic manner, which means that all of their needs are taken into account.
It must also take into account the individual’s past wishes or actions, which includes a form of advance statement or directive that has been put into place.
When Principle 4 might be applied:
When it has been full established that the individual lacks capacity.
When it has been determined what is in the individual’s best interests.∙ When previous wishes, wants and factors relating to wellbeing have been established.
Principle 5- Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. Any decision made on behalf of individuals who lack capacity must be done in a manner which is least restrictive to their freedom and their basic rights. Any intervention should be assessed given the circumstances of that particular case.
The decision make must, according to this Principle, consider all options available to them and always consider if there is a less restrictive option to the one proposed.
Sometimes, it is determined that what is in an individual’s best interests is not necessarily that which is the least restrictive. In such instances, consideration must be given to amendment to forms of care and support which are less restrictive but which do not put the individual at risk and which still ensure that their needs are met.
When Principle 5 might be applied
When all options have been considered and the least restrictive one chosen.∙ When alternate forms of care have been considered if the least restrictive option may not be in the individual’s best interests for example if a person cannot go outside alone but to restrict them from doing this would be in deprivation of their liberty.
What is mental capacity?
A person with mental capacity means that he or she is able to make their own decisions by weighing up relevant information. All staff should always start from the assumption that the person has the capacity to make the decision in question (principle 1).
Staff must also be able to show that they have made every effort to encourage and support the person to make the decision themselves.
Staff must also remember that if a person makes a decision which is considered eccentric or unwise, this does not necessarily mean that the person lacks the capacity to make the decision.
Under the MCA, staff are required to make an assessment of capacity before carrying out any care or treatment if they have reasonable belief someone lacks capacity – the more serious the decision, the more formal the assessment of capacity needs to be.
When should capacity be assessed?
Capacity is decision and time specific, assessing capacity refers to assessing a person’s ability to make a particular decision at a particular moment in time, rather than being an overarching judgement about an individual’s ability to make decisions in general.
Staff cannot decide that someone lacks capacity based upon age, appearance, condition or behavior alone.
The MCA 2005 defines lack of capacity as:
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.
The Act assumes that a person has capacity until it is proven otherwise. Capacity should be assessed when a person’s mental capacity to consent to their treatment or care is in doubt. Capacity may be called into question for a number of reasons including:
∙ An individual’s behaviour or circumstances.
∙ Where concern about capacity has been raised by someone.
∙ Where a person has been previously diagnosed with an impairment or disturbance that affects the way their mind or brain works.
A previous mental capacity assessment has shown lack of capacity to make a decision
When Principle 5 might be applied
∙ When all options have been considered and the least restrictive one chosen.∙ When alternate forms of care have been considered if the least restrictive option may not be in the individual’s best interests for example if a person cannot go outside alone but to restrict them from doing this would be in deprivation of their liberty.
Global Domiciliary Care Ltd will make such assessment at the point of accepting the package and taking on the service user. Capacity will be assessed by the referring agency and the Registered Care Manager and her Assistant Care Manager and a professional and family member or any advocate who is working in the best interest of the individual will be involved in another detailed assessment of the individual, and the risk assessment will be done at this stage prior to a support plan being drafted and agreed with the individual before care commences.
Consent and Capacity
You must have reasonable belief that the individual lacks mental capacity to have legal protection under the MCA 2005 for making decisions on a person’s behalf. To have reasonable belief, you must take certain steps to establish that the person lacks mental capacity to make a decision or consent to an act at the time the decision or consent is needed.
You must establish and be able to show that the decision or act is in the person’s best interests. A mental capacity assessment must be completed using the two and four stage tests outlined in the introduction and demonstrated in the attached table.
A mental capacity assessment helps demonstrate that on a balance of probabilities it is more likely than not that the person lacks capacity.
You should be able to show in your records why you have come to your conclusion that capacity is either present or lacking for the decision.
Not all decisions will need a formal mental capacity assessment and the outcome can be recorded within the service user records and care plan. Consent for the person’s care plan will cover many day to day decisions, but there will be times when a formal mental capacity assessment should be undertaken.
Formal mental capacity assessments to assess the mental capacity for an individual to make a particular decision at a particular time should be kept in the patient care records.
If the decision to be made is complex or may have serious consequences or, if there is disagreement about a person’s capacity, or a safeguarding issue, then there may be times when you need to involve other professionals and colleagues in carrying out a mental capacity assessment and/or best interest’s decision.
Occasionally an individual may object to having a mental capacity assessment. Where this happens it is good practice to explain what the mental capacity assessment is and how it will help to protect their rights. There should be no undue pressure for the person to have the assessment, as a person has the right to refuse.
If it is clear that the person lacks the mental capacity to consent to the assessment and there are concerns or risks about the person’s care and treatment then the assessment can usually go ahead as long the assessment is in the person’s best interests.
The two stage functional test to assess capacity
In order to decide whether an individual has the capacity to make a particular decision staff must answer two questions:
Stage 1. Is there an impairment of, or disturbance in the functioning of a person's mind or brain? This could be due to long-term conditions such as mental illness, dementia, or learning disability, or more temporary states such as confusion, unconsciousness, or the effects of drugs or alcohol.
Stage 2. Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?
The MCA states that a person is unable to make their own decision if they cannot do one or more of the following four things:
Understand information given to them.
Retain that information long enough to be able to make the decision.
Weigh up the information available to make the decision .
Communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.
Every effort should be made to find ways of communicating with someone before deciding that they lack capacity to make a decision based solely on their inability to communicate. Also, you will need to involve family, friends, carers or other professionals and identify when the person is at their best before undertaking the capacity assessment.
Variations in capacity
The MCA covers all types of decisions, big and small. This may be from the day-to-day, such as what to wear or eat, through to more serious or complex decisions, about, for example, where to live, whether to have surgery or how to manage finances or property.
The MCA applies to situations where someone is unable to make a particular decision at a particular time because of the way their mind or brain is affected. When suffering from depression, infection or suffering from delirium, an individual may be unable to make a decision, but when recovered they can.
People should receive support to help them make their own decisions, before it is concluded that they may lack capacity to consent to a particular decision. It is important to take all possible steps to help them reach a decision themselves.
Best interest’s principle
It is important for the application of the MCA, that staff of CIHC Ltd have a fundamental understanding of the best interest’s principle.
If a person has been assessed as lacking capacity then any action taken, or any decision made for, or on behalf of that person, must be made in his or her best interests (principle 4). The person who has to make the decision is known as the ‘decision maker’ and normally will be the carer responsible for the day-to-day care, or a professional such as a doctor, nurse or social worker where decisions about treatment, care arrangements or accommodation need to be made. It is imperative that the staff member identifies and alerts the correct decision maker at the start of the process.
What is ‘best interests’?
The MCA provides a non-exhaustive checklist of factors that decision-makers must work through in deciding what is in a person’s best interests and achieve least restrictive practice (principle 5).
Some of the factors to take into consideration are:
Do not discriminate or make assumptions about someone’s best interests merely on the basis of the person’s age or appearance, condition or any aspect their behaviour.
Take into account all relevant circumstances
If faced with a particularly difficult or contentious decision, it is recommended that practitioners adopt a ‘balance sheet’ approach, see Appendix D
Will the person regain capacity? If so, can the decision wait.
Involve the individual as fully as possible.
Take into account the individual’s past and present wishes and feelings, and any beliefs and values likely to have a bearing on the decision .
Consult as far and as widely as possible.
It is vital that staff record the best interest’s decision. Not only is this good professional practice but given the evidence-based approach required by the MCA, you will have an objective record should the decision or decision-making processes later be challenged.
Dealing with disputes and disagreements
There may be occasions when someone may challenge the results of an assessment of capacity. In this situation it is important to raise the matter with the person who carried out the capacity assessment. If the challenge comes from the person who is said to lack capacity, they should be referred to an advocate if they are befriended or may need support from family or friends.
If you believe the capacity test findings are not accurate, provide reasons why you believe the assessment not to be accurate along with objective evidence to support that belief.
If the dispute cannot be resolved a second opinion may be required from an independent professional or another expert in assessing capacity. If the disagreement can still not be resolved, the person who is challenging the assessment may be able to apply to the Court of Protection.
Important Aspects of the MCA
Lasting Power of Attorney (LPA)
There are 2 types of LPA:
Health and personal welfare; and
Property and financial affairs
A person can choose to make one type or both types. The MCA allows a person aged 18 and over (the donor), who has capacity to make this decision, to appoint attorneys to act on their behalf should they lose mental capacity in the future. The Property and Affairs LPA replaces the previous Enduring Power of Attorney (EPA).
Lasting power of attorney (LPA) is a legal document that lets the ‘donor’ appoint one or more people (known as ‘attorneys’) to help them make decisions or to make decisions on their behalf. This gives them more control over what happens to them if they have an accident or an illness and can’t make their own decisions if they ‘lack’ mental capacity.
A health and personal welfare LPA allows the attorney to make specific decisions when the person is no longer able to consent to treatment or care. The attorney is able to make decisions about day to day care, consenting or refusing medical treatments, moving accommodation, refusing life sustaining treatment, assessments for provision of community services, social activities and more.
A property and affairs LPA allows the attorney to make specified financial decisions when the person lacks capacity, but unlike a health and personal welfare LPA, a property and affairs LPA can be used even if the person has capacity (with permission).
All lasting power of attorneys should be checked either with the Office of the Public Guardian, or the attorney can be asked to provide a copy. This is to ensure that it has been registered and valid and to clarify what decisions the attorney is allowed to make under the terms of the LPA. For example, they may have been given authority to make choices about accommodation but not to refuse treatments.
A lasting power of attorney must be registered with the Office of the Public Guardian before it is valid and can only be used once the person who made it no longer has capacity. Records must reflect whether an LPA has been registered and what decisions are given to the attorney.
Court Appointed Deputies
The MCA (2005) provides for a system of court appointed deputies who are able to make decisions on welfare, healthcare, and financial matters as authorised by the Court of Protection. They are not able to refuse or consent to life sustaining treatment. A deputy will only be appointed if the person lacks capacity to make an LPA and it is thought necessary or beneficial to appoint an individual to make ongoing decisions on their behalf. A deputy may be appointed for personal welfare matters, or property and affairs, or both.
Court of Protection
The Court of Protection is a superior court of record, it is able to establish precedent, set examples for future cases and build up expertise in all issues related to lack of mental capacity. It has the same powers, rights, privileges and authority as the High Court. When reaching any decision, the court must apply all the statutory principles set out in section 1 of the Act. It must make a decision in the best interests of the person who lacks capacity to make the specific decision. There will usually be a fee for applications to the court. The legal body that oversees the operation of the Mental Capacity Act (2005) Situations that must always be referred to the courts include:
sterilisation for contraceptive purposes
donation of organs or regeneration tissue, such as bone marrow
withdrawal of nutrition and hydration from a person who’s in a permanent vegetative state or minimally conscious state.
If a person knows their capacity to consent may be affected in the future, they can choose to draw up a legally binding advance decision. Also known as a living will. This sets out the procedures and the treatment that a person refuses to undergo.
4.4 Advance Decision to Refuse Treatment (ADRT)
The MCA (2005) creates ways for people 18 and over, and to be able to make a decision in advance to refuse treatment if they should lack capacity in the future. An advance decision to refuse treatment that is not life sustaining does not need to be in writing but the person must ensure the relevant professionals know what treatment is being refused.
For an advance decision to refuse treatment to be valid, health professionals must try to establish if:
The person has done anything since making the advance decision that would clearly suggest that they no longer agree with the advance decision.
The person has withdrawn the advance decision .
Power has been given to an attorney to make the same treatment decision as covered in the advance decision.
The person would have changed their mind if they had known more about the current circumstances.
For an advance decision to refuse life sustaining treatment to apply, the person must no longer have capacity to make the decision for themselves. The advance decision must be in writing, stating exactly what treatment is to be refused and set out the circumstances
when the refusal should apply, even if there is a risk to life. The advance decision must be signed by the person refusing the treatment with the signature witnessed and signed in the presence of the patient.
The Court of Protection may be asked to decide whether the advance decision exists, is valid or applicable to the current situation, if the advance decision is called into question. While a decision is being made by the court, life sustaining treatment or treatment necessary to prevent a patient’s deterioration may still be provided. Advance decisions can only be made to refuse treatment; not to demand a treatment choice.
4.5 Independent Mental Capacity Advocate (IMCA)
The aim of the IMCA service is to provide independent safeguards for people who lack capacity to make certain important decisions and, at the time such decisions need to be made, have no-one else (other than paid staff) to support or represent them or be consulted.
IMCAs must be independent and then consulted, for people lacking capacity that have no-one else to support them whenever:
An NHS body is proposing to provide serious medical treatment.
An NHS body or Local Authority is proposing to arrange accommodation (or a change of accommodation) in a hospital or a care home.
The person will stay in hospital longer than 28 days, or they will stay in the care home for more than eight weeks.
The Act states that an IMCA may be instructed to support someone who lacks capacity to make decisions concerning care reviews, where no-one else is available to be consulted and adult protection cases, whether or not family, friends or others are involved. The policy in Lancashire is that an IMCA should be instructed under these circumstances.
Mental capacity and young people
Many aspects of the Mental Capacity Act apply to people aged 16 and over who may lack capacity to make a specific decision.
However, the legislative framework for those cared for under The Children’s Act 1989 will continue to apply until they are discharged from such care proceedings.
There are two elements of the Act than can be applied to young people under the age of 16: Decisions about property or finance made by the Court of Protection, and offences of ill treatment and wilful neglect.
For young people aged 16 and 17, the capacity assessment or Gillick competency test must be used to determine whether the health or social care decision should be subject to the processes and provisions outlined within the Act. Depending upon the decision staff may then use the Children Act 1989 or the Mental Capacity Act to proceed with making or proposing a decision for the young person lacking capacity. An adult with parental responsibility may consent to a proposed decision on behalf of a young person who lacks capacity or Gillick competency. However, due to the interface between the MCA, the Children Act, and the concept of Gillick competence for complex cases it may be necessary to seek guidance from the local identified Safeguarding MCA lead, and/ or legal advice.
Where staff can demonstrate that they have acted in accordance with the Mental Capacity Act their actions will be protected from liability whether or not a person with parental responsibility consents. A young person’s views on whether their parents should be consulted during the best interest’s process should be considered.
Where staff choose to proceed with consent from someone with parental responsibility, they must inform the parent that they are required to act in the young person’s best interests as outlined within the Act.
For those services working with young people who have a permanent impairment or disturbance in the functioning of the mind or brain, supporting families in becoming familiar with the powers and provisions within the Act is an essential part of transition work. Families may choose to approach the Court to become Court Appointed Deputy for welfare decisions or property and finance decisions. Information should be provided to assist with such applications.
Restraint
The Act defines use of restraint as the use of force-or threaten to use force-to make someone do something they are resisting, or restrict a person’s freedom of movement, whether they are resisting or not. Staff is aware that Client’s get protection from liability, when someone lacks capacity to consent, by being clear that they are making the decisions within the principles of the Mental Capacity Act. The MCA explains that this means when we think we might have to restrain someone, in their best. Alongside the rest of the best interests’ checklist, there are two extra conditions that staff must be aware of for the restraint to be lawful, so staff can have protection from liability.
The Act only provides protection from liability in using restraint under certain conditions:
The person taking action must reasonably believe that restraint is necessary to prevent harm to the person who lacks capacity.
The amount or type of restraint used and the amount of time it lasts must be a proportionate response to the likelihood of serious harm.
Less restrictive options should always be considered before restraint.
The Act describes a proportionate response as one that means using the least intrusive type and minimum amount of restraint to achieve a specific outcome
The Act only gives limited liability for use of restraint. Actions may not be lawful where there is an inappropriate use of restraint or where a person who lacks mental capacity is deprived of their liberty without appropriate authorisation.
Principle of Deprivation of Liberty and The Supreme Court Judgement:
P v Cheshire West 2014
The Act recognises that in some cases there is no other way to provide care and treatment other than by depriving a person of their liberty.
The Supreme Court Ruling introduced an acid test for determining whether an individual was being deprived of their liberty.
There are two key questions to consider regarding the ‘acid test’
Is the person subject to continuous supervision and control?
Is the person free to leave?
The focus is not on the person’s ability to express a desire to leave, but on what those with control over their care arrangements would do if they sought to leave.
For a person to be deprived of their liberty, they must be subject both to continuous supervision and control and not be free to leave.
Following the ruling in the above precedent case, it is NOT relevant if the individual doesn’t object or complies with the deprivation, the relative normality of the placement or the reason or purpose behind the placement is NOT relevant.
Significantly the judgement highlighted that deprivation of liberty occurs in a domestic or supported living arrangements as well as hospitals and care homes.
The Act provides a legal framework and two distinct routes for authorising deprivation of liberty:
The Deprivation of Liberty Safeguards (DoLS) for people in hospitals and care homes and.
The Court of Protection for people living in all other communitysettings.
Relevant person’s representative (RPR)
The relevant person’s representative RPR is appointed by the supervisory body for each person who has a standard DoLS authorisation. The role of this person is to maintain contact with the person subject to DoLS and represent and support them in any matters relating to the deprivation. It is important that the RPR is informed of:
The effect of the authorisation
Their right to request a review
Their right to make a complaint and the procedure for doing so
Their right to apply to the Court of Protection and their right to request an IMCA.
Deprivation of Liberty Court of Protection applications –
Community settings other than hospitals and care homes
Where there are deprivations of liberty in a domiciliary setting the commissioner of the care package is responsible for ensuring that the case is referred to the Court of Protection (COP). The commissioner is usually the Local Authority (LA) or the Clinical Commissioning Group (CCG).
Global Domiciliary Care LTDLimited staff and managers are responsible for identifying any of our service users who they believe meets the Test for deprivation of liberty, and for referring them to the Local Authority.
The service will ensure that they have assessed the person's capacity to consent to all the restrictions in place, and that these are in the person's best interests to protect them from harm. They should reduce or end any restrictions that are not in best interests and assist the LA as maybe required.
If the LA or Commissioning Support Unit (CSU) is acting on behalf of the CCG to progress with the COP application, the service will support the process by providing all relevant documentation, including an up to date and signed copy of the care plan.
If the judge approves the application and care plan, a time limited Order will be issued authorising the deprivation of liberty (but for no longer than 12 months). The COP will appoint a representative (usually a family member) to oversee the care plan and to visit the person regularly. The COP must review the Order via a new application submitted 4 weeks before the end date, or sooner if the restrictions increase.
A COP Order is a confidential document which can only be shared with those named on the Order itself.
STAFF GUIDE
5 Principles: Apply them in practice
Assume the person has capacity unless proven otherwise
Enable capacity by assisting the person when making a decision (use visual aids/ written words/ interpreters etc. as appropriate)
If a person with capacity makes an unwise or eccentric decision this must be respected
If a person lacks capacity treatment decisions must be made in the person’s best interests (follow the statutory checklist)
The treatment given should be the least restrictive option to the person’s rights and freedoms
Enabling Capacity: Have you,
Been clear about what decision needs to be made, define it clearly and concisely (this helps in other aspects of the Act)
Made every effort to enable the person to make the decision themselves, by being flexible and person-centred
Provided information about the decision in a format that is likely to be understood including information relating to any alternative options ∙ Used a method of communication/language that the person is most likely to understand
Made the person feel at ease and given consideration to what is likely to be the most conducive time and location for them to make the decision
Considered if others can help the person understand information or make a choice
Assessing capacity:
Does the person have an impairment or disturbance in the functioning of the mind or brain? (temporary or permanent)
If yes practitioners must complete the 4-part functional test. Can the person….
understand the information relevant to the decision?
retain the information long enough to make a decision?
weigh up the consequences of making the decision?
communicate their decision by any means?
If the person fails to demonstrate ability in any of the four areas they would be deemed as lacking capacity to consent to or refuse that specific decision.
Ref Code of Practice Chapter 4
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