Mental Capacity Act and Deprivation of Liberty

1. Mental Capacity Act and Deprivation of Liberty Hillingdon social work conference 22nd September 2011

2. 5 key principles Assumption of capacity Supporting people to make their own decisions The right to make unwise decisions Anything done for or on behalf of people must be in their best interests The least restrictive intervention

3. Key areas of competence • Supported decision-making • Pre-requisite for the rest of the Act • Assessing capacity • Whose responsibility? • Best interests decision-making • Complying with the checklist • Involvement of service user and others

4. Safeguarding and capacity? • What do they have to do with each other? • Choice and control • Ability to keep self safe from harm • Autonomy and risk-taking • Duty of care • Protecting vulnerable adults from harm • What does “vulnerable” mean? • Vulnerable ≠ incapacitated

5. Human rights? The importance of Article 8 ECHR Right to respect for private and family life We should not lightly interfere with family life The longer a person has been cared for by family or carer without State intervention, the more careful and cautious we should be Intervention only on the basis of the state providing a better quality of care

6. Individual and corporate risk • G v E (Manchester City Council) • Breach of Article 5 • Breach of Article 8 • GSCC (Philip Davies – social worker) • Signing financial papers when lacking capacity • Failure to follow up Ct of Protection application • Steven Neary • Breaches of Article 5(1) and 5(4) • Breach of Article 8

7. Rights and risk? “A consciously unwise decision will rarely if ever be made in P’s best interests.” Lewison J Re P [2009] EWHC 163 (Ch) “What good is it making someone safer if it merely makes them miserable?” Munby J Local authority X v MM [2007]EWHC 2003 (Fam)

8. DH briefing May 2010 • DoLS: Emerging practice issues • Choice of relevant person’s representative • Where deprivation of liberty identified but not authorised • Setting conditions and effective care planning • Involvement of Court of Protection in proposals of “no contact” with specific individuals • Where an authorisation fails to resolve a dispute

9. P and Q [2011] EWCA Civ 190 • Factors in identifying deprivation of liberty • Happiness [not relevant] • Objection • Of the individual (particularly involving medication), or • Of the carers or family • “Normality” of living arrangements • Wide “spectrum” of arrangements • Social contacts

10. Steven Neary • Breaches of Steven Neary’s rights • Article 8 EHCR • Keeping him away from home throughout the period • Article 5(1) EHCR • Unlawful DoL 05/01/10 to 23/12/10 (notwithstanding standard authorisations from 15/04/10) • Article 5(4) EHCR • Failing to refer matter to Ct of Protection before 28/10/10 • Failing to appoint an IMCA before 29/10/10 • Failing to conduct an effective review of assessments

11. Practice issues from Neary • Purpose of DoL authorisations and of the Court of Protection • “Significant welfare issues that cannot be resolved by discussion should be placed before the Court of Protection, where decisions can be taken as a matter of urgency where necessary.” • Decision-making • Importance of independence of decision-making • Responsibilities of the supervisory body • The importance of scrutiny of DoLS documentation

12. MCA as a route to… • Choice and control • Dignity in care • Safeguarding • Personalisation • Opportunity to focus on social work values • Reclaim the skill-set of adult social care