In Control Conference Tuesday 16 th March 2010 The Mental Capacity Act and Deprivation of Liberty...

In Control Conference

Tuesday 16th March 2010

The Mental Capacity Act and Deprivation of Liberty

Mathieu CulverhouseIrwin Mitchell Solicitors

mathieuculverhouseirwinmitchellcom


bull Passed by Parliament in 2005 after wide consultation

bull Covers England and Wales and came into effect in two stages on 1st April and 1st October 2007

bull Establishes a single and comprehensive legal framework for decision making for people over the age of 16 who may not be able to make their own decisions due to illness learning disability or mental health problems (including effects of drugsalcohol or temporary loss of capacity)

bull Deals with personal welfare issues property and general affairs of an individual

The Mental Capacity Act 2005 What is it


bull 2 million people lack capacity to make decisions for themselves (dementia learning disabilities mental health problems stroke brain injury)

bull Up to 6 million informal carers with no clear guidance as to how decisions are to be made and by whom

bull No legal basis for ldquonext of kinrdquo

bull Court of Protection had jurisdiction over financial affairs only (Lunacy Act 1890) and jurisdiction relates to mental disorder only (Mental Health Act 1959) so excluded drugalcohol related conditions

bull Enduring Powers of Attorney Act 1985

bull Mental Health Act 1983 ndash restricted powers

bull Need for a comprehensive and workable legal framework

Why did we need a new Act


bull Make decisions in relation to

bull Financial Affairs

bull Court of Protection

bull Power of Attorney Wills

bull Health and Personal Welfare eg

bull Consent to medical treatment

bull Where to livecare arrangements

bull Personal Conduct

ndash who to associate with

ndash marriage and sexual relations

bull Litigation process

Capacity to do what


New test (Section 2 MCA 2005)

ldquoa 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 of the mind or brainrdquo

There is no universal test and there is a different test for different purposes

Section 3

A person is unable to make a decision for himself if he is unable to

a Understand the information relevant to the decision

b Retain that information

c Use and weigh that information as part of the process of making the decision-making

d To communicate his decision (whether by talking using sign language or any other means)

What is Capacity


Decision Making Under the Mental Capacity Act

ARE THERE CONCERNS ABOUT CAPACITY TO MAKE THAT DECISION

CONSIDER IF THE PERSON HAS THE CAPACITY TO MAKE THAT SPECIFIC DECISION AT PRESENT (MAY SEEK FORMAL ASSESSMENT)

CONSIDER STRATEGIES TO ASSIST THE PERSON TO MAKE THEIR OWN DECISION

CAN THE PERSON MAKE THE DECISION WITH ASSISTANCE

A DECISION OR SERIES OF DECISIONS IS REQUIRED TO BE MADE FOR A PERSON

GO AHEAD ON PERSONrsquoS INSTRUCTIONS WITH THEIR CONSENT

ASSESSED AS HAVING CAPACITY FOR THAT SPECIFIC DECISION

YES

NO

YES

NO

NO

PERSON LACKS CAPACITY TO MAKE DECISION ndash CONSIDER WHAT COURSE OF ACTION IS IN PERSONrsquoS BEST INTERESTS AND CONSULT IF APPROPRIATE

MAY TAKE INSTRUCTIONS FROM DEPUTY ATTORNEY OR SEEK DIRECTIONS FROM COURT OF PROTECTION

YES


There are five key principles in the Act

bull Every adult has the right to make his or her own decisions and must be assumed to have capacity to make them unless it is proved otherwise

bull A person must be given all practicable help before anyone treats them as not being able to make their own decisions

bull Just because an individual makes what might be seen as an unwise decision they should not be treated as lacking capacity to make that decision

bull Anything done or any decision made on behalf of a person who lacks capacity must be done in their best interests

bull Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms

Key Principles of the Act


Section 4 of the Act sets out a framework for considering what is in a personrsquos ldquobest interestsrdquo and as far as possible the decision maker should consider

bull The personrsquos past and present wishes and feelings (including any written statement made when he had capacity)

bull The beliefs and values that they would be likely to have if they had capacity

bull Factors they would consider ldquoif able to do sordquo

bull The views of others should also be consulted if appropriate namely-

ndash Anyone named by the person as someone to be consulted

ndash Anyone caring for the person or interested in their welfare

ndash Anyone appointed under a Power of Attorney

ndash Any deputy appointed by the Court

MCA does not define best interests but does give a checklist which probably should be used as a checklist

The Duty To Act In The ldquoBest Interestsrdquo


bull Extra safeguard for particularly vulnerable people in specific situations Medical treatmentlong stay accommodation decisions

bull Duty on local authorities or NHS bodies to provide this service where necessary

bull Who - People with no-one to consult or speak for them (other than paid carers)

bull When - When decisions are being made about serious medical treatment or significant changes of residence eg moving care homes or hospital

bull What - The IMCA represents and supports the person who lacks capacity The IMCA makes representations about the personrsquos wishes feelings beliefs and values at the same time as bringing to the attention of the decision-maker all factors that are relevant to the decision The IMCA can challenge the decision-maker on behalf of the person lacking capacity if necessary

Independent Mental Capacity Advocates (IMCAs)


The MCA provides legal protection from liability for carrying out certain actions in connection with the care and treatment of people who lack capacity to consent provided that

bull reasonable belief that the person lacks capacity in relation to the matter in question

bull reasonable belief the action you have taken is in the best interests of the person

MCA section 5 acts in connection with care and treatment


bull Use of restraint not protected under section 5 unless

ndash Reasonably believes that it is necessary to prevent harm

ndash Proportionate response to that risk and likely nature of that harm

bull Deprivation of Liberty is excluded

Use of restraint Section 6 MCA


Provisions of the Code of Practice ldquoThe deprivation of a persons liberty is a very serious matter

and should not happen unless absolutely necessary and in the best interest of the person concerned That is why the

safeguards have been created to ensure that any decision hellip is made following defined processes and in consultation

with specific authoritiesrdquo

Deprivation of Liberty Safeguards


What do we mean by ldquodeprivation of libertyrdquo


bull Restraints and Restrictions

bull Deprivation of Liberty

bull ldquoThe distinction between a deprivation of and a restraint upon liberty is merely one of degree or intensity and not one of nature or substancerdquo HL v United Kingdom

bull Each individual case must be assessed on its own circumstances ndash be aware of previous cases

Deprivation of Liberty


bull DOL is ultimately a legal question

bull Account must be taken of the type duration effects and manner of implementation of the measure in question

bull Number of indicators and examples in the Code of Practice



bull Complete and effective control over care and movement for a significant period

bull Conscious decision taken that if P tries to leave this will be prevented

bull Restraints (including sedation) regularly used or used to admit to placement

DOL Indicators


bull Staff exercise control over assessments contacts treatment and residence

bull Request for discharge refused

bull Loss of autonomy due to continuous supervision and or control

DOL Indicators


bull Degree of control over care and movement

bull Presence of any physical or other restraints

bull Ability to maintain social contact of choice

bull Refusal to accede to personal or relatives requests for discharge

bull Continuous Supervision

Checklist of Factors



Restraint DOL

Doors locked but P can leave rarr Locked doors and P rarely goes out

P is prevented from leaving unless escorted for safety reasons rarr P never leaves without escort Escort not always available

Some control over P by staff rarr Extensive control over P by staff

Contact with others limited by visiting hours rarr Contact with others limited by additional rules

P given some choice over daily activity rarr Continuous Supervision leads to a complete loss of control over daily living



bull Presence of any physical or medical restraints

bull Advance decision that the person will not be released


bull Refusal to accede to personal or relatives request for discharge

bull Continuous supervision monitoring or control

Checklist of factors


bull Summarise what the elements of the care plan will be measured against the list above

bull Consider the effect of the arrangement on the personrsquos individual freedom and expressed intentions

bull Assess the views of those concerned for the persons welfare

bull Overall cumulative effect going beyond mere ldquorestrictionrdquo

bull If DOL ndash follow the DOLS process

Summary ndash Deprivation of Liberty


bull Provide a procedure for deprivation of liberty to be authorised by delegated arms of the state

bull Provide a safeguard for vulnerable people who ldquobest cared forrdquo in a residential care home or hospital

bull Do not apply if-

ndash Person is aged under 18

ndash Person has capacity to make their own decision

ndash Person requires treatment under the Mental Health Act procedures



bull Identification of the need for an authorisation

bull Application for authorisation

bull Initial consideration by the supervising authority

bull Assessment

bull Assessment outcome

bull Review

Process overview


bull Age assessment

bull No refusals assessment

bull Mental capacity assessment

bull Mental health assessment

bull Eligibility assessment

bull Best interests assessment

DOLS Assessment


bull If all 6 assessments are supportive the supervising authority must written authorisation

bull Authorisation must have a time limit and may impose conditions

bull Notification of decision to managing authority the person concerned IMCAs etc

bull Limits on the effect of the authorisation

DOLS Authorisation


DOLS Code of Practice

bull ldquoWhat orders can the Court of Protection make

bull 1010 The court may make an order 1048691 varying or terminating a standard or urgent authorisation or 1048691 directing the supervisory body (in the case of a standard authorisation) or the managing authority (in the case of an urgent authorisation) to vary or terminate the authorisation

bull What is the role of the Court of Protection in respect of people lacking capacity who are deprived of their liberty in settings other than hospitals or care homes

bull 1011 The deprivation of liberty safeguards relate only to circumstances where a person is deprived of their liberty in a hospital or care home Depriving a person who lacks capacity to consent to the arrangements made for their care or treatment of their liberty in other settings (for example in a personrsquos own home in supported living arrangements other than in care homes or in a day centre) will only be lawful following an order of the Court of Protection on a best interests personal welfare matter (see paragraph 651 of the main Code)

bull 1012 In such a case application to the Court of Protection should be made before deprivation of liberty begins A Court of Protection order will then itself provide a legal basis for the deprivation of liberty A separate deprivation of liberty authorisation under the processes set out in this Code will not be requiredrdquo

bull On appeal from a DOLS authorisation there is a specific Practice direction supplementing Part 10A COPRwwwhmcourts-servicegovukcourt_protectionDOL-PD-proposedfinalsignaturedraft-270209-1doc

bull Where DOLS does not apply in a straight application for court authorisation the court can make s16 and 17 MCA orders authorising DOL

Role of the Court in DOL cases


bull Munby J in Salford CC v BJ (2009)EWHC 3310 (Fam) provides the authorities for the courtrsquos (inherent and then COP) jurisdiction and approach in DOL cases

bull ldquo19 Both my judgment in this case Re GJ NJ and BJ (Incapacitated Adults) (2008) EWHC 1097 (Fam) [2008] 2 FLR 1295 and my earlier judgment in Re PS (Incapacitated or Vulnerable Adult) (2007) EWHC 623 (Fam) [2007] 2 FLR 1083 have been referred to seemingly with approval both by the President of the Family Division sitting in the Court of Protection in A Primary Care Trust and P v AH and a Local Authroirty [2008] EWHC 1403 (Fam) [2008] 2 FLR 1196 and by Charles J also sitting in the Court of Protection in GJ v The Foundation Trust and others [2009] EWHC 2972 (Fam) The opportunity the present application has afforded me to consider the topic again does not cause me to alter any of the views I have previously expressed My starting point therefore is what I said in Re GJ NJ and BJ (Incapacitated Adults) (2008) EWHC 1097 (Fam) [2008] 2 FLR 1295

20 At the time I delivered that judgment the deprivation of liberty amendments to the Mental Capacity Act 2005 effected by the Mental Health Act 2007 (the new sections 4A 4B and 16A and the new Schedules A1 and 1A) were not yet in force They have since been brought into force but it is correctly common ground that Schedule A1 does not apply to BJ because his accommodation at MH is not a ldquohospital or care homerdquo within the meaning of Schedule A1 paragraph 1(2) Nor does section 4B of the 2005 Act apply for BJrsquodeprivation of liberty is not for either of the purposes referred to in section 4B(3) Nor does section 16A of the 2005 Act apply for BJ is not ldquoineligible to be deprived of liberty by this Actrdquo his situation not being one of those referred to in Schedule 1A ldquo

DOL caselaw


bull 21 It follows that consistently with the general analysis of Article 5 set out in Re PS (Incapacitated or Vulnerable Adult [2007] EWHC 623 (Fam) [2007] 2 FLR 1083 and Re GJ NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam) [2008] 2 FLR 1295 any continuing deprivation of BJrsquos liberty is permissible only if sanctioned by either

bull i) the Family Division of the High Court exercising its inherent jurisdiction in relation to incapacitated or vulnerable adults see Re PS (Incapacitated or Vulnerable Adult [2007] EWHC 623 (Fam) [2007] 2 FLR 1083 and Re GJ NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam) [2008] 2 FLR 1295 orii) the Court of Protection exercising its powers in accordance with section 15(1)(c) of the 2005 Act see Surrey County Council v MB [2007] EWHC 3085 (Fam) and A Primary Care Trust and P v AH and a Local Authority [2008] EWHC 1403 (Fam) [2008] 2 FLR 1196 or iii) the Court of Protection in accordance with sections 4A(3) 4A(4) and 16(2)(a) of the 2005 Act see GJ v The Foundation Trust and others [2009] EWHC 2972 (Fam)

bull 22 Unsurprisingly because everything eventually turns on Article 5 and the Strasbourg jurisprudence the Court of Protection exercises these statutory jurisdictions in accordance with the same principles as the High Court applies when exercising its inherent jurisdiction see Surrey County Council v MB [2007] EWHC 3085 (Fam) at paras [29] [69] A Primary Care Trust and P v AH and a Local Authority [2008] EWHC 1403 (Fam) [2008] 2 FLR 1196 at paras [29]-[32] and GJ v The Foundation Trust and others [2009] EWHC 2972 (Fam) at para [23]

DOL caselaw


bull Growing body of case law includeshellip

bull DOL possible in the family home Physical restraints automatically DOL Inherent Jurisdiction overlap

bull GJ V The Foundation Trust [2009] EWHC 2972 (Fam) Charles J - This judgment was concerned with the interface issues between the MHA and MCA DOLS in circumstances where a person is or may need to be deprived of their liberty in order to be treated in hospital wholly or partly for their mental disorder

bull W PCT v B[2009 ] EWHC 1737 (Fam) Wood J - The Court of Protection found that TB was eligible to be deprived of her liberty by the Safeguards if it were in her best interests to do so as she was not a mental health patient as defined under schedule 1A of the Mental Capacity Act 2005 because the authorisation related to a care home which was not a hospital within the meaning of Pt 2 of the Mental Health Act ( see s145(1) Mental Health Act)

bull LB Enfield v SA 2010 EWHC 196 (Admin) in the COP Macfarlane J - The Judgment followed a 3 day fact-finding hearing and contains a number of points of law including

ndash Hearsay evidence is admissible in COP proceedings including evidence from P

ndash Where proceedings are ongoing any decision to do an lsquoAchieving Best Evidencersquo interview by the police should be subject to a direction from the COP Judge

ndash The Local Authority are under a duty of full and frank and ongoing disclosure Specific wording is advised at para 58 of the Judgement where disclosure is requested

ndash Judicial continuity should be standard in the COP as it is in Children Act proceedings where there is a fact-finding hearing followed by a final hearing of the matter to consider best interests

DOLsDOL


bull Deprivation of Liberty Safeguards available online at the DoH website

bull Further details and latest documents in DoL secion of DoH website

bull httpwwwdhgovukenSocialCareDeliveringadultsocialcareMentalCapacityMentalCapacityActDeprivationofLibertySafeguardsindexhtm

Further help



Mathieu Culverhouse

Irwin Mitchell LLP



bull Passed by Parliament in 2005 after wide consultation

bull Covers England and Wales and came into effect in two stages on 1st April and 1st October 2007

bull Establishes a single and comprehensive legal framework for decision making for people over the age of 16 who may not be able to make their own decisions due to illness learning disability or mental health problems (including effects of drugsalcohol or temporary loss of capacity)

bull Deals with personal welfare issues property and general affairs of an individual

The Mental Capacity Act 2005 What is it






















Capacity to do what





Section 3






What is Capacity










YES

NO

YES

NO

NO



YES






























































DOL Indicators





DOL Indicators










Restraint DOL

































bull Assessment


bull Review

Process overview


bull Age assessment






DOLS Assessment






DOLS Authorisation















DOL caselaw





DOL caselaw











DOLsDOL





Further help



Mathieu Culverhouse

Irwin Mitchell LLP























Capacity to do what





Section 3






What is Capacity










YES

NO

YES

NO

NO



YES






























































DOL Indicators





DOL Indicators










Restraint DOL

































bull Assessment


bull Review

Process overview


bull Age assessment






DOLS Assessment






DOLS Authorisation















DOL caselaw





DOL caselaw











DOLsDOL





Further help



Mathieu Culverhouse

Irwin Mitchell LLP






Section 3






What is Capacity










YES

NO

YES

NO

NO



YES






























































DOL Indicators





DOL Indicators










Restraint DOL

































bull Assessment


bull Review

Process overview


bull Age assessment






DOLS Assessment






DOLS Authorisation















DOL caselaw





DOL caselaw











DOLsDOL





Further help



Mathieu Culverhouse

Irwin Mitchell LLP











YES

NO

YES

NO

NO



YES






























































DOL Indicators





DOL Indicators










Restraint DOL

































bull Assessment


bull Review

Process overview


bull Age assessment






DOLS Assessment






DOLS Authorisation















DOL caselaw





DOL caselaw











DOLsDOL





Further help



Mathieu Culverhouse

Irwin Mitchell LLP































































DOL Indicators





DOL Indicators










Restraint DOL

































bull Assessment


bull Review

Process overview


bull Age assessment






DOLS Assessment






DOLS Authorisation















DOL caselaw





DOL caselaw











DOLsDOL





Further help



Mathieu Culverhouse

Irwin Mitchell LLP






DOL Indicators










Restraint DOL

































bull Assessment


bull Review

Process overview


bull Age assessment






DOLS Assessment






DOLS Authorisation















DOL caselaw





DOL caselaw











DOLsDOL





Further help



Mathieu Culverhouse

Irwin Mitchell LLP











Restraint DOL

































bull Assessment


bull Review

Process overview


bull Age assessment






DOLS Assessment






DOLS Authorisation















DOL caselaw





DOL caselaw











DOLsDOL





Further help



Mathieu Culverhouse

Irwin Mitchell LLP





























bull Assessment


bull Review

Process overview


bull Age assessment






DOLS Assessment






DOLS Authorisation















DOL caselaw





DOL caselaw











DOLsDOL





Further help



Mathieu Culverhouse

Irwin Mitchell LLP



bull Age assessment






DOLS Assessment






DOLS Authorisation















DOL caselaw





DOL caselaw











DOLsDOL





Further help



Mathieu Culverhouse

Irwin Mitchell LLP







DOLS Authorisation















DOL caselaw





DOL caselaw











DOLsDOL





Further help



Mathieu Culverhouse

Irwin Mitchell LLP
















DOL caselaw





DOL caselaw











DOLsDOL





Further help



Mathieu Culverhouse

Irwin Mitchell LLP






DOL caselaw











DOLsDOL





Further help



Mathieu Culverhouse

Irwin Mitchell LLP












DOLsDOL





Further help



Mathieu Culverhouse

Irwin Mitchell LLP






Further help



Mathieu Culverhouse

Irwin Mitchell LLP




Mathieu Culverhouse

Irwin Mitchell LLP


In Control Conference Tuesday 16 th March 2010 The Mental Capacity Act and Deprivation of Liberty...

Documents

Transcript of In Control Conference Tuesday 16 th March 2010 The Mental Capacity Act and Deprivation of Liberty...