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