The Mental Capacity Act 2005

1. The Mental Capacity Act 2005 Practitioner Level

2. Housekeeping Fire Procedure Smoking Toilets Breaks Finishing Time Mobile Phones / Devices

3. Training Transfer Getting learning into practice • “50% of learning fails to transfer to the workplace” (Sak, 2002) • “The ultimate test of effective training is whether it benefits service users” (Horwath and Morrison, 1999)

4. Training Transfer

5. Introductions • Name • Place and nature of work • What do you want to get out of today’s session?

6. Outcomes • Undertake mental capacity assessments in relation to high risk, complex or safeguarding situations • Balance risk and rights where unwise decisions may be being made • Know when to involve others e.g. Independent Mental Capacity Advocate, Court of Protection, Office of the Public Guardian, Safeguarding & Deprivation of Liberty Safeguards Teams • Know where to go for information and advice

7. Ground Rules Safeguarding is a dynamic world and we continue to learn about how to prevent people from being harmed on both a strategic / organisational level and as individual practitioners. Safeguarding is about partnership, it is not about blame. All agencies and individuals need to take responsibility, to reflect and learn to safeguard people who may be vulnerable.

8. Ground Rules Confidentiality within the group will be respected but may need to be broken if a disclosure of unsafe practice, abuse or neglect is made during the course – this will usually be discussed with you first.

9. What is Duty of Care?

10. What is ‘Duty of Care’? • Landmark Scottish case in 1932 established the original ‘duty of care’ principle “...you must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.” (Lord Atkins, p580, Donaghue v Stevenson,1932)

11. Organisational v Individual Risk Health & Safety at Work Act (1974): Organisation has responsibilities towards staff, visitors and service users in relation to equipment, hazardous substances, buildings and procedures and practices. Mental Capacity Act (2005): Organisation has a responsibility to: • assess a service user’s capacity to make decisions (i.e. to understand the risks and benefits of their choices) • support them to make those decisions and manage those risks • make best interest decisions to protect those who lack capacity to understand or manage those risks

12. Duty of Care means..... • All reasonable steps have been taken • Reliable assessment methods have been employed using information which has been proactively gathered and methodically analysed • Decisions have been recorded and acted upon • Adherence to agency policy and procedures is evident Kemshall, 2003

13. Protection from Liability (Section 5) If a person has capacity to understand the risks they are taking, this is their decision and their risk – you will be protected from liability if you have done all you reasonably can to support them with understanding and managing those risks – even if the person comes to harm. If you make a best interest decision for a person lacking capacity, the Mental Capacity Act protects you from liability if you reasonably believed that you were acting in the person’s best interests - even if the person comes to harm. Good record keeping is essential.

14. Record keeping Recording needs to be proportionate to the situation Day to day decisions / choices and complex, high risk decisions will require a slightly different approach All assessments of capacity must be recorded where the person is making an ‘unwise decision’ or there is risk of harm. A formal record of the assessment should be made where there is risk of significant harm or there is disagreement about a person’s capacity to make a decision.

15. Scope of the Act Any person (paid or voluntary) who ‘has care of’ a person who may lack the ability/capacity to make some decisions has a duty to follow the Code of Practice that accompanies this Act.

16. “Capacity… …refers to our ability to make competent decisions determining our life choices. It is based on the assumption that the State does not seek to intervene unnecessarily in the life of its citizens and will therefore not interfere with the choices anyone makes, provided that they are lawful choices. In other words, by and large, provided you do not choose to break any laws, the State will not assume any authority to take control of the decisions you make, no matter how unwise they may seem to others.” Hothersall, Maas-Lowit and Golighley, 2008

17. The MCA “Process” Is there a concern about a persons capacity ? (with regard to a specific decision) Undertake a Capacity Assessment Or Their own decision Best Interest (even if we think it is unwise)

18. Principle 1: A person must be assumed to have capacity unless it is established that they lack capacity. • Principle 2: Individuals must be supported to make their own decisions • Principle 3: People have the right to make what others might regard as an unwise or eccentric decision

19. Who Undertakes Assessments? All staff and carers must undertake mental capacity assessments appropriate to their role. It will depend on the decision. So in the case of medical treatment it is the doctor, If nursing care, it is the nurse, If day to day care, it is the care giver If a social care decision, it is the social care professional etc

20. Assessing Capacity • Can the person understand the information relevant to the decision to be made? • Can the person remember the information at the time the decision needs to be made? • Can the person use or weigh up the information in order to make the decision? • Can the person communicate their decision (by talking or any other means)?

21. If the answer to all of these four questions is yes then the person is deemed to have the capacity to make the decision in question. Understand Retain Weigh up Communicate If the person has capacity, they have the right to choose what will happen. If the answer to any of these four questions is no then the person is deemed to lack the capacity to make the decision in question. If the person doesn’t have capacity, ensure that the best interest decision making process is followed. Continue to involve the person as much as is possible. Assessing Capacity

22. Case Study - Sharon

23. Planning your assessment • What concerns has Sharon’s mother raised? • What is the specific decision to be taken? • What could you do to ensure Sharon is given every opportunity to make her own decisions?

24. Planning Your Assessment What is the ‘relevant information’ when assessing whether a person has capacity to decide where they will live?

25. Your Role What issues commonly arise in relation to assessing capacity in your work?

26. Planning Your Assessment How will you assess whether someone is able to: • Understand the information? • Retain the information long enough to use it to make an effective decision (i.e. now or at the time it needs to be made)? • Use or weigh the information as part of the decision making process? • Communicate her decision?

27. “Experience… …is the name everyone gives to their mistakes.” Oscar Wilde, 1854-1900

28. The Next Step When you meet with Sharon she’s really positive and seems very happy. She’s keen to tell you that she and Steven – the man with the black hat - are going to go to the ‘next step’. What do you need to establish? What does the legal framework state about capacity to enter into sexual relationships?

29. Capacity to Consent to Sex(in general) Low level of capacity needed: • Mechanics of the act • Whether to give or withhold consent • Health risks - STIs • Pregnancy

30. Capacity to Consent to a Relationship (with a specific person) What specific issues are there? • How old is the person? • Is the person a care worker? • Does the person believe the person is someone else? • Is the person a known sexual or violent offender or a perpetrator of domestic abuse?

31. Is It Sharon's Choice? When you next meet Sharon her mood seems to have changed and she’s not as engaged with you. Eventually she tells you that Steven is pressurising her to have sex with him. What do you need to establish?

32. Consent is based on choice. Consent is active not passive. Consent is possible only when there is equal power. Forcing someone to give in is not consent. Going along with something because of wanting to fit in with group is not consent ..... If you can’t say ‘no’ comfortably then ‘yes’ has no meaning. If you are unwilling to accept ‘no’ then’ yes’ has no meaning. Adamas and Fay (1984)

33. ‘Unwise’ decisions • Ensure capacity is properly assessed and recorded – is specialist input required? • Review capacity assessment if more evidence comes to light • Ensure any remaining risks and options are clearly communicated to the person (in writing) and their reactions to these recorded • Inform them of the open door policy

34. ‘Unwise’ decisions • Get support: Manager/Multi-agency approach • Put safeguards in place: What can you do legally to monitor the situation/reduce the risks? • Seek advice: Safeguarding/MCA/Legal team • Consider Safeguarding Threshold for Self Neglect • Court of Protection welfare application to review capacity? • Inherent Jurisdiction of the High Court?

35. Best Interest Decisions Imagine Sharon lacks capacity to make a decision about where to live. When deciding what is in her best interests: • Who will you consult with? • What will you consider?

36. Best Interest Checklist • Assess whether the person will regain capacity • Encourage participation • Identify all relevant circumstances • Find out the person’s views (past and present wishes, feelings, values and beliefs; including any advance decisions to refuse treatment) • Consult others (is IMCA required?) • Avoid discrimination • Avoid restricting rights • Don’t be motivated by a desire to bring about the person’s death

37. Summary • A person centred risk assessment will focus on the outcomes the person wishes to achieve – what might be done to help and what obstacles may be removed • You are not responsible for other people’s decisions but you must show what you did to alert a person to the dangers they face and what you did to assist them to manage them • A capacity assessment may need to be undertaken to ascertain a person’s ability to understand and manage those risks • If a person lacks capacity to make a particular decision, a decision will need to be made in their best interest • When making decisions for others you must be able to show what you did and why you did it

38. Helpful Tool www. ehealthtracker.co.uk

39. Any Questions?

40. Evaluation forms