The Mental Capacity Act – Nothing to do with us?

1. The Mental Capacity Act – Nothing to do with us? Sue Garwood Housing LIN Dementia Lead

2. Do these sound familiar? • Property and person falling into neglect; beginning to hoard; obstacles in home hazardous; frequent flooding • Refusing access to contractors • Allowing strangers into the home to undertake unnecessary work • Insistence that rent has been paid when it hasn’t or a hitherto regular payment falling into arrears • Someone with declining cognition , memory problems etc in desperate, obvious need of care or support but refusing referral • Grandson visiting and helping himself to money, apparently with the agreement of his cognitively declining grandfather • Distressed individuals slamming doors, shouting and causing fear and anxiety amongst other occupants • Man with learning disability “befriended” by “mates” allowing property to be used for drug and alcohol consumption – tenancy under threat

3. What might these signify? • All have in common a need to take a closer look. Could be • Mental illness • Addiction • Domestic violence • Coercian or con-man • “Just” anti-social behaviour • And/or, there could be capacity issues • Example of person who desperately needs care but refuses referral to local authority for an assessment. If sufficiently concerned you may decide to override consent. • In effect you are making a judgement that this person fails to understand the implications or consequences of the decision not to accept help. • Which brings us to the Mental Capacity Act

4. MCA empowers as well as safeguards • Empowers individuals by: • Maximising decision-making capacity, genuinely involving as far as possible and enabling managed risk • Giving power to make advance decisions e.g. re treatment • Giving power through LPAs to appoint someone of own choosing to make decisions if capacity to do so lost in the future • Empowers staff (and family) • To act on behalf of individual with certain caveats • To be involved in best interest decision-making if they know individual • But with power comes responsibility.....

5. What the Act does • Provides the legal framework for acting and making decisions on behalf of adults who lack capacity to make some decisions for themselves • Enables people to plan for a time when they may lack capacity • Act applies to everybody who has dealings with people who may lack capacity, and particularly if they have a professional relationship with the person.

6. Code of Practice • Provides detailed guidance on implementing the Act • Has statutory force – people who are legally required to “have regard” for the code include anyone “being paid for acts for or in relation to a person who lacks capacity” – this includes housing staff • Informal carers “should follow the guidance in the Code as far as they are aware of it”

7. “Professionals and other staff need to understand and always work in line with the Mental Capacity Act. They should use their professional judgment and balance many competing views. They will need considerable guidance and support from their employers if they are to help individuals manage risk in ways that put them in control of decision-making.” Draft statutory guidance to the Care Act

8. Five Key Principles • A presumption of Capacity – every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise • Supporting individuals to make their own decisions – a person must be given all practicable help before anyone treats them as not being able to make their own decisions • Unwise decisions – just because an individual makes what might be seen as an unwise decision, they should not be assumed to lack capacity to make that decision • Best Interests – an act done or decision made under the Act for or on behalf of a person who lacks capacity must be done in their best interests • Least restrictive option – anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms Will return to these later

9. Meaning of Capacity • A person who lacks capacity is “a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken” • It is decision-specific – so for example someone might well have the capacity to decide what they’d like for breakfast but not to sign a tenancy agreement • It is time-specific – People with certain conditions fluctuate in their level of mental functioning; also applies to people who are temporarily unconscious; so whether or not they have capacity to make a particular decision can only be assessed at the time they are being asked to make the decision.

10. Two stage Test of Capacity 1) Functional test: • Can the person absorb basic information about the pros and cons of an issue, simply communicated? • Can the person retain the information for long enough to process it? • Can the person be said, objectively, to be weighing up the pros and cons against their own (subjective) value system and arriving at a decision? • Can they communicate it somehow? 2) Diagnostic test: • If the answer to any of the above is no, is this because of an impairment or a disturbance in the functioning of the mind or brain? (doesn’t have to be permanent) • If so, you no longer presume capacity. • Their “decision” is merely a preference, and if, in acting upon it, the person comes to harm which could have been anticipated, those with a duty to care could be deemed negligent.

11. Who assesses capacity? • Everybody who works with people who may lack capacity has a responsibility to assess capacity in relation to what they do with the person. e.g. • Do you override consent and make a referral to ASC? • When signing up a new tenant • May not always – or indeed often – mean formally applying the two-stage test, but you need to apply when necessary and if uncertain get a second opinion.

12. What if you’re uncertain? • The more complex or serious the decision, or the greater the potential consequences, the more important it becomes to be sure about capacity • Lacking confidence is no justification for ignoring signs of possible incapacity – Why? Because the action you should take will depend on the outcome of the test of capacity * • If in doubt, you would need to consult someone else. Who would depend on the issue, and sometimes a multi-disciplinary approach may be best. • A solicitor in relation to Power of Attorney or signing legal documents • A surgeon in relation to informed consent for an operation • The local authority in relation to care or safeguarding issues • Some decisions require a formal assessment of capacity (e.g. making a will or signing a legal document) • Be prepared to challenge – some “experts” may not be as expert as they should be

13. Presumption of capacity • No-one can be labelled incapable simply because they have a particular diagnosis or medical condition – say a learning disability or dementia • Nor is there a blanket state of incapacity – too often you hear people say “Mrs Y lacks capacity” without connecting to a particular act or decision • e.g. not believing someone with dementia

14. The SCR concerning Mrs JT (Dorset,-2013) ‘.....the principle of presumption of capacity seemed to be followed without question. JT’s decision making was clearly problematic and she made a number of decisions (refusals of care, medical examination, admission to hospital) which left her vulnerable. This should have led to questions about her mental capacity rather than those refusals being constantly taken on face value’ (para.5.8.3).

15. Supporting individual to make own decision • How might you do this? • Select a time when individual more likely to be lucid – patient with dementia • Try again another time - maybe sobered up • Select a suitable place to talk • Don’t rush and give information in bite-size bits • Use communication aids like pictures • e.g. Discussing options for rent payment

16. Unwise decisions • We all know people who make some peculiar choices • What is sensible or rational is very subjective • e.g. people choosing to carry on living an isolated existence when they are at great risk and have the option to move

17. Best interests • More significant the decision the more formal this process should be see Code of Practice p 64. • Whether formal or informal, key principles: • Involve individual as far as possible • Consult and involve people who know individual • Identify all relevant issues and circumstances • Use past knowledge of individual • Minor: Moving a rug that curls up and catches a walking frame • Major: whether to move into extra care housing or care home – formal and may involve IMCA • Important to keep accurate records

18. Least restrictive option • Often a range of options – Take example of someone unsafe to go out on own because at risk of getting lost. Could/should they • be accompanied by someone? • be persuaded to stay in • wear a GPS locating device? • be physically restrained by locking them in? • Must be assessed on individual basis

19. Deprivation of Liberty • New supreme Court definition of deprivation of liberty • Is person subject to continuous supervision and control • Is person free to leave – compliance or lack of objection is irrelevant • Depriving someone of liberty without their capacitated consent is unlawful without authorisation • Deprivation of Liberty Safeguards (DoLS) brought in from Oct 2008 apply to care homes and hospital, not housing • For sheltered and ECH would need authorisation from Court of Protection • House of Lords has recommended extending DoLS to supported living

20. Protection when acting for someone with incapacity • People who look after and act on behalf of someone who becomes incapable of giving consent, can continue to fulfil that role within certain constraints without fear of liability. • So for example, housing staff or family could: • Arrange services, e.g. Repairs, personal care, meals provision • Undertake acts associated with a change of residence, e.g. house moving and clearing – e.g. of Ryan O’Reilly • For this protection to apply, the act needs to be • Necessary,proportionate and the least restrictive option • in the person’s best interests • Any restraint must be “necessary to prevent harm to the person” and must be proportionate to the likelihood of the harm and its seriousness.

21. Who can act for a person who lacks capacity? • Family and other informal carers • Staff paid to work with the person – e.g. care workers, ambulance staff and housing staff • Public authorities – e.g. health and social care professionals • The holder of a Lasting Power of Attorney or existing Enduring Power of Attorney • IMCAs • A Court appointed deputy (formerly receiver) • The Court of Protection

22. Signing and terminating tenancies • A tenancy is a legal estate in the land, as well as a contract • It is not lawful to knowingly get a person lacking capacity to sign it, but if they do it remains valid • Tenancy agreement does not have to be signed but may be concerns if it is not. • If it is, it must be signed by someone who has the necessary legal authority e.g. property and affairs LPA • See Court of Protection Guidance http://www.housinglin.org.uk/pagefinder.cfm?cid=8433

23. Quiz answers • Any questions? • Case study if time • See also tips for housing providers on handouts

24. Thank you! C/o EAC 3rd Floor, 89 Albert Embankment London SE1 7TP email: info@housinglin.org.uk tel: 020 7820 8077 website: www.housinglin.org.uk Twitter: @HousingLIN