Who is the MCA for?

Anyone aged 16 or over who is unable to make a decision for themselves due to an impairment, or disturbance, in the functioning of their mind or brain.

The disturbance in the functioning of the mind can be temporary or permanent.

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What does it tell us? HOW to decide if someone doesn’t have

capacity to make a particular decision. WHO can make a decision for them. WHAT to consider when decision making, and

who to consult. WHEN decisions must go to the Court of

Protection. WHICH decisions we can make in advance in

preparation for the future.

Principles of the MCA A person must be assumed to have capacity unless it is

established that they lack capacity. A person is not to be treated as unable to make a decision

unless all practicable steps to help him to do so have been taken without success.

A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

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.

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.

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The decision Work out what decision you are asking

the person to make. The decision should be clear, specific

and concrete. Should this decision go to the Court of

Protection? Is it covered by the Mental Health Act instead? (MCA Code of Practice 1.8 – 1.11)

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Who is the decision maker?

Has the person made a relevant Advance Decision? Is there an Attorney or Deputy able to make the decision?

If not, work out who can carry out the decision. A meeting can make a decision if there are lots of people involved.

“Next of Kin” don’t have powers to make decisions, unless they are an Attorney, or Deputy, or the decision maker.

Advance decisions We can all make advance decisions

to refuse types of medical treatment. When we lose capacity the advance

decision should be followed. Decisions to refuse life-sustaining

treatment must be in writing and witnessed.

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Attorneys and Deputies Can have Property and Affairs powers, or Health

and Welfare, or both. Attorneys are chosen whilst person has capacity.

Deputies are appointed by the CoP when the person has lost capacity.

Check the papers. What sort of powers? Is it registered? Are there conditions?

Concerns about an Attorney or Deputy? Contact Office of the Public Guardian. OPG can investigate and remove them.

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Mental Capacity Capacity is always decision specific and time

specific. You can never say a person “lacks capacity”. You can only say a person lacks capacity to

make a particular decision. The decision maker must be satisfied the

person lacks capacity to make the decision. (They can consult others).

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Capacity TestFirst Stage – Does the person have an impairment or disturbance in the functioning of their mind or brain?

Second Stage – If so can theyUnderstand the necessary information?Retain that information?Weigh up the informationCommunicate their decision?

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Outcome of capacity test

If the person fails any one of the second stage tests then they lack capacity to make the decision.

If the decision is important record why you think they lack capacity.

If you think they have capacity when others do not, then record why!

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Best interests decisions -Who to consult Consult people interested in the person’s welfare. In

safeguarding investigations you can ask for an Independent Mental Capacity Advocate for those involved.

For serious medical decisions, or proposed longer term residential or hospital care, the decision maker must consult an unpaid involved person, or ask for an IMCA.

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Best Interests decisions- What to consider All the relevant circumstances Can the person be helped to take part? Consider the person’s past and present wishes,

and the views of others. Can it wait until they regain capacity? Is it a decision that must go to the Court of

Protection? (Check Code of Practice). Consider Human Rights Act.(Article 8 right to

private and family life)

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Best Interests decisions Record how you made your decision and who

you consulted. Are any restrictions on the person

proportionate to the harm they would otherwise suffer?

Will it result in deprivation of liberty in a care home or hospital? (Dols)

If proposed to remove someone from their family or restrict contact seek legal advice.

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Deprivation of Liberty Safeguards

Who are the Safeguards for?

The Deprivation of Liberty Safeguards apply to people aged 18yrs and over staying in a care home or a hospital.

The Safeguards can authorise deprivation of liberty in a care home or hospital if the person does not have capacity to decide where they receive care and treatment, and it is in their best interests to stay.

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What the law says about deprivation of liberty European Convention on Human Rights says

we all have a right to liberty. We can only be deprived of liberty if we have

broken the law, or have a mental disorder and need care or treatment.

Deprivation of liberty only legal if it has legal oversight and person can appeal.

DOLS should usually only be used if the Mental Health Act cannot be used.

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How can Dols be Authorised? The care home or hospital (Managing Authority)

makes an application to the local authority (Supervisory Body).

West Sussex has a Dols Team. Your application will be assessed by their qualified Best Interests Assessors and by specially qualified doctors.

The Supervisory Body decides whether to authorise the DOL, how long it could last, and what conditions might apply.

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What happens if you don’t make an application

If someone is deprived of their liberty, but it is not authorised through the Mental Health Act, or through Dols, then the person is unlawfully detained.

There will be a safeguarding investigation.

The person could seek damages.

The supreme court judgement

Cheshire West and Cheshire Council v P.

P and Q v Surrey Country Council (otherwise known as MIG and MEG)

‘The Acid Test’

In cases where there is no valid consent to the livingarrangements, the twin ingredients of a deprivation ofliberty are that the person is:

under continuous control and supervisionandnot free to leave

And the care needs to be imputable to the state.

The following factors are not considered to be relevant:

● The person’s compliance or lack of objection.

● The relative normality of the placement.

● The reason or purpose behind a particular placement.

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What must you consider? Does the person lack capacity to decide

where they should receive care and treatment?

Is it in their best interests to keep them there?

Is there a less restrictive option? Have you consulted family and friends? Have you talked it through with the

Dols Team?

Deprivation of Liberty in the Community If care is resulting in a deprivation of liberty

outside of a hospital or a care home, consideration needs to be given as to whether this care can be provided in a less restrictive way, so the person is no longer deprived of their liberty.

If the care is imputable to the state and the deprivation is necessary then this needs to be authorised by the Court of Protection.

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What should you do? If you need to apply immediately, send us an

Urgent Application (Form 1) to hold the person for 7 days whilst we assess. You must also send a Standard Authorisation Request (Form 4).

Never put it in the post! Always Fax or Email. Dols Team Contact Details Phone 03302 223691 Fax 01903 839786 Email Dols@westsussex.gov.uk

Case Studies

Case Study - AdmissionsYou manage a large home for people with dementia. You are contacted by Jim whose father has just been admitted to hospital. His father provides some care for his mother. Jim is concerned his mother cannot cope alone and wants to drop her off at your home this afternoon. He suggests that this care may need to become permanent because his father was struggling to cope anyway. What do you do?

Case Study - RestraintLouise has dementia and she can become aggressive when staff try to support her with personal care. The senior carer, who knows Louise, well gently holds Louise’s hands whilst the other carer supports her.

The staff ask you for advice about whether this is ok. What advice to you give?

Section 6 of the MCAAllows for restraint as long as-●It is necessary to restrain in order to protect the person themselves from harm and:●It is a proportionate response to the likelihood of the person suffering harm and the seriousness of that harm● Restraint must not amount to a deprivation of liberty

Section 5 of the MCA Provides protection from liability in

connection with care and treatment where that care and treatment would otherwise be an assault if the person had capacity to consent to refuse the care.

In order to use section 5 you must have assessed the person as lacking capacity. The act concerned must be in the persons best interests as identified using the best interest check list.

Recording Detailed recording is key Staff must be satisfied that the person does

not have the capacity to consent to the care or treatment involved.

The assessment of capacity must be recorded in the file.

The elements of the decision need to be recorded, what was the decision, what has the decision maker taken into account etc. in accordance with the best interest check list and how was the final decision made.

Case Study – Fluctuating Capacity

Walter, who has depression, is admitted to the care home from hospital. He was assessed as lacking capacity on admission. Over time Walter starts to experience lucid passages during which he expresses relief at being in the home. It is thought that at times he has capacity to make decisions about arrangements for his care and treatment. Should you apply for a DoLS?

Case study – Article 8Sally has a learning disability and has lived in the care home for 6 months. It is a Saturday. You receive a phone call from Sally’s father who states he is coming to get her. He objects to her being in the home. Your are aware there were previous safeguarding concerns and you are worried about him removing Sally.

What do you do?