Mental Capacity Act Conference

1. Mental Capacity Act Conference • Mental Capacity Act Team

2. House keeping • Mobile Phones / taking calls • Fire Alarm • Smoking • Breaks • Feedback

3. Aims and Objectives Assessing Capacity An understanding of the process of assessing capacity and the thresholds for decisions The practical skills needed to assess capacity How to ensure appropriate record keeping Best Interest Decisions An understanding of the process of making Best Interest Decisions Who needs to be involved in Best Interest Decision making The practical skills needed to assess Best Interests How to ensure appropriate record keeping Deprivation of Liberty Safeguards Depending on which sector you are in, you will have an understanding of what Deprivation of Liberty Safeguards is Your role, what information is needed and the tools and contacts to complete this whether that is applying for a Deprivation of liberty Safeguards or going to the Court of Protection.

4. Morning Session • 09.00 - 09.15 - Sign in and tea and coffee • 09.15 - 09.30 – Welcome and Introduction • 09.30 - 10.20 - Assessing Capacity • 10.20 - 11.10 - Best Interests • 11.10 - 11.20 - Break • 11.20 - 12.20 – Deprivation of Liberty Safeguards • 12.20 - 12.30 - Summing up and Conclusion

5. Assessing Mental Capacity Workshop • MCA Team • County Hall, Dorchester

6. Aims and Objectives • An understanding of the process of assessing capacity and the thresholds for decisions • The practical skills needed to assess capacity • How to ensure appropriate record keeping

7. Five Statutory Principles of the Mental Capacity Act A person must be assumed to have the capacity unless it is established that they lack capacity. A person is not be treated as unable to make a decision unless all practicable steps to help him/her to do so have been without success. A person is not to be treated as unable to make a decision merely because he/she 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/her Best Interests. Before the act is done, or the decision is made, regards 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.

8. The role of the statutory principles? The statutory principles aim to: protect people who lack capacity and help them take part as much as possible, in decisions that affect them. assist and support people who may lack capacity to make particular decisions, not to restrict or control their lives. They apply to any act done or decision made under the Act. When followed and applied to the Act’s decision-making framework, they will help people take appropriate action in individual cases. They will also help people find solutions in difficult or uncertain situations.

9. The Standard Test for Capacity • Does the person have an impairment of, or disturbance in the functioning of the mind or brain? • Does the impairment or disturbance mean the person is unable to make a specific decision when they need to? • This doesn’t have to be a clinical diagnosis, it can be: • Permanent or temporary • Could be a result of illness • Drugs or alcohol • Injury • Condition such as Alzheimer's, brain injury or • Learning disability

10. To have capacity to make a decision a person must be able to: Understand the information relevant to the decision (including the reasonably foreseeable consequences of making or not making the decision) and Retain that information (long enough to make the decision) and Use or weigh the information (as part of the decision making process) and Communicate the decision (in any recognisable way)

11. Failure on any one point means the person lacks capacity to make the specific decision

12. Who carries out Capacity Assessments? There are no specific qualifications for assessing capacity. It could be someone who knows the person well For example, a Social Worker, Doctor, Nurse, OT, Psychologist, Physiotherapist or Carer Where appropriate someone with specialist skills i.e. speech and language therapist The decision maker would need to be satisfied (on the balance of probability) that the person has or has not got capacity • The Court may require a specified professional such as a Doctor, Social Worker and Psychologist to do the assessment

13. What skills and knowledge do you need? • Knowledge of recent events • An understanding of the decision that needs to be made and the reasonably foreseeable consequences, risks and benefits of the decision • Know something about the person and the issues • Use effective communication skills • Be prepared for this to take time to do it properly • Do your homework

14. Capacity Assessment Time specific An Assessment of capacity must be time specific. Does the person have capacity to make the decision at the time the decision needs to be made? Decision specific An assessment of capacity relates to a specific decision that has to be made and is not about a general ability to make decisions.

15. Emotional & Psychological Factors A depressed person, for example, may give little weight to the risk of death in not receiving treatment for a physical illness, because he/she does not put much value on carrying on living. A patient with anorexia may refuse treatment, not because they fail to understand the risk of death, nor because they want to die, but because they value remaining thin to such an extent that they would prefer to risk death, rather than put on weight. The MCA Code of Practice (4.2.2) briefly discusses anorexia and suggests that a person may have a ‘compulsion not to eat’ that is too strong to ignore and (by implication) that they therefore lack the ability to weigh up the information and so lacks capacity.

16. Common Questions What if a person does not know the reality of making a particular decision, for example to live in a Care Home when they have never lived in one before? How do you know if a person has really understood? What happens if someone gives different answers to the same decision at different times? What do you do if someone makes a decision and then forgets it half an hour later?

17. Common Questions cont’d What if a person understands risks and recognises the consequences of their decision but does not accept that it will actually happen to them? What if someone is in denial about their illness? What if their capacity fluctuates?

19. Case Study - What is the health and social care issue that needs a decision? • Decision: Managing a diabetic diet… • Background: A Lady who has dementia likes to eat cake but doesn’t remember what she has eaten and is having 6 cakes a day. She has diabetes so this is bad for her kidneys and makes her drowsy. • What are the benefits and disadvantages of her eating cake? • Apply the 5 principles to the question.

20. Five Statutory Principles of the Mental Capacity Act A person must be assumed to have the capacity unless it is established that they lack capacity. A person is not be treated as unable to make a decision unless all practicable steps to help him/her to do so have been without success. A person is not to be treated as unable to make a decision merely because he/she 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/her Best Interests. Before the act is done, or the decision is made, regards 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.

21. Case Law – using and weighing (KK v local authority 2012) “There is a real danger that in assessing KK's capacity, professionals and the court may consciously or subconsciously attach excessive weight to their own views of how her physical safety may be best protected and insufficient weight to her own views of how her emotional needs may best be met.” Someone may lack the capacity to understand and weigh up every nuance or detail, but do they understand the salient issues?

22. “Likewise, I consider her frank observation that "if I fall over and die on the floor, then I die on the floor" demonstrates to me that she is aware of, and has weighed up, the greater risk of physical harm if she goes home. It is not an unreasonable view to hold. It does not show that a lack of capacity to weigh up information. Rather it is an example of how different individuals may give different weight to different factors.” “Whilst KK may have underestimated or minimised some of her needs, she did not do so to an extent that suggests that she lacks capacity to weigh up information.”

23. “I remind myself again of the danger of the "protection imperative" (identified by Ryder J in Oldham MBC v GW and PW ). These considerations underpin the cardinal rule, enshrined in statute, that a person is not to be treated as unable to make a decision merely because she makes what is perceived as being an unwise one”

24. In Conclusion • We are not asked to be right, • we are asked to be reasonable. • We don’t have to be sure, • it simply has to be more likely than not that the person does or does not have capacity.

25. Can you identify what PLUMB stands for? • P- Presumed capacity. • L - Least restrictive interventions. • U - Unwise decisions allowed. (If person has capacity for decision) • M - Maximising capacity. • B - Best Interests. PLUMB

26. Five Statutory Principles of the Mental Capacity Act A person must be assumed to have the capacity unless it is established that they lack capacity. A person is not be treated as unable to make a decision unless all practicable steps to help him/her to do so have been without success. A person is not to be treated as unable to make a decision merely because he/she 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/her Best Interests. Before the act is done, or the decision is made, regards 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.

27. Aims and Objectives • An understanding of the process of assessing capacity and the thresholds for decisions • The practical skills needed to assess capacity • How to ensure appropriate record keeping

28. Making Best Interests Decisions • MCA Team • County Hall, Dorchester

29. Aims and Objectives An understanding of the process of making Best Interest Decisions Who needs to be involved in Best Interest Decision making? The practical skills needed to assess Best Interests How to ensure appropriate record keeping

30. Can you remember the principles?

31. Five Statutory Principles of the Mental Capacity Act • A person must be assumed to have the capacity unless it is established that they lack capacity. • A person is not be treated as unable to make a decision unless all practicable steps to help him/her to do so have been 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/her Best Interests. • Before the act is done, or the decision is made, regards must be had to weather 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.

32. Quick fire best interest decisions Mable has been a life long vegetarian and but over the last couple of months has taken a liking to jelly babies which have a meat product in them. Mable has dementia and lives in care home. Her daughter is very unhappy about this and asks that she is stopped from eating jelly babies? What would you do?

33. Quick fire best interest decisions contd Mildred and George live at home, Mildred has dementia and George is her carer but he is physically quite frail. Mildred has always been for a walk every day but George is no longer able to go with her. They live in a rural area with no pavements. Should Mildred still be going out in this way on her own?

34. Quick fire best interest decisions Luke has a learning disability he lives in supported accommodation. His brother has recently got a tattoo and Luke would like to have one. Should he be prevented / allowed to have one?

35. Quick fire best interest decision making cont’d Peter has an acquired brain injury he lives in his own accommodation with support going in three times per day plus some support from his family. He goes out for a drink once a week to the pub where he meets up with friends. He tends to get very drunk, he will fall over, he has lost his wallet and been sick. Should he be prevented from going out in this way?

36. What does the Act mean by Best Interests? The term ‘Best Interests’ is not actually defined in the Act. This is because there are so many different types of decisions and actions covered by the Act, and so many different people and circumstances are affected by it. The Best Interests Checklist is a list of common factors that must always be considered by anyone who needs to decide what is in the best interests of a person who lacks capacity. When working out what is in someone’s best interests decision makers must take into account all relevant factors that would be reasonable to consider not just what they think are important. They must not act or make a decision based on what they would want to do if they were the person who lacked capacity.

37. Check list: • In determining what is in a persons Best interests the person making the determination must not make it merely on the basis of:  • the persons age or appearance or • a condition or aspect of his behaviour • The decision maker must consider all the relevant circumstances and he must consider whether it is likely that the person will at some time have/regain capacity and when?

38. Section 4: Mental Capacity Act Best Interests • The decision maker must take all reasonable and practicable to encourage the person to participate, or improve her ability to participate as fully as possible in decision making(Principle 2). • When the decision relates to life sustaining treatments the decision maker must not be motivated by the desire to bring about death.

39. Section 4: Mental Capacity Act Best Interests • You must consider, so far as is reasonably ascertainable: • the person’s past and present wishes and feelings (and in particular any written statements made by her when she had capacity) • the beliefs and values that would be likely to influence her decision if she had capacity • other factors that she would be likely to consider if she was able to do so

40. Doing what the person wants is vitally important Most people still know what they want even if they don’t have capacity to understand the full consequences If someone wants to do something then we should be facilitating it, if at all possible. This should be our starting point and there have to be compelling reasons and evidence to do anything other than this.

41. Check list cont’d • The decision maker must take into account if it is practicable and appropriate to consult them, the views of: • anyone named by the person as someone to be consulted on the matter in question • anyone engaged in caring for the person or interested in his welfare • any donee of a lasting power of attorney granted by the person and • any deputy appointed for the person by the court, as to what would be in the persons Best Interests. • Any IMCA appointed to represent the person

42. You MUST consult! You must still consult with people even if they hold views you don’t agree with or where there are difficult relationships with professionals.

43. Exclusions from Best Interests Decisions • Consenting to marriage or a civil partnership • Consenting to a sexual relationship • Consenting to a decree of divorce on the basis of two years separation • Consenting to a dissolution of a civil partnership • Consenting to a child being placed for adoption of making an adoption order • Discharging parental responsibility for a child in matters relating to the child’s property • Giving consent under the Human Fertilisation and Embryology Act 1990 • Mental Health Act matters (Section 28) • Voting on behalf of someone

44. Unlawful killing or assisting suicide (Section 62) • For the avoidance of doubt, nothing in the Act is to be taken to affect the law relating to murder, manslaughter or assisting suicide.

45. Form B ugly form

46. Summary and outcome of Best Interests Assessment

47. Case Law from the Court of Protection 2014 Westminster City Council V Manuela Sykes Ms Sykes is by nature a campaigner and a fighter who has been involved in many moral, political and ideological battles in her life. Now aged 89 she is living with dementia. In 2006 she made a living will prioritising the quality of life over prolongation. She stated that she would wish to remain in her own home for as long as possible. She set up a LPA for Finances with a friend. October 2013 Detained Under Section 2 MHA Self neglect, severe weight loss, unhygienic and hazardous living conditions, wandering and not accepting of care. December 2013 Discharged to a nursing home and Deprivation of Liberty Safeguards applied. Her health improved. The LPA felt that she should be given the chance to go home but he thought that it would fail. There were concerns about the distress a failed trial at home may cause her. Application to CoP District Judge Eldergill supported her wish to return to her own home for a trial period. He acknowledged that the trial may well fail that’s the point of a trial. “the local authority should be her servant, not her master” Judge Eldergill 2014

48. Case Law Essex County Council v RF & Ors (2015) P 91 year old gentleman, retired civil servant, served as a gunner with RAF has lived alone since 1998 with his cat Fluffy. P has dementia and other health problems including mobility problems and delirium and kidney injury caused by dehydration. May 2013 P was removed from his home by the local authority and placed in a locked dementia unit. It was clear that he lacked capacity at the time There was no evidence of a proper best interests decision The local authority were ordered to pay £60,000 in damages to P in compensation for illegally depriving him of his liberty. If it had not been for the unlawful actions of the local authority P would have continued to live at home with support arrangements in place. Where was the quality and balanced best interest decision making?

49. Case Study • Gordon has an acquired brain injury and a diagnosis of COPD (Chronic Obstructive pulmonary disease) • He was living at home but had several hospital stays due to reoccurring chest infections and pneumonia, he is now in a care home. • Gordon is a lifelong smoker, in the care home he has continued to smoke outside in a wheelchair (assisted by the staff). • His family don’t want him to smoke however they do concede he has been a life long smoker and when he knew what the risks were he didn’t care. • Gordon lacks capacity to make a decision about smoking now. • What are the pros and cons of him smoking? • Who could be consulted? What do you conclude?

50. Balance Sheet Approach