MENTAL CAPACITY ACT (MCA) 2005 & MCA DEPRIVATION OF LIBERTY SAFEGUARDS (DOLS) POLICY

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1 Directorate of Performance Assurance MENTAL CAPACITY ACT (MCA) 2005 & MCA DEPRIVATION OF LIBERTY SAFEGUARDS (DOLS) POLICY Reference: DCP098 Version: 1.4 This version issued: 21/04/15 Result of last review: Minor changes Date approved by owner (if applicable): N/A Date approved: 15/04/15 Approving body: Trust Governance & Assurance Committee Date for review: April, 2018 Owner: Wendy Booth, Director of Performance Assurance Document type: Policy Number of pages: 24 (including front sheet) Author / Contact: Jill Mill, Head of Risk Management Northern Lincolnshire and Goole NHS Foundation Trust actively seeks to promote equality of opportunity. The Trust seeks to ensure that no employee, service user, or member of the public is unlawfully discriminated against for any reason, including the protected characteristics as defined in the Equality Act These principles will be expected to be upheld by all who act on behalf of the Trust, with respect to all aspects of Equality.

2 Contents Section... Page 1.0 The Key Principles / Purpose Area Duties Mental Capacity Act Actions What is Capacity? Assessment of Capacity What is the test for capacity? Acts in connection with Care or Treatment What is Best Interests? Recording Assessment of Capacity & Best Interests Decisions Lasting Powers of Attorney (LPAs) Advance Decisions Independent Mental Capacity Advocates (IMCAs) Research Children Consultation and Disputes Deprivation of Liberty Safeguards Actions What is a deprivation of liberty? Factors to consider before seeking DOLS authorisation How is an application for authorisation made? Standard / Urgent Authorisations What Happens Next Authorisation turned down Authorised What restrictions exist on Authorisations? Printed copies valid only if separately controlled Page 2 of 24

3 5.9 Standard Authorisation review process What happens when an authorisation ends? External notification to the Care Quality Commission of DOLS Applications and Outcomes Death under a DOLS Authorisation Monitoring Compliance and Effectiveness Associated Documents References Definitions Consultation Dissemination Further Information and Training Available Equality Act (2010) Appendices: Appendix A - Overview of the deprivation of liberty safeguards process Appendix B - What should a managing authority consider before applying for authorisation of deprivation of liberty? Appendix C - Mental Capacity Act Best Interests Decisions Appendix D - Mental Capacity Act Assessment Of Capacity Printed copies valid only if separately controlled Page 3 of 24

4 1.0 The Key Principles / Purpose 1.1 The Mental Capacity Act 2005 (MCA) came into force in October The purpose of the MCA is to reform and update the law where decisions need to be made on behalf of incapable adults. 1.2 The MCA provides a legal framework for assessing capacity and making decisions about the care and treatment of adults who lack capacity. It also creates new protections and powers in respect of the decision making process. 1.3 Most patients can consent to being in hospital. Generally speaking capable patients (other than those subject to the Mental Health Act 1983) who do not want to stay in hospital are entitled to leave. 1.4 If a patient is incapable of making decisions about receiving treatment, treatment may be provided on a best interest basis in accordance with the provisions of the Mental Capacity Act (MCA) 2005 (refer to section below). 1.5 If a patient lacks capacity to consent to being in hospital in order to receive care or treatment then it may be possible to admit and treat them in hospital on a best interest basis. However, if the admission or treatment that is necessary to prevent harm to them constitutes a deprivation of liberty, then authorisation is required. However, it is unlawful to deprive a patient of their liberty under the Mental Capacity Act unless the deprivation is authorised under the Deprivation of Liberty Safeguards (DOLS) (please refer to section below). 2.0 Area This Policy applies to all employees of Northern Lincolnshire & Goole NHS Foundation Trust, who work with patients who lack, or may lack mental capacity. In addition, those staff must have regard to the guidance in the statutory Mental Capacity Act Code of Practice and the Mental Capacity Act Deprivation of Liberty Safeguards Code of Practice. 3.0 Duties 3.1 Chief Executive The Chief Executive has overall responsibility for ensuring the organisation provides its services within the requirements of the law. The responsibilities for implementation of the Mental Capacity Act and Deprivation of Liberty Safeguards requirements are devolved as per the following list Director of Performance Assurance The Director of Performance Assurance is responsible for ensuring implementation of the Mental Capacity Act and Deprivation of Liberty Safeguards and for ensuring that policy documents are in place and adequate guidance for staff is provided. Printed copies valid only if separately controlled Page 4 of 24

5 3.1.2 Head of Risk Management The Head of Risk Management has designated responsibility for implementing the Mental Capacity Act ensuring that guidance for staff on the requirements of the Act is available and ensuring adequate training provision for all relevant staff groups. The Head of Risk Management also has responsibility for ensuring the requirements of the Mental Capacity Act Deprivation of Liberty Safeguards (DOLS) are met, including the monitoring of Deprivation of Liberty Safeguard Applications and reporting of these to the Care Quality Commission (CQC) Clinical Leads & Associate Chief Nurses Clinical Leads and Associate Chief Nurses have designated responsibility for implementing the Mental Capacity Act within their areas of responsibility. Ensuring that staff are aware of the requirements of the Act and the requirements in respect of the Deprivation of Liberty Safeguards. They also have specific responsibility for ensuring staff are aware of the requirements in respect of attendance at training, and ensuring attendance at the training by all relevant staff Matrons & Ward Managers Have specific responsibilities in respect of the Mental Capacity Act and Deprivation of Liberty Safeguards (DOLS) and must therefore ensure they are adequately trained and competent to follow the procedures for a Deprivation of Liberty Safeguard Application included in this policy and associated policies and documents in respect of a DOLS application. These are available on the MCA DOLS Intranet website Managers Responsibilities It is each line manager s responsibility to ensure all their staff are informed of the Mental Capacity Act and Deprivation of Liberty Safeguards (DOLS) and receive sufficient training and support to undertake their role. It is also the Line Manager s responsibility to ensure that all their staff are aware of the requirements of the Deprivation of Liberty Safeguards, and are adequately trained and competent to follow the procedures for a Deprivation of Liberty Safeguard Application included in this policy and other related MCA policies and documentation which are available on the Trust s Intranet at: Individual Healthcare Professional Staff Responsibilities Healthcare staff (doctors, dentists, nurses, therapists, radiologists, paramedics etc) are legally required to have regard to relevant guidance in the MCA Code of practice. This is available on the Trust s Intranet at: It is each individual s responsibility to ensure they make themselves aware of this guidance and receive sufficient training and information about the MCA and MCA DOLS procedures contained within this policy to enable them to undertake their specific role. In the event that the individual does not feel competent and/or confident to undertake their role, they must identify this with their line manager Printed copies valid only if separately controlled Page 5 of 24

6 All staff are required to appropriately document information in the patient s health records where: An assessment has been made as to the individual s mental capacity Decisions are made for clients who lack mental capacity, with professional judgements used to support the provision of care, treatment or service. These decisions must be based upon the patient s best interest, in line with the requirements contained within the Mental Capacity Act Deprivation of Liberty Safeguards Code of Practice, available on the Trust s Intranet, via the link above Please also refer to Appendices A & B for further detailed guidance on the Deprivation of Liberty Safeguards process. 4.0 Mental Capacity Act Actions 4.1 What is Capacity? The legal definition of capacity is set out in the Mental Capacity Act 2005 Code of Practice (s4) which can be found on the Trust s Mental Capacity Act Intranet website (section 1) via the following link: In simple terms capacity is the ability to make a decision about a particular matter at the time the decision needs to be made. 4.2 Assessment of Capacity Healthcare Professionals assessing capacity and making decisions on behalf of those who lack capacity must at all times take into account the following principles: 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 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 the MCA 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 Anyone who claims that an individual lacks capacity should be able to provide proof. They need to be able to show, on the balance of probabilities, that the individual lacks capacity to make a particular decision, at that time it needs to be made. This means being able to show that it is more likely than not that the person lacks the capacity to make the decision in question. Printed copies valid only if separately controlled Page 6 of 24

7 4.3 What is the test for capacity? A person lacks capacity in relation to a matter if at the material time they are unable to make a decision for them self in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain In practice, this involves a 2 stage test Is there is an impairment of or disturbance in the functioning of a person's mind or brain? Has it made the person unable to make a particular decision? A person is unable to make a decision for himself if they are unable: to understand the information relevant to the decision to retain that information to use or weigh that information as part of the process of making a decision, or to communicate their decision (whether by talking, using sign language or any other means) 4.4 Acts in connection with Care or Treatment The MCA allows a person to do an act in connection with the care or treatment of another person if they take reasonable steps to ascertain the person's capacity and subsequently reasonably believe that the person lacks capacity and it will be in their best interests for the act to be done. 4.5 What is Best Interests? Any act or decision on behalf of a patient who lacks capacity must be in their best interests. A decision regarding the best interests of a patient will involve an assessment of their physical, social, emotional and other needs. The relevant issues and their importance will vary between patients. Under the MCA however, clinicians must always: Consider whether it is likely that the person will at some time have capacity in relation to the matter in question and, if so, when So far as is reasonably practicable, permit and encourage the person to participate or to improve their ability to participate as fully as possible in any acts done for them and any decision affecting them Consider past and present wishes and feelings Consider beliefs and values that would be likely to influence their decision if they had capacity Consider any other factors they would be likely to consider if they were able to do so Printed copies valid only if separately controlled Page 7 of 24

8 Avoid discrimination, including any assumptions based on age, appearance, condition or behaviour 4.6 Recording Assessment of Capacity & Best Interests Decisions Assessment of capacity to take day-to-day decisions or consent to care, require no formal assessment procedures or recorded documentation. However, Section 4.44 of the MCA Code of Practice explain the steps to take to reach a reasonable belief that someone lacks capacity to make a particular decision, and states that if an assessment is challenged, they (the person who made the assessment decision) must be able to describe the steps they have taken. They must also have objective reasons for believing the person lacks capacity to make the decision in question It is therefore good practice for healthcare professionals to carry out a proper assessment of a person s capacity to make particular decisions and to record the findings in the relevant professional records: A doctor or healthcare professional proposing treatment should carry out an assessment of the person s capacity to consent (with a multi-disciplinary team, if appropriate) and record it in the clinical notes Please note: To assist staff in carrying out an assessment of a person s capacity and recording best interests decisions, two flow charts have been developed, these can be found at Appendix C and D of this Policy 4.7 Lasting Powers of Attorney (LPAs) Under the MCA individuals can confer on a donee authority to make all decisions about treatment in circumstances where the donor no longer has capacity. Further information on the role and powers of LPAs is available in the Trust Policy for Consent to Treatment (Schedule 1) and via the Mental Capacity Act webpage on the Trust s Intranet. 4.8 Advance Decisions The MCA provides a statutory basis for advance decisions, previously often referred to as advance directives or living wills. With an advance decision, a capable adult can specify at a later time and in certain circumstances if they lack capacity to consent, specific treatment is not to be carried out or continued. Further information about advance decisions can be found in the Trust Policy for Advance Decisions (Living Wills) available via the intranet. 4.9 Independent Mental Capacity Advocates (IMCAs) If an NHS body is proposing "serious medical treatment" or a move into long term care and the patient has no appropriate person to consult about their best interests, the NHS body must consult an independent consultee An IMCA must also be instructed during gaps in the appointment of a relevant person s representative (for instance, if a new representative is being sought see Sections of the MCA DOLS Code of Practice. In addition an IMCA may be instructed at any time where: the relevant person does not have a paid professional representative Printed copies valid only if separately controlled Page 8 of 24

9 the relevant person or their representative requests that an IMCA is instructed to help them, or a supervisory body believes that instructing an IMCA will help to ensure that the person s rights are protected (see section of the MCA DOLS Code of Practice) Further information about IMCAs can be found in the Trust s Consent to Treatment Policy, available on the Risk Management Intranet site via the intranet following link: x 4.10 Research Research involving incapable adults is a complex legal area which is covered by the MCA and is also subject to the Human Tissue Act 2004 and other statutory provisions. Further information about research involving incapable adults is available from the Research & Development Department Children Generally speaking, the MCA applies to young people aged 16 and over. Treatment of children under 16 is governed by common law principles. Further information about capacity, consent and treatment in respect of children is available in the Trust, Consent to Treatment Policy on the Risk Management Intranet site Consultation and Disputes Clinical decision makers must take into account, if practicable and appropriate, the views of family members and carers. In the event of a dispute between different healthcare professionals or healthcare professionals and family members as to the patient's capacity, or what is in the patient's best interests, an application can be made to the Court of Protection for a declaration on the issue. Please also refer to Chapter 8 and Chapter 15 of the MCA Code of Practice. 5.0 Deprivation of Liberty Safeguards Actions 5.1 What is a deprivation of liberty? Unfortunately there is no simple definition of deprivation of liberty and each decision must be made on a case by case, patient-specific basis. It is apparent from cases which have come before the UK and European courts in the past that certain key factors can be relevant in identifying whether the steps taken in caring for a patient amount to a deprivation of liberty. These include: The use of restraint (including sedation). Restraint must satisfy a further legal test to be lawful ( necessary and proportionate test) Staff exercising complete and effective control over the care and movement of a person for a significant period Staff exercising control over assessments, treatment, contacts and residence Printed copies valid only if separately controlled Page 9 of 24

10 Decisions being made that the person will not be released into the care of others, or permitted to live elsewhere unless the staff consider it appropriate The refusal of a request by carers for a person to be discharged to their care The person being unable to maintain social contacts because of restrictions placed on their access to other people The person losing autonomy because they are under continuous supervision and control The Supreme Court has handed down its long awaited judgment in the appeals of two cases. In doing so it has clarified the test for identifying a deprivation of liberty where the living arrangements and care of a person who lacks capacity are concerned The judgment is significant in the determination of whether arrangements made for the care and/or treatment of an individual lacking capacity to consent to those arrangements amount to a deprivation of liberty A deprivation of liberty for such a person must be authorised in accordance with one of the following legal regimes: a deprivation of liberty authorisation or Court of Protection order under the Deprivation of Liberty Safeguards (DoLS) in the Mental Capacity Act 2005, or (if applicable) under the Mental Health Act Revised test for deprivation of liberty The Supreme Court has clarified that there is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights in the following circumstances, often referred to as the Acid Test : The person lacks capacity to consent to the care regime The person is subject to continuous supervision and control and is not free to leave The Supreme Court held that factors which are NOT relevant to determining whether there is a deprivation of liberty include: the person s compliance or lack of objection and the reason or purpose behind a particular placement. It was also held that the relative normality of the placement, given the person s needs, was not relevant This means when assessing whether the person's care arrangements amount to a deprivation of liberty, the focus is not on the person s ability to express a desire to leave, but on what those with control over their care arrangements would do if they sought to leave. The fact the person is compliant or does not object is not relevant. 5.2 Factors to consider before seeking DOLS authorisation Can the patient receive the planned care or treatment using a less restrictive but still effective care plan which avoids an unauthorised deprivation of liberty? It may be possible to reduce the risk of a DOL by e.g. minimising restrictions, encouraging social contact, involving family and carers and considering less restrictive options. Printed copies valid only if separately controlled Page 10 of 24

11 5.2.2 Is the patient receiving treatment for a mental disorder? If so, the possible need for a mental health assessment and the use of the Mental Health Act 1983 should be considered If the person cannot receive the planned care or treatment without there being a risk of depriving them of their liberty, and all practical and reasonable steps have been taken to avoid a deprivation of liberty, an application for authorisation of deprivation of liberty must be considered. 5.3 How is an application for authorisation made? The necessary application is made to the relevant Local Authority (which is known as the supervisory body) which will depend on where the patient lives and who is funding their treatment. Standard forms are available for the purposes of making the application, and are available on the Risk Management, Mental Capacity Act Intranet website, via the following link: x If staff believe a DOLS authorisation is required they should immediately seek advice from their Matron who will support with the administrative process of making the necessary application Risk Management must also be notified, as reporting of a DOLS Application and its outcome to the relevant external organisation (Care Quality Commission (CQC)) will be required (see also section 5.7 below for further information) The contact details for the Local Authorities are available on the Risk Management, DOLS Website, via the following link: (Deprivation of Liberty Safeguards): Standard / Urgent Authorisations Wherever possible, an application for authorisation should be made in advance of any deprivation of liberty. An application can be made if there is a risk of deprivation of liberty within the next 28 days If there is a need for the person to be deprived of their liberty immediately, the Trust can give an urgent authorisation itself and at the same time apply to the Local Authority for a standard authorisation. Urgent authorisations are for a maximum of 7 days, pending standard authorisation. 5.5 What Happens Next For urgent Authorisations the relevant Local Authority (supervisory body) then has 7 days in which to assess whether a deprivation of liberty should be authorised. Assessors appointed by the supervisory body will determine whether 6 requirements are met: Age: the patient must be 18 or over No refusals: There must be no Advance Decision or valid Lasting Power of Attorney/Deputy which conflicts with the authorisation Printed copies valid only if separately controlled Page 11 of 24

12 Capacity: the patient must lack capacity in relation to the decision to be in hospital Mental Health: The patient must be mentally disordered as defined in the Mental Health Act 1983 Eligibility: In certain circumstances the patient will not be eligible for DOLS authorisation because use of the Mental Health Act is more appropriate Best Interests: It must be in the patient's best interests to be a detained resident; it must be necessary to prevent harm to the patient and a proportionate response to deprive them of their liberty Once the assessment has been completed the Supervisory body will notify the outcome of the assessment to the Managing Authority (the Trust), and relevant others. 5.6 Authorisation turned down If any of the assessments undertaken by the Supervisory Body conclude that one of the requirements is not met, then the assessment process would stop immediately and authorisation may not be given. The Supervisory Body will: notify the Managing Authority (the Trust), the relevant person, any IMCA involved and every interested person consulted by the best interests assessor that authorisation has not been given (a standard form is available for, and provide the managing authority, the relevant person, any IMCA involved with copies of those assessments that have been carried out. This must be done as soon as possible, because in some cases different arrangements will need to be made for the person s care If the reason the standard authorisation cannot be given is because the eligibility requirement is not met, it may be necessary to consider making the person subject to the Mental Health Act If this is the case, it may be possible to use the same assessors to make that decision, thereby minimising the assessment processes The Managing Authority (the Trust) is responsible for ensuring that it does not deprive a person of their liberty without an authorisation, and must comply with the law in this respect where a request for an authorisation is turned down, the person s actual or proposed care arrangements to ensure that a deprivation of liberty is not allowed to either continue or commence. 5.7 Authorised Once a Standard Authorisation has been given, the Supervisory Body must appoint the relevant person s representative as soon as possible and practical to represent the person who has been deprived of their liberty. The role of the relevant person s representative once appointed is: To maintain contact with the relevant person, and To represent and support the relevant person in all matters relating to the Deprivation of Liberty Safeguards, including, if appropriate, triggering a review, using the complaints procedure on the person s behalf or making an application to the Court of Protection Printed copies valid only if separately controlled Page 12 of 24

13 5.7.2 This is a crucial role in the Deprivation of Liberty process, providing the relevant person with representation and support that is independent of the commissioners and providers of the services they are receiving For details of the requirements in respect of the relevant person s representative please refer to the MCA DOLS Code of Practice Chapter 7, available on the Trust s intranet A deprivation of liberty should last for the shortest period possible, and the Best Interests Assessor should only recommend authorisation for as long as the relevant person is likely to meet all the qualifying requirements. An authorisation may last for a maximum of 12 months. Please see section 5.9 below for details of the Standard Authorisation review process. 5.8 What restrictions exist on Authorisations? A Deprivation of Liberty authorisation whether urgent or standard relates solely to the issue of deprivation of liberty. It does not give authority to treat people, nor to do anything else that would normally require their consent. The arrangements for providing care and treatment to people in respect of whom a deprivation of liberty authorisation is in force are subject to the wider provisions of the Mental Capacity Act This means that any treatment can only be given to a person who has not given their consent if: It is established that the person lacks capacity to make the decision concerned It is agreed that the treatment will be in their best interests, having taken account of the views of the person and of people close to them, and, where relevant in the case of serious medical treatment, of any IMCA involved The treatment does not conflict with a valid and applicable advance decision to refuse treatment, and The treatment does not conflict with a decision made by a donee of Lasting Power of Attorney or a Deputy acting within the scope of their powers In deciding what is in a person s best interests, please refer to section 4.5 above. Also Section 4 of the Mental Capacity Act applies in the same way as it would if the person was not deprived of their liberty. The guidance in Chapter 5 of the MCA Code of Practice on assessing best interests is also relevant. 5.9 Standard Authorisation review process Where a valid standard DOLS authorisation is in force, the Managing Authority (the Trust) may request a review if one or more of the qualifying requirements appear to them to be reviewable (Please refer to Section 8 of the DOLS Code of Practice) Once the review has been completed the Supervisory Body will notify the Managing authority and relevant others of the outcome of the review and what if any variation has been made to the standard authorisation. Printed copies valid only if separately controlled Page 13 of 24

14 5.10 What happens when an authorisation ends? When an authorisation ends, the managing authority (the Trust) cannot lawfully continue to deprive a person of their liberty. If the managing authority (the Trust) considers that a person will still need to be deprived of liberty after the authorisation ends, a request needs to be submitted for a further standard authorisation to begin immediately after the expiry of the existing authorisation There is no statutory time limit on how far in advance of the expiry of one authorisation, another authorisation can be made. It will need to be far enough in advance for the renewal authorisation to be given before the existing authorisation ends (but see paragraphs in the Code of Practice about not applying for authorisations too far in advance) External notification to the Care Quality Commission of DOLS Applications and Outcomes Under Regulation 18(2) (c) and (d) of the Health & Social Care Act 2008 Applications to deprive a person of their liberty under the Mental Capacity Act 2005, and their outcomes must be notified to the Care Quality Commission All DOLS Application must be notified to Risk Management at the time of completing the application. A copy of the DOLS Application form should be forwarded in hard copy or sent electronically via . There is a dedicated facility which should be used for this: 5.12 Death under a DOLS Authorisation A death that occurs whilst a person has an authorisation under the deprivation of liberty safeguards is classed as a death in state detention. Section 1 of the Coroners and Justice Act 2009 requires the coroner to hold an inquest into every such death even where the death is from natural causes The coroner must be notified immediately As soon as practicable, the Managing Authority must give a copy of this notice to the following: Coroner s office the supervisory body for the hospital or care home UK Guidance notes on how to report and what information is required at the time of reporting are available on the trust s Intranet DOLS Website. Printed copies valid only if separately controlled Page 14 of 24

15 6.0 Monitoring Compliance and Effectiveness The Mental Capacity Act implementation group will be responsible for monitoring compliance with this policy; in particular the group will monitor performance on: Training Attendance levels DOLS applications in order to ensure these are appropriate and that notification to the relevant external bodies has occurred as required. This will include monitoring, review and audit of all DOLS applications to ensure the complete processes is documented in line with the requirements of the MCA and MCA DOLS. This management information will be held by within the Risk Management IMCA referrals in order to ensure these are appropriate 7.0 Associated Documents 7.1 Policy for Consent to Examination or Treatment. 7.2 Manual Handling (Minimal Lift) Policy. 7.3 Policy on the Restraint of Patients (Adult). 7.4 The Trust s Risk Management Intranet Website, Mental Capacity Act link contains a range of associated documents and publications on Mental Capacity and Deprivation of Liberty Safeguards. These can be found via the following link: References 8.1 Mental Capacity Act (2005). 8.2 Mental Capacity Act Code of Practice. 8.3 Mental Capacity Act Deprivation of Liberty Safeguards. 8.4 Mental Capacity Act Deprivation of Liberty Safeguards Code of Practice. 9.0 Definitions 9.1 Please refer to the Mental Capacity Act Code of Practice (pages ) for a list of the key terms: Please refer to the Mental Capacity Act 2005 Deprivation of Liberty Safeguards Code of Practice (pages ) available on the Trust s Mental Capacity Act Intranet website via the following link: Printed copies valid only if separately controlled Page 15 of 24

16 10.0 Consultation Trust Governance & Assurance Committee 11.0 Dissemination 11.1 This Policy will be placed on the Trust s intranet to enable availability to all staff The policy will be launched via team communication through Ward and Departmental Managers, Sisters, Modern Matrons, Clinical Governance Co-ordinators Further Information and Training Available 12.1 If you have any questions or concerns about the application of the MCA or the MCA Deprivation of Liberty Safeguards please contact the relevant Matron. Risk Management can also be contacted for information/advice. Please refer to the Useful Contacts page available on the Risk Management Intranet site 12.2 For out of hours, the respective Site Manager should be contacted in the first instance. The Site Manager in turn will contact the on-call Senior Manager/ Director More information about the DOLS process can be found in the Deprivation of Liberty Safeguards Code of Practice, copies of which are available from the Risk Management website on the Trust s Intranet. If you have any questions or concerns about a possible deprivation of liberty please refer to the Useful Contacts list stored on the Trust s Mental Capacity Act Intranet website available via the above link Training and awareness of the Mental Capacity Act (MCA) and the MCA Deprivation of Liberty Safeguards (DOLS) is available via the following: Regular Update Newsletters which are available in the MCA Intranet website via the following link: Awareness sessions delivered monthly at each hospital site. Details can be found on the MCA Intranet website via the following link: Where appropriate, awareness of MCA and MCA DOLS requirements will also be covered on other relevant training sessions e.g. safeguarding adults Equality Act (2010) 13.1 In accordance with the Equality Act (2010), the Trust will make reasonable adjustments to the workplace so that an employee with a disability, as covered under the Act, should not be at any substantial disadvantage. The Trust will endeavour to develop an environment within which individuals feel able to disclose any disability or condition which may have a long term and substantial effect on their ability to carry out their normal day to day activities. Printed copies valid only if separately controlled Page 16 of 24

17 13.2 The Trust will wherever practical make adjustments as deemed reasonable in light of an employee s specific circumstances and the Trust s available resources paying particular attention to the Disability Discrimination requirements and the Equality Act (2010). The electronic master copy of this document is held by Document Control, Directorate of Performance Assurance, NL&G NHS Foundation Trust. Printed copies valid only if separately controlled Page 17 of 24

18 Appendix A Printed copies valid only if separately controlled Page 18 of 24

19 Appendix B Printed copies valid only if separately controlled Page 19 of 24

20 Printed copies valid only if separately controlled Page 20 of 24

21 MENTAL CAPACITY ACT BEST INTERESTS DECISIONS Appendix C NO Does the patient have capacity to make a decision about their treatment; or a Lasting Power of Attorney; or an Advance Decision? YES NO Is it likely that the patient will at some time have capacity in relation to the matter in question? YES The patient s wishes must be accepted or the Lasting Power of Attorney or Advance Decision considered. NO Has the patient been encouraged to participate (so far as reasonably practicable) to improve his/her ability to participate as fully as possible in any decision affecting him / her? YES If so will waiting make it likely that any irreversible mental or physical harm may arise? NO If it is reasonable to wait for this without jeopardising the patient s position then you must do so. YES So far as is reasonably ascertainable: The patient s past and present wishes and feelings, in particular any relevant statement made when he/she had capacity The patient s beliefs and values which are likely to influence their decision making if he/ she had capacity. The patient should be encouraged to participate (so far as reasonably practicable) to improve his / her ability to participate as fully as possible in any decision affecting him/her Consider each of the following criteria in deciding what is in the best interests of the patient. Other factors the patient is likely to have considered if able to do so. If practicable and appropriate to consult them the views of: Any person named as someone to be consulted on the matter in question or matters of that kind. Anyone engaged in caring for the patient or otherwise interested in their welfare. Any donee of a Lasting Power of Attorney granted by the patient. Any deputy appointed for the patient by the Court. Printed copies valid only if separately controlled Page 21 of 24

22 MENTAL CAPACITY ACT BEST INTERESTS DECISIONS The Mental Capacity Act (MCA) Five Statutory Principles 1. A person must be assumed to have capacity unless it is established that they lack capacity. 2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. 3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision. 4. An act done or decision made, under the MCA for or on behalf of a person who lacks capacity must be done, or made, in his best interests. 5. Before the Act is done, or the decision is made, regard must be had as 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. BEST INTERESTS CHECKLIST Making a decision in a person s best interests means: One of the key principles of the Act is that any act done, or decision made, for or on behalf of a person who lacks capacity must be done in that person's best interests. The Act does not define the term 'best interests', instead it provides a checklist of common factors which must always be taken into account in a situation where a decision is being made for a person lacking capacity. These factors have been broadly summarised below; Avoid discrimination, including any assumptions based on age, appearance, condition or behaviour Consider past and present wishes and feelings Consider beliefs and values that would be likely to influence their decision if they had capacity Consider any other factors they would be likely to consider if they were able to do so Consider whether it is likely that the person will at some time have capacity in relation to the matter in question and, if so, when So far as is reasonably practicable, permit and encourage the person to participate or to improve their ability to participate as fully as possible in any acts done for them and any decision affecting them Taking account of LPA s or Court appointed Deputies. Not being motivated by a desire to bring about the person s death when the decision relates to life-sustaining treatment. Printed copies valid only if separately controlled Page 22 of 24

23 MENTAL CAPACITY ACT ASSESSMENT OF CAPACITY Appendix D Before starting the assessment process check for communication difficulties and take every possible action to overcome these. Reassess Does the person have an impairment of, or a disturbance in the functioning of, the mind or brain? NO Provide support to enhance capacity YES Is the person able to understand the information relevant to this specific decision? NO Treat reversible causes YES Is the person able to retain that information? NO PERSON LACKS CAPACITY YES Is the person able to weigh that information as part of the process of making this specific decision? NO Is there potential for recovery or is capacity fluctuating? YES YES NO Is the person able to communicate this specific decision (whether by talking, using sign language or any other means)? NO No potential for recovery Refer to Best Interests Decisions flowchart YES PERSON HAS CAPACITY Offer all relevant information and support the patient to communicate decision Record decision made by patient and act accordingly Printed copies valid only if separately controlled Page 23 of 24

24 ASSESSING CAPACITY - THE TWO-STAGE TEST OF CAPACITY If there are doubts about a person s capacity to make a particular decision, the two-stage test of capacity must be used and the outcome recorded in the persons health records. Be clear about what exactly the decision is that needs to be made, and what the important factors are in making that decision. Stage 1 Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? (this is not a diagnosis, but rather are they forgetful, muddled or seem not to respond appropriately to your questions). Examples of an impairment or disturbance in the functioning of the mind or brain may include the following: Stage 2 Conditions associated with some forms of mental illness Dementia Significant learning disabilities The long-term effects of brain damage Physical or mental conditions that cause confusion, drowsiness or loss of consciousness Delirium Concussion following a head injury, and The symptoms of alcohol or drug use Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to? First people must be given all practical and appropriate support to help them make the decision for themselves. A person is unable to make a decision if he/she cannot do one or more of the following: Understand the information relevant to the decision. Do they have all the relevant information, has it been provided in a variety of different ways, is there a better time of day to ask etc? Retain the information long enough to enable the making of a decision. The length of time for this will vary according to the nature of the decision, i.e., it takes less time to decide what to have for breakfast than to choose where you want to live. Use or Weigh up that information. Do they appreciate the wider impact of their decision on themselves and others, do they have a general understanding of the likely consequences of making, or not making the decisions, what evidence of reasoning, is it consistent with expressed beliefs, can they weigh the pros and cons of different options etc.? Communicate their decision in any way. This can be verbal, written, pictorial, or any other established method of communication with that person, i.e., the blink of an eye. Printed copies valid only if separately controlled Page 24 of 24

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