The Mental Capacity Act 2005 and the Deprivation of Liberty

SafeguardsP4 Practitioner Level

May 2015

www.devon.gov.uk/index/socialcarehealth/scwd/scwd-safeguarding-adults.htm

Toilets Fire ProcedureSmoking

Mobile Phones / Devices

Finishing Time

Breaks

Housekeeping

Ground RulesSafeguarding is a dynamic world and we continue to learn about how to prevent people from being harmed on both a strategic / organisational level and as individual practitioners.

Safeguarding is about partnership, it is not about blame. All agencies and individuals need to take responsibility, to reflect and learn to safeguard people who may be vulnerable.

Ground Rules

Confidentiality within the group will be respected but may need to be broken if a disclosure of unsafe practice, abuse or neglect is made during the course – this will usually be discussed with you first.

Introductions

• Name

• Place and nature of work

• Pre-read – what do you want to get out of today’s session?

Outcomes

• Understand the legal framework for providing care, treatment and support

• Consider the implications of using restraint to keep people safe from harm

• Be aware of cumulative effects of restrictions and ways of minimising their use / impact

• Understand what is meant by Restriction, Restraint and Deprivation of Liberty and the significance of the differences between them

Training Transfer

Getting learning into practice

• “50% of learning fails to transfer to the workplace”

(Sak, 2002)

• “The ultimate test of effective training is whether it benefits service users”

(Horwath and Morrison, 1999)

Emerging Changes / Considerations • Many of you will be aware that there has been a

Supreme Court Judgement • This is currently being considered on a national and

local basis and some elements are reflected in this training

• Additional information is available by organisations such as CQC web site and decisions need to be taken by providers at a local level at this time

• www.scie.org.uk/publications/mca New Resources • Care Act 2014

Group Discussion

Supreme Court Judgment

“What it means to be deprived of liberty must be the same for everyone, whether or not they have physical or mental disabilities. If it would be a deprivation of my liberty to be obliged to live in a particular place, subject to constant monitoring and control, only allowed out with close supervision, and unable to move away without permission [...] then it must also be a deprivation of liberty of a disabled person.” (Lady Hale)

Care Act 2014 - Wellbeing ........... beginning with the assumption that the individual is best-placed to judge the individual’s wellbeing. Building on the principles of the Mental Capacity Act, the local authority should assume that the person themselves knows best their own outcomes, goals and wellbeing. Local authorities should not make assumptions as to what matters most to the person;

New Statutory Advocacy

• The Act requires local authorities to involve people in assessments, care and support planning, and reviews.

• In order to facilitate the involvement and engagement of people who would otherwise have difficulty, it introduces a new requirement to arrange independent advocacy for people…

• A) who have substantial difficulty in being involved/ engaged in these processes and

• B) where there is no one available to help facilitate this involvement and engagement.

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Advocacy

• Self Advocacy is when someone is able to express their own views. Could be verbal or non-verbal

• Supported advocacy when someone needs encouragement to express their views

• Advocacy – when someone speaks on behalf of another

• IMCA / IMHA – professional advocates under specific legislation

Human Rights Act, 1998

“All human beings are born free and equal in dignity and rights.”

The HRA defines the role of the State in upholding our freedom, dignity and rights; this includesprotecting us from each other.It also establishes if, when and how our rights maybe restricted or withdrawn.

Human Rights Act 1998This came into force in October 2000 in the UK. Basic human rights incorporated for the convention are:Article 2 Right to lifeArticle 3 Prohibition of torture or inhumane

degrading treatment or punishmentArticle 4 Prohibition of slavery & forced labourArticle 5 Right to liberty & security of personArticle 6 Right to a fair hearing. Article 7 No punishment without lawful

authority.

Human Rights Act contArticle 8 Respect for private & family life, home

or correspondence.Article 9 Freedom of thought, conscience &

religion. Article 10 Freedom of expression.Article 11 Freedom of assembly & association.Article 12 Right to marry & have a family. Article 14 The enjoyment of the rights &

freedom set fourth in this conventionshall secured without discrimination

Human Rights: A Balancing Act

Some rights may be withdrawn or limited ‘in accordance with a procedure prescribed by law when necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.’

Key Principles

Principle 1: A person must be assumed to have capacity unless it is established that they lack capacity. Principle 2: Individuals must be supported to make their own decisionsPrinciple 3: People have the right to make what others might regard as an unwise or eccentric decision

Principle 4: Best Interest 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 interest. Principle 5: Least Restrictive 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.

Key Principles

The MCA “Process”

Is there a concern about a persons capacity ? (with regard to a specific decision)

Undertake a Capacity Assessment

Or

Their own decision Best Interest decision (even if we think it is unwise) (multi-agency)

HL v. UKHL was an autistic man with a Learning Disability who lacked capacity to consent to treatmentAdmitted to hospital in emergencyNot treatable under MHADischarge to carers refused

ECtHR – illegal - no formal procedure for admittance or appeal against detention

Terms

• Best Interest is one underpinning principles of the Act

• Best Interest is a collaborative process used when an adult lacks capacity and an important decision needs to be made

• A Best Interest Assessor is the key professional when a Deprivation of Liberty Safeguard application is made

Case study – Val & Vernon

Activity

Human RightsVal lacks capacity in most areas of her life. No one person has legal authority (e.g. LPA) to make decisions on her behalf.

In which areas do you think the State may have a duty to intervene to protect her Rights?

Activity

The Best Interest Decision

What are the options?

What are the pros and cons?

Activity

Best Interest Decisions

“What good is it making someone safer if it merely makes them miserable? No good at all.”

(Lord Justice Munby)

What could you do if Val refuses:

1. To go to the care home?

2. To stay at the care home?

3. To take her medication?

Activity

What is Restraint?

Someone is using restraint if they:

• Use force – or threaten to use force – to make someone do something that they are resisting, or

• Restrict a person’s freedom of movement, whether they are resisting or not

Activity

Examples of Restraint • Chemical • Financial• Physical • Barriers• Removal of equipment • Preventing contact • No communications• IT / phone removal • Psychological

RestraintAny action intended to restrain a person who lacks capacity must follow the following two conditions:

– The person taking action must reasonably believe that restraint is necessary to prevent harm to the said person

– The amount or type of restraint used and the amount of time it lasts must be a proportionate response to the likelihood and seriousness of harm

Guidance / good practice

• Social Care Institute for Excellence (SCIE) ADULTS’ S ERVICES REPORT 25Minimising the use of ‘restraint’ in care homes: Challenges, dilemmas and positive approaches

www.scie.org.uk

Limits of Section 5 Decisions

Best Interest Decision -> -> -> -> -> -> -> -> -> Deprivation of Liberty Authorisation

The acid test• It is also necessary in each case to consider: • –Whether the DOL lasts more than a negligible period of

time • –Whether the person is able to give consent to an

objective DOL • –Whether the objective DOL is imputable to the state

(this criteria is satisfied even if the state has arranged a placement in a private hospital – LDV).

• Note the Supreme Court was clear the state should err on the side of caution in deciding whether P is DOL’d

Your Rights if You are Arrested:

• be told in a language you understand why you have been arrested and what charges you face

• have a trial within a reasonable time• go to court to challenge your detention if you

think it is unlawful• compensation if you have been unlawfully

detained.

Your Rights if You are ‘Sectioned’:

• Be told in a language you understand why you have been detained and what the treatment is for

• Be told about any side-effects• Support from an Independent Mental Health

Advocate• To appeal against your detention if you feel it

is unlawful

Your Rights if You Are ‘Deprived’:

Formal process for deprivation of liberty

Representation/advocacy during assessment and if authorised (IMCA)

Opportunity for the Deprivation of Liberty to be reviewed and monitored

A Right of Appeal

Allow the lawful deprivation of liberty of an Individual (who lacks capacity) in a care homeor hospital

• Must be necessary to prevent them coming to harm (not others)

• Must be in their best interests (not the organisation’s)

• Must be proportionate to the risk of harm

Deprivation of Liberty

Safeguards

Referral for DoL Authorisation

The managing authority (the person or body with management responsibility for thecare home or hospital where the person is being, or may be, deprived of their liberty) must apply to the supervisory body (the Local Authority) for DoL authorisation where it appears that a person is, or may be, deprived of their liberty.

Deprivation of Liberty

For those people who are not in a Care Home or Hospital but who are deprived of their liberty,

a S.16 Personal Welfare Application to the Court of Protection will be required.

(Includes 16 / 17 year olds)

Case Studies Is the person being deprived of their liberty?• Consider type of restraint, duration & manner

of implementation. • Don’t forget that even those who are

compliant may be deprived of their libertyIs it legal? It in their best interests?Is it proportionate?Is it the least restrictive option?

Activity

• DLS info line Tel : 01392 381676• dols@devon.gov.uk (signed paper copy will

need to follow)

• DLS / MCA secure fax : 01392 383327

• Safeguarding Adults Team, The Annexe, County Hall, Topsham Road, Exeter EX2 4QR. Tel: 01392 382339

DLS Service

Summary

• If a person lacks capacity to make a particular decision, a decision will need to be made in their best interest

• When making decisions for others workers must be able to show what they did and why they did it

• Restraint is permissible if necessary to prevent harm to the person, it is in the person’s best interests, it is proportionate to the likelihood and seriousness of that harm and there is no less restrictive alternative.

• Deprivation of Liberty must be authorised by a Best Interest Assessor.

Any Questions?

• http://www.devon.gov.uk/index/socialcarehealth/adult-protection/mentalcapacityact.htm

• www.dh.gov.uk• www.publications.parliament.uk • www.cqc.org.uk• www.scie.org.uk• www.scils.co.uk Password available from

workforcedevelopmentsafeguarding-mailbox@devon.gov.uk

Useful Websites

Evaluation forms