the mental capacity act and deprivation of liberty safeguards

8/9/2019 The Mental Capacity Act and Deprivation of Liberty Safeguards

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David Pennington Policy Lead DH SW

[email protected]

The Mental Capacity Act

and Deprivation of Liberty

Safeguards


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The Mental Capacity Act 2005

All of the Act came into force on 1st October 2007 but did

not permit deprivation of liberty before April 2009

New Court of Protection / Court appointed deputies

New Independent Mental Capacity Advocate service (since

April 2007 in England)

Office of the Public Guardian / Lasting Powers of Attorney

New research provisions

Statutory Advance Decisions to Refuse Treatment

New criminal offence ill treatment / wilful neglect (since

April 2007)


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The MCA 2005, is a statutory

obligation

Everyone working with and/or caring for an

adult who may lack capacity to make specific

decisions must comply with this Act when

making decisions or acting for that person,when the person lacks the capacity to make a

particular decision for themselves.

The same rules apply whether the decisions

are life-changing events or everyday matters.

Code of Practice 1.1


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LAC (DH) (2008) 4

Early evidence suggests that many staff andmanagers are not taking and recording all bestinterests decisions. The new requirements forthe assessment of capacity may require new

procedures to be developed, documentedand consulted on, covering; specific training;monitoring through regular supervision, andauditing in quality and compliance audits.There is little evidence that this is taking place

in a comprehensive manner.


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LAC (DH) (2008) 4

The Code spells out that not only should theBest Interests Decision be recorded, but theprocess of working out what is in someones

best interests should also be recorded, howthe decision was reached and the factorsconsidered in reaching that decision.

Again the feedback is that this too requires acultural shift which few organisations have yet

achieved.


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we need to ensure that

Everyone is aware of the mental capacity act

All staff understand how to assess capacity

All staff understand how to make a best interests decision

Information on Advance Decisions to refuse treatment is

recorded and acted on appropriately

You are aware of when someone has an attorney

who they have nominated to be consulted, and that they

are consulted when appropriate

HOW do we do this?


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When must an IMCA be

involved?When someone has been assessed as lacking capacity and

A NHS body is proposing

serious medical treatment

a stay of more than 28 days in hospital or 8 weeks in a

care home to change a persons accommodation to another hospital

for more than 28 days or more than 8 weeks in a carehome

A local authority proposes

to change or to provide residential accommodation formore than 8 weeks

and

the person has no appropriate relative, friend, or (unpaid)

carer


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SMT Issues

Lack of clarity about what is SMT

DH concern that significant numbers of

people may not be accessing an IMCA forSMT

Being older and having dementia are

associated with being less likely to accessIMCA for SMT

Difficulties gaining instruction


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When may an IMCA be

involved?

Where an un-befriended person who lacks

capacity;

a) has been in accommodation for more than 12

weeks and a review is proposed

b) Where it is proposed to take protective

measures following allegations of abuse or

neglect of the person, or where the person hasabused another.


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Issues

IMCAs instructed late in the decision making

process

Limited use for planned admissions to hospital or

when stay exceeds 28 days

Being instructed in advance of hospital discharge

Very limited use of IMCAs in

Accommodation/care reviews


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questions

How can we improve IMCA referrals for SMT?

How do we improve use if IMCAs for people with

dementia?


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MCA Issues

Integration of MCA into day to day practice

Confidence around restriction and restraint

CQC monitoring Use of MCA in Mental Health Units


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DOLS and the Mental

Capacity Act 2005

The safeguards are in addition to and part of the mental

capacity act. They do not replace it.

All the principles of the Mental Capacity Act still apply.

Ensuring least restrictive practice will reduce the risk of

deprivation of liberty

The same good practice with people who lack capacity

in making certain decisions about their care still applies.


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Activity as of 31.12.09

30.6.09 30.9.09 31.12.09

Granted : not

granted (25:75)

33:67 38:62 51:49

LA:PCT

(80:20)

77:23 76:24 76:24

LA % granted 30% 36% 51%

PCT % granted 41% 44% 49%

LA no activity 14 4 0

PCT no activity 40 19 8

Completed

assessments

1,856 (37%) 3,527 (36%) 5,322 (35%)


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Breakdown

Disability (more than one can be

recorded)

Q1 Q2 Q3

Physical disability 40% 44% 42%

Mental Health 65% 63% 67%

Dementia 44% 49% 53%

Learning Disability 23% 24% 19%


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Breakdown

Total number of requests required by urgent

authorisations

Q1 1250 (71%) Q2 1137 (67%)

Q3 1316 (70%)

Total number of requests where there was no urgent

authorisation

Q1 522 (29%) Q2 544 (33%)

Q3 553 (30%)


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Breakdown

Number of people subject to a standard authorisation duringthe quarter

Q1 593 Q2 768 Q3 948

Number of people subject to a standard authorisation

on 30.6.09 = 536

on 30.9.09 = 786

on 31.12.09 = 1074

Number of third party requests

Q1 41 leading to 26 full assessments

Q2 66 leading to 45 full assessmentsQ3 65 leading to 39 full assessments

Number of cases where no authorisation is given but person is(now unlawfully) deprived of their liberty

Q1 49 Q2 31 Q3 45


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Issue 1

Number of cases (49 / 31 / 45) where no authorisation

is given but person is (now unlawfully) deprived of

their liberty

What happens next?

Whose responsibility?

Paragraphs 4.72 and 4.73 of the Code


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Issue 2

Appointment of RPR who may be opposed to the

deprivation of liberty

Paragraph 7.17 of the Code


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Issue 3

Setting of conditions

Paragraphs 4.74 and 4.75 of the Code


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Failure to follow MCA or DOLS may result in legal

remedy

Solicitors have already taken cases to court on MCA and

DOLS CQC will be producing a report on DOLS from April 2010

MCA and DOLS are not just good practice but a LEGAL

REQUIREMENT

the mental capacity act and deprivation of liberty safeguards

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