Legal IssuesLegal Issues
AimsAimsCase
MCA◦Decision Making◦Best interests◦Other
MHA
DoLs
Case SarahCase Sarah40 year ladyLived carer / partnerModerate LD & epilepsyComplex mental health issues
◦Psychosis◦Vulnerability
CaseCaseDevelops gangrenous R foot
Admitted DGH
Fluctuating consciousness
Partner asked to consent to amputation
DiscussDiscuss? ViewsWho decides re capacity?How should capacity be
determined?How are best interests decided?Where could they seek advice?
MENTAL CAPACITY ACT MENTAL CAPACITY ACT 20052005
Legal concepts
Statutory PrinciplesStatutory PrinciplesPresumed 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.
Aspects to considerAspects to considerTiming /urgency of decisionCommunicationCultureAdvocate Carers
2 Stage Test2 Stage Test
Impairment of mind / brain (temporary / permanent).
Impairment prevents a particular decision at the time it needs to be made.
Ability to make decisionAbility to make decisionGeneral understanding
◦ relevant information of decision ◦ why need to make it.◦Consequences of proposed action &
of not doing it.Understand, retain, use & weigh.Communicate.
Capacity – particular Capacity – particular decisiondecisionUnderstand (relevant
information)Retain, Use & weigh.Communicate.
Incapacitous 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.
Who decidesWho decidesFinal 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.
Practical stepsPractical stepsUnderstand nature & effect of
decisionOther - staff / recordsFamily - not their view but what
they think person would want confidentiality
Explain information at right levelCheck understanding few
minutes - rough explanation
Professional / expert Professional / expert adviceadviceComplicated / 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.
Challenge findingChallenge findingAsk assessor reasons & objective
evidenceAssessor must show followed
principles of Mental Capacity ActSecond opinionIf disagreement cant be resolved
> Court of Protection - rule
Best interestsBest 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
Best Interests ChecklistBest Interests ChecklistPerson participate as much as
possible.Identify all relevant circumstancesPersons views -
◦ Past / present◦ Beliefs & values◦ Other factors they would have considered
if deciding for self Avoid discrimination -age, appearance
condition behaviour
Best Interests Checklist…Best Interests Checklist…?regain capacityConsult others - Confidentiality
◦ Carers ◦ Relatives◦ Attorneys◦ Court appointed deputy
IMCALeast restrictive optionWeigh all
Life sustaining decisionsLife sustaining decisionsNot be motivated by desire to
bring about deathNot make assumptions on QoLReasonable steps to prolong lifeNot obliged to if not in best
interest of patientCourt of protection if dispute
ExceptionsExceptionsAdvance decisionResearch not covered here
CapacityCapacityDecision maker decides best interestsLasting 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
DisputesDisputesAdvocate2nd opinionBest interest case conferenceMediationCourt of protection
AdvocacyAdvocacyNo close friends/ familyFamily disagreeDoctors / family disagreeConflict of interestUse of restraint or restrictionsProtection of vulnerable adult
Legal adviceLegal adviceDifficult / potentially problematic
casesSeek advice from
◦MPS / MDU◦Trust legal advisors
MENTAL HEALTH ACTMENTAL HEALTH ACTLegal Aspects
MHAMHAUse as for general psychiatry e.g.
depressive disorder etcLD
◦Arrested / incomplete development of mind
◦Significant impairment of intelligence +
◦Significant social functioningAbnormally aggressive Behaviour
orSeriously irresponsible conduct
LD - ActLD - ActState of arrested / incomplete
development of mind which includes significant impairment of intelligence & social functioning
Present prior to adulthoodNot from accident / injury / illness
after normal development.
Significant impairment of IQ ◦on basis of reliable & careful
assessment◦Not defined by arbitrary cut off
&
Significant social impairment
Abnormally aggressive & irresponsible Abnormally aggressive & irresponsible behaviourbehaviour
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 behaviourSeriously irresponsible conductNot defined Depend on nature of B & circumstances
Ax conduct abnormally Ax conduct abnormally aggressiveaggressiveNot defined Depend on nature of B & circumstancesRisks safety for individual & othersHow persistent & severe it been
?trigger ?out of proportionWhether & to what degree > harm /
distress to others / damage to property
? Likely to reoccur? How common to popn generally
Ax seriously irresponsible Ax seriously irresponsible conductconduct? B suggest disregard
/inadequate regard for its serious / dangerous consequences
? How recent ? Persistence? Harm to othersIf not recent how likely to reoccur
DEPRIVATION OF DEPRIVATION OF LIBERTY SAFEGUARDS LIBERTY SAFEGUARDS (DOLS)(DOLS)
Legal aspects
BackgroundBackgroundBournewood 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
ECHRECHRHL 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
DoLSDoLSSafeguard for “Bournewood gap”Difference between restriction upon
liberty or deprivation of liberty one of degree or intensity
Factors to consider re Factors to consider re restraint / deprivationrestraint / deprivationRestraint including sedation to admit
person who is resisting admissionComplete effective control care &
movement significant periodsDecided not to release into care of
others or permitted to live elsewhereRefused request by carers for person
to be dischargedUnable to maintain social contactsLoses autonomy as under continuous
supervision
AuthorizingAuthorizingCourt of protectionDoLSNecessary in order to give life -
sustaining treatment while decision sought from court
Supervisory body PCT or Local authority authorize DoL adult in hospital / care home respectively
Needs◦Representative◦Regular review
Can request review any time
Lack capacityBest interestsLess restrictive alternative
6 requirements6 requirementsAge - >18Mental 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 checklistconsult others – IMCA if no one
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
ReferencesReferences
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 2005. TSO