Safeguarding Networking Event

Safeguarding Networking Event Back to Basics: Mental Capacity Tuesday 25 February 2014

Back to Basics: Mental Capacity Act 2005 Awareness of Human Rights, Safeguarding Adults and the use of the Mental Capacity Act 2005 Maria O’Connell – Mental Capacity Act Professional Lead

Human Rights Act 1998 • The HRA 1998 applies to all Public Authorities • Article 2- The Right to Life • Article 3-The right to freedom from torture and degrading treatment • Article 5- The Right to Liberty • Article 8- The right to respect for private and family life & correspondence.

Article 5 ECHR • No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law EG • Relating to a criminal offence. • Mental Health Act • Immigration Laws • Deprivation of Liberty Safeguards

Autonomy, Freedom , Independence & Unwise Decisions • Human nature and behaviour is not exclusively rational. • We have freedom to make decisions and choices which may be for the better or for the worse. • We enjoy free will and as result have personal responsibility for those decisions. • So why is it that these unwise decisions are not as readily acceptable for individuals who are deemed as “vulnerable” by virtue or nature of their particular disability and/ or lack of capacity?

Background to MCA • The Common Law lacked consistency. • People’s Autonomy not always respected. • No Legal framework/ authority for people who act on behalf of a person lacking capacity.

Mental Capacity Act 2005 • The MCA 2005 affects people who are over 16 years old in England and Wales. The Act sets out clear safeguards to empower and protect a person who is assessed as not having mental capacity. The Act makes it clear that any assessment of a person’s capacity must be decision specific. • Assessment of capacity must be about a particular decision that has to be made at a particular time and is not about a range of decisions. • If someone cannot make complex decisions this does not mean they cannot make simple decisions • You cannot decide that someone cannot make a decision upon his/her age, appearance, condition, or behaviour.

MCA 2005- 5 KEY PRINCIPLES • Person is assumed to have capacity. A lack of capacity has to be clearly determined • Nobody should be treated as unable to make a decision unless all reasonable steps have been taken to assist them and shown not to work maximising capacity. • Nobody should be stopped from making a decision just because others think it may be unwise / eccentric. • Anything done for or on behalf of a person must be in their best interests. A decision is arrived at by working through a checklist. • When anything is done or decided for a person who lacks capacity it must take in to account their basic rights and freedoms. Any decision/action should show that the least restrictive option / intervention is achieved.

What does the act do? • It sets out a single test of capacity assessment which is decision specific covering emergency decisions, day to day decisions, and complex decisions. • Introduced a new criminal offence “Ill treatment and willful neglect”. • It allows for advanced decisions to refuse treatment. • Established the role of the IMCA service. • New Court of Protection. • Established Lasting Power of Attorney and Court appointed Deputy. • Office of Public Guardian.

What does the Act mean? • It puts in place a Code of Practice to give guidance. The code of practice must be followed by those working in a Professional capacity e.g. Social Workers, Dr’s Nurses, and Police Officers. • The Act offers appropriate protection for carer’s, as well as health and social care professionals, who act in the reasonable belief that they are doing so in the person’s best interest. They need to demonstrate that the principles of the MCA were followed.

MCA 2005 • Provides a statutory framework to empower and protect Adults and Young People who are not able to make decisions for themselves. • Codifies Common Law. • It makes it clear who can take decisions, in what circumstances and how this should be done. • It enables individuals to plan for the future for a time when they may lose capacity in relation to treatment. • Been in force since October 2007.

MCA 2005 Code of Practice • If you provide care and treatment or support to a person who lacks capacity you are legally obliged • “Have regard to the code.” • The Code has statutory force but is guidance not instruction. • Must be aware of the code when working with a person lacking capacity you cannot follow it by accident (by not knowing what is says). • Failure to comply with the code would be referred to in any criminal / civil proceedings.

What is meant by Mental Capacity? Capacity means the ability a person has to make specific decisions or take actions that influence their life this can be from very simple ( what to wear) to complex decisions (consent to medical treatment where to reside) Section 2 (1) of MCA states that “ A person lacks capacity in relation to a matter, if at the material time, he is unable to make a decision in relation to the matter because of an impairment of or a disturbance in the functioning of the mind or brain”

Impairment or disturbance could be caused by • Stroke or Brain Injury • Mental Health Problems • Dementia • Learning Disability • Confusion, drowsiness unconsciousness because of physical illness or treatment • Shock, Pain • Substance misuse (including Alcohol) • Anything else which may be causing an impairment or disturbance!

Assessing Capacity • There is now a 2 stage test you should follow • Stage 1 • Is there an impairment of or disturbance in the functioning of the person’s or brain? • It does not have to be permanent it can be temporary. • Stage 2 • Does the impairment or disturbance cause the person to be unable to make a specific decision at the time it needs to be made? • Being unable to make a decision is defined in the Act by considering these four factors • Understanding the information • Retaining the information • Weighing the information • Communicating the decision. – by verbal and/or non- verbal means. A nod / blink/ squeeze of a hand is communication! • If the disturbance in the person’s mind or brain is causing them not to do any of the four functions then they do not have the ability to make the decision in question.

Assessing Capacity • You cannot decide that a person lacks capacity based on their age, appearance, condition or behaviour alone. Assess never assume. • Assessments are made on the balance of probabilities. Is it more likely than not that they lack capacity to make that decision. Record your rationale/ reason. You as the assessor have “burden of proof”.

How is Capacity Assessed in your work place? • Who carries out an assessment? • What kind of decisions are people assessed for? • Who makes the decision?

Decision Maker • The person who assesses for capacity is usually the person who requires the decision to be made. Dr’s Nurses, Social Workers, care home staff, domiciliary care workers, and informal cares, LPA’s Deputies, Police officers, Judges. • More complex the decision there may be a need for an expert / specialist opinion to inform or may require a “Best Interest meeting” • Decisions could include residency, medical treatment, managing finances, what to eat / wear etc. • Carer’s both qualified and informal may need to assess capacity- but not expected to be an expert. Need to demonstrate they have a reasonable belief that they lack capacity.

Best Interest Checklist • There is a checklist that you must follow within the Act summarised as follows • Equal consideration and non-discrimination- Make no assumptions based on age, appearance ability etc. • All relevant circumstances- The information that the person making the decision is aware of and would be reasonable to consider as relevant. E.g. the best clinical / medical option given the persons condition prognosis. • Regaining Capacity- • Permitting and encouraging participation • The person’s wishes, feelings, beliefs, and values • The views of other people (professionals, family, carer’s, LPA’s Deputy appointed by the court.

New Criminal Offence (Section 44) • Willful neglect or ill treatment of a person who lacks capacity. • Punishable by imprisonment of up to 5 years and / or an unlimited fine. • Consider the impact and recognise accountability for your decision making and actions. • Police are already considering cases.

Protection from Liability • Have you applied the code? • You will be protected from liability from either civil or criminal penalties provided; • OBSERVED THE 5 PRINCIPLES • CARRIED OUT AN ASSESSMENT • REASONABLY BELIEVED THE PERSON LACKED CAPACITY • REASONABLY BELIEVE THE ACTION IS IN THE PERSON’S BEST INTERESTS

Rights v Risks Balancing Rights, Needs and Risks will always be a challenging process for workers. Positive Risk Assessment and Risk management is essential in safeguarding Adults in both promoting and protecting their Human Rights. Get to know the MCA Code!

Case Study: Annie Mandi Gay and Darren Richardson

Annie • Diagnosis of Alzheimer’s for five years • Now in advanced stage • Lodger for last ten years • Lodger is main carer (reluctant) and there is no other support in place • Crossing boundaries as friend • Lodger wishes to leave the property and move into his own place.

Alzheimer’s • Progressive illness • Most common type of dementia • Affects around 465,000 in UK • Loss of memory • Mood changes • Problems with communication and reasoning (Alzheimer’s Society, 2012)

Referral • Referral received through GP • GP felt Annie needed residential care • GP stated that he believed Annie would decline support and if she did he intended to have her removed by initiating MHA (1983) • Agreed to visit Annie and discuss concerns raised with her and the lodger.

Issues Raised During Visit • Visit to assess under s.47 of community care act (1990) and gain more information • Annie was 92 years old and had never married • Worked all her life on public transport and spent many years as a conductor before going into the offices and management

Issues Raised During Visit • Very independent woman and had authority in her job, reflected in her home life • Popular woman in the local area in younger days, though now isolated • Lodger reports a steady decline in cognitive function over recent years • No family members

Risks • Unable to show awareness of condition • Doubly incontinent • Needs all care anticipating • Nutrition needs not been met as lodger out much of the time • Drinks whiskey daily-facilitated unwittingly by the lodger • Chain smoker and does not dispose of cigarettes properly

Risks • Lives on 8th floor of a tower block • Poor mobility and unable to walk safely • Disoriented to time and place • Risk of sores and had sore on buttock • Isolation and dignity issues • No support in place • Unable to recognise importance of personal care and hygiene needs compounding skin tissue risks

Risks Where there is a difference of gender, race or class between social worker and service user, there seems to be a tendency to focus unduly on deficit and/or risk rather than on strengths and seeking to establish how peoples’ control over aspects of their own lives can be increased. (Milner and O’ Byrne, 2002, p36)

Annie’s behaviour posed significant risks to herself and others

Easy solution? • GP’s viewpoint was of diagnosis and treatment • Believed residential care to be solution to problem as a “quick fix” • Could be seen as a prescriptive viewpoint (one size fits all)

Easy solution? • Problem focused • Residential care would be solution to Annie’s circumstances • Accurate diagnosis allows prognosis • Can signal a cause to illness and look towards treatments • Not seen to recognise individuality

Avoiding ageist practice Rather than the specific medical or social issues that give rise to need being perceived as “the problem” it is old age itself which is seen as needing to be addressed and, as a consequence, the link in peoples’ minds between old age and decline is strengthened. (Thompson, 2005, p20)

Annie’s Viewpoint • Annie had lived in property for many years • Oriented to environment • Wished to remain at home (stated that she would never leave) • Was aware that lodger lived with her and felt that he was trying to have her removed • However, unable to ascertain her own needs

Lodger’s Viewpoint • No longer wished to be involved with care • Wished to leave the property as soon as possible • Role as friend/lodger had become blurred with that of carer • Respect for Annie had made him feel duty to continue • Carers assessment offered under Carers Act 1995/2004, but declined (tokenistic gesture?)

Social Model • Society disables individuals who are not of the majority • Places emphasis on environment and/or labelling; factors that often compound mental health difficulties • Systemic approach should be utilised in order to see the whole picture

Social Model • Providing opportunities increases quality of life and alleviates mental health difficulties • Model does not stigmatise and rests on foundation of equality • Promotes and works jointly with a strengths perspective • Not seen as a cure, but rather helps people manage difficult experiences

Mental Health Act • Annie was not suffering in nature or degree that warranted detention (MHA 1983) • Was at risk due to disorder and mental illness • Although she declined services, it was felt that she lacked capacity to make decision on her own well being needs and the likelihood of harm was high

Mental Capacity Act • Annie had impairment/disorder of the mind and brain • Capacity assessment carried out under s2-3 on MCA • Confirmed that she lacked capacity to support own well being needs • Unable to understand her situation, retain the information given in order to make decision or weigh and balance her options

Mental Capacity Act • Best interests discussed with both Annie and her lodger. Allowed reduction of power imbalances and promoted ADP • Felt that least restrictive principle could keep Annie in her own home • Services put in place at home rather than remove Annie from her property under s.5 MCA (2005)

Services Utilised/Partnership Working • Urgent package of care in place • Day centre implemented due to isolation. Previous community involvement and popular person • Continence support via continence nurse • Occupational Therapy referral • Assistive technology put in place (arguments that this infringes people’s Article 8 rights)

Services Utilised/Partnership Working • Referral to district nursing team for support with skin sores • Referral to memory services through GP with feed back that Annie would remain in her own home • Follow up visit jointly with CPN • Fire retardant blankets given by fire service due to risks with smoking. • Smoking restricted to times when Annie could be monitored. Annie complied with this.

Reducing risk? Many older or disabled service users…are more exposed to risk than others because more people have intimate access to them in their daily lives. There may be different homecarers coming into their private space every day, perhaps someone they don’t know coming in to wash, bathe and dress them. (Thompson, 2005, p53)

Outcome • Annie not too resistive of care and quickly adjusted to routine with encouragement and few restrictions. • Improvement in Annie’s emotional health observed • Maintenance of safety within the home • Monitoring of well being with care package in place • Lodger was able to move to another property • Annie remained in her own home

Thanks for listening

Kirklees and Wakefield Independent Mental Capacity Advocate (IMCA) Service Heather Walinets - Project Coordinator / IMCA Sarah Goodfellow –IMCA Katie Littlewood - IMCA

Independent Mental Capacity Advocate Service • April 2007 the Department of Health brought in the first part of the Mental Capacity Act 2005 - part of theAct made provision for a new statutory service called the ‘Independent Mental Capacity Advocate’ Service • ‘Together for Mental Wellbeing’ were awarded a 3 year contract by Kirklees and Wakefield Councils to provide their IMCA service. The contract was extended for 2 years and was further extended for a another 3 years • ‘Together for Mental Wellbeing’ now hold the contract until September 2015

The 5 Core 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 (do-able) steps to help them to do so have been taken without success • A person is not to be treated as unable to make a decision merely because they make 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 their 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.

Safeguarding Networking Event