Mental Capacity Act 2005

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1 Self directed learning Mental Capacity Act 2005 The Mental Capacity Act (MCA) was introduced in October 2007 to provide a legal framework for working with people over 16 who may lack capacity to make decisions about their care and treatment. It is intended to empower people to make their own decisions where they are able and protect people who lack capacity by keeping them central to decision-making. Health and social care professionals have a legal duty to consider the MCA Code of Practice when working with people who lack capacity to consent to care or treatment. The Five Principles of the Mental Capacity Act 2005 Presumption A person must be assumed to have of Capacity: capacity unless it is established that she lacks capacity. Must offer support to make the decision: Unwise Lack of Capacity: The Best Interest Principle: The Least Restrictive Principle: A person is not to be treated as unable to make a decision unless all practicable steps to help her to do so have been taken without success. A person is not to be treated as unable to make a decision merely because she makes 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 her 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 freedoms. Contents of this pack: Page 1 Principles of the MCA Page 2 Assessing capacity Page 3 Assessing capacity Page 4 Best Interests Page 5 Best Interest meetings Page 6 The BI checklist Page 7 The BI checklist cont. Page 8 Section 5 protection Page 9 Other MCA restraint Page 10 IMCA Page 11 Advance Decisions Page 12 DoLS Page 13 DoLS FAQs Page 14 Power of Attorney Page 15 Fees to register LPA Page 16 Quiz The Mental Capacity Act 2005 code of practice (CoP) is available electronically at

2 What does it mean to lack capacity? 2 Capacity is issue and time specific The Act defines a person who lacks capacity as a person who lacks capacity to make a specific decision for themselves at the time the decision needs to be made. Who should assess capacity? It is not acceptable to record: Mr. Smith lacks capacity. An assessment of capacity must be focussed on a specific decision or set of related decisions. A person lacks capacity if : The person has an impairment of, or a disturbance in the function of the mind or brain AND the impairment or disturbance means the person is unable to make a decision when they need to. A person is unable to make a decision if they cannot: Understand (relevant) information about the decision Relevant information includes the nature of the decision, the reason why the decision is needed, and the likely effects of deciding one way or another, or making no decision at all. Section 3(2) of the Act outlines the need to provide information in a way that is appropriate to the individual. Retain that information in their mind A person must be able to hold the information in their mind long enough to use it to make a decision. Chapter 4 of the code of practice explains that people who can only retain information for a short while must not automatically be assumed to lack the capacity to decide- it depends on the decision. Weigh or use that information as part of the decision-making process or; In addition to understanding relevant information, people must have the ability to weigh it up and use it to arrive at a decision. Sometimes a compulsion may cause a person to inevitably arrive at one decision. Although they understand the information, they cannot use it as part of the decisionmaking. Also, as a result of an impairment of the mind or brain, some people might make impulsive decisions regardless of information they have been given or their understanding of it. Communicate their decision (by talking, sign language or by any other means) This will only apply if a person is unable to communicate their decision in any way at all. The person who assesses will usually be the person who is directly concerned with the person at the time the decision needs to be made, i.e. the person about to provide care or treatment, or commission a health or social care package. (MCA Code of Practice (CoP) chapter 4.38) It might be necessary to seek a professional opinion on the person s capacity. This could be from a social worker, psychiatrist, psychologist, or speech and language therapist, for example. However, the final decision about a person s capacity must be made by the person intending to make the decision in relation to - or carry out the action upon - the person believed to lack capacity not the professional who is there to advise. (CoP chapter 4.42)

3 More about assessing capacity 3 When should capacity be assessed? Capacity should be assessed if it is in doubt. That may be due to a person s behaviour, a concern raised by a third party or if a person has already been shown to lack capacity to make other decisions. For each new decision, the starting assumption must be that the person has capacity to make the decision. Before acting for someone who lacks capacity, the person administering the care or treatment must have a reasonable belief that the person lacks capacity to make the decision at the time the decision needs to be made. Capacity assessments must be reviewed for each new decision, and if there is any reason to consider that a person s capacity may have changed. (CoP has more guidance about fluctuating capacity and reviewing capacity assessments.) Questions to consider if you think a person may lack capacity (CoP 4.36) Does the person have all the relevant information? Do they have information on all the different options? Would the person have a better understanding if it was explained in another way? Are there times of day when the person s understanding is better? Are there locations where they may feel more at ease? Can anyone else help the person to make choices or express a view? How should capacity assessments be recorded? It is good practice for 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 such as care plans, clinical notes, or CPA documents. The FACE Mental Capacity Assessment form is one way of recording a capacity assessment. They may equally be recorded in case recordings or patient records. Recording should always include details of the decision to be made, how the person was assisted to make the decision and specific assessment of ability to make the decision. (CoP 4.14) Practical guidance on assessing capacity Practical steps to carrying out a capacity assessment is available from CoP 4.45 and Make every effort to communicate with the person. See if there is a way to explain the person s options in a way that is easier to understand. Family members or friends may be able to help with effective communication. Consider whether the decision could be delayed until a time the person regains capacity and whether the person is being affected by the environment. Be aware that a person agreeing with you or assenting to a proposal does not necessarily mean they are able to make the decision. Check the person s understanding after a few minutes. Ensure the person understands the nature and effect of the decision. Make sure they have the information they need including relevant documents or the views of other professionals.

4 Best Interest Decisions If a person is assessed as lacking capacity to make a specific decision at the time it needs to be made, any decision made on that person s behalf must be made in their best interest. Guidance on making best interest decisions is available in chapter 5 of the code of practice. The Act includes a list of things which must be considered in making a best interest decision. That is referred to as the best interest checklist. Both a complete version of the list from the Act and a brief version of the list as described in the code of practice are included in this training pack. Who is the best interest decision-maker? As with assessing capacity, the person purposing to take the action or make the decision is the decision maker. Decisions may be made using multi-disciplinary consultation, but there will be one decision maker. That will usually be the person responsible for carrying out the decision. For example The decision maker would be: If a person is to have surgery.. If a person is to have a bath.. For social services care plans For health-funded care plans. Recording the surgeon the care worker the care professional proposing the plan the health professional proposing the plan Best interest decisions taken by an individual decision-maker can be recorded in a variety of formats: case recordings, clinical notes, review paperwork, or using the FACE standard form. The recording should include what factors were taken into account and who was consulted (CoP 5.15). The decision-maker must always consider the best interest checklist. Best Interest Meetings Best Interests 4 Best interest decisions may be taken as part of a multi-agency meeting (CoP 6.17), especially where there is a dispute (CoP 5.68). The decision may then be recorded in the form of meeting notes or minutes. The chair of the meeting may not be the decision-maker. The chair may help the group reach a consensus decision and resolve disputes, however, the decision- maker must be satisfied that the decision is in the person s best interest before proceeding. The Best Interest Checklist (CoP 5.13) Working out someone s best interests cannot be based simply on age, appearance, condition or behaviour. All relevant circumstances should be considered when working out someone s best interests. (CoP ) Every effort should be made to encourage and enable the person who lacks capacity to take part in making the decision. (see CoP chapter 3: How should people be helped to make their own decisions?) If there is a chance the person will regain the capacity to make a particular decision, then it may be possible to put off the decision until later. Special considerations apply to decisions about life-sustaining treatment. The person s past and present wishes and feelings, beliefs and values should be taken into account. The views of other people who are close to the person (including any attorney or deputy) should be considered.

5 Best Interest Meetings 5 It will NOT be necessary to hold a meeting each time a best interest decision needs to be made. The MCA code of practice suggests that holding a meeting or conference may be a useful way to resolve disputes or disagreements about bests interests (5.68), allow family members to air conflicting views (5.64), or have a multi-disciplinary discussion about what treatment is in a person s best interest (6.17). Chapter 15 gives further information about resolving disputes. In each case, it is important to remember that the responsibility for deciding what is in the person s best interest lies with the decision-maker, not necessarily the person chairing the meeting. The decision maker will always be the person proposing to carry out the action, who is covered by section 5 protection. See page 8 of this training pack for information about section 5. Suggested template for a formal Best Interest meeting: Based on template created by Karen Howard, Plymouth NHS safeguarding adults manager List participants and non-participants and who copies of minutes should be sent to. List individuals not invited and the reasons for their exclusion. Introduce the vulnerable adult - summary of needs and any other relevant information Provide a summary of the current situation Clearly state what is the decision to be made at this meeting. Clearly identify who is the decision-maker for that specific decision. Summarise the capacity assessment include date, assessor and outcome. Consider and record whether the person is likely to regain capacity. Consider whether the decision can wait until such a time as the person regains capacity. Describe what action has been taken to encourage/assist person to take part in the decision. Describe the involvement and views of family members, carers, and close friends. Identify things the person would take into account if making the decision themselves. Summarise, discuss and record the past and present wishes of the person. Give special consideration to any written statements of the persons wishes. Discuss and record the current wishes, feelings and expressed opinions of the person. Discuss and consider any beliefs and values of the person likely to influence the decision. Record feedback/information from the care manager including any historic information. Record feedback/information from the care coordinator including any historic information. List any other known factors the person would likely consider when making the decision. Discuss any information from lasting or enduring power of attorney appointed by person. Discuss any Information from any deputy appointed by court of protection for the person. Discuss any verbal or written advance decisions and whether they are valid and applicable. Discuss and record any information from any other professional staff involved. Discuss and consider any feedback/information from the IMCA and other advocates. Summarise the discussion and note if there is any information which is confidential to the meeting that should be withheld from any freedom of information requests. Discuss all options available for this decision, especially any less restrictive options. Record the conclusion of meeting including views of all attendees and any dissenting views. Be sure to record the following: How was decision made? What information was relied upon and what weight was it given? What were the reasons for reaching the decision? What factors were considered? Who was consulted and how were those views taken into account? Summarise any action plan including actions required, person responsible and time scales.

6 The Statutory Best Interest Checklist 6 The full best interest checklist is outlined in section 4 of the Mental Capacity Act. It describes the factors which decision-makers must consider in determining what is in a person s best interest. The full checklist, rather than the version included in the code of practice (see box on page 4) may be useful for decision-makers faced with challenging or complex decisions. Note: Headings have been added for the purpose of this training pack. 1. Do not discriminate or make assumptions 4(1) In determining for the purposes of this Act what is in a person s best interests, the person making the determination must not make it merely on the basis of: (a) the person s age or appearance; or (b) a condition of his, or an aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests. 2. Consider all relevant circumstances 4(2) The person making the determination must consider all the relevant circumstances and, in particular, take the following steps. 3. Consider whether the person will regain capacity 4(3) He must consider: (a) whether it is likely that the person will at some time have capacity in relation to the matter in question; and (b) if it appears likely that he will, when that is likely to be. 4. Encourage and support the person to participate in the decision 4(4) He must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him. 5. Caution in relation to life-sustaining treatment 4(5) Where the determination relates to life-sustaining treatment he must not, in considering whether the treatment is in the best interests of the person concerned, be motivated by a desire to bring about his death. 6. Consider past and present wishes and feelings, beliefs and values 4(6) He must consider, so far as is reasonably ascertainable: (a) the person s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity); (b) the beliefs and values that would be likely to influence his decision if he had capacity; and (c) the other factors that he would be likely to consider if he were able to do so. Note: Determining what is in a person s best interest is not the same as working out what the person would have decided if he had capacity to do so or when he still had capacity. Version 3: Jan 10 Roslynn Azzam,Plymouth DOLS Officer Mental Capacity Act 2005, Ch 9, Section 4 (1-11)

7 The Statutory Best Interest Checklist 7 7. Consult others about the person s views AND their own views 4(7) He must take into account, if it is practicable and appropriate to consult them, the views of: (a) anyone named by the person is someone to be consulted on the matter in question or on matters of that kind; (b) anyone engaged in caring for the person or interested in his welfare; (c) any donee of a power of attorney granted by the person; (d) any deputy appointed for the person by the Court; as to what would be in the person s best interests and, in particular, as to the matters mentioned in subsection (6). 8. Anyone acting in a person s best interest must use this checklist including any Lasting Power of attorney acting on the person s behalf 4(8) The duties imposed by subsections (1) to (7) also apply in relation to the exercise of any powers which: (a) are exercisable under a lasting power of attorney, or (b) are exercisable by a person under this Act where he reasonably believes that another person lacks capacity. 9. Decision-makers must follow 1-7 AND have a reasonable belief that their decision or action is in the person s best interest. 4(9) In the case of an act done, or a decision made, by a person other than the Court, there is sufficient compliance with this section if (having complied with the requirements of subsections (1) to (7) he reasonably believes that what he does or decides is in the best interests of the person concerned. 10. Definition of Life-sustaining treatment Note: (see CoP for guidance about life-sustaining treatment) 4(10) Life-sustaining treatment means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life. 11. Definition of Relevant Circumstances 4(11) Relevant circumstances are those: (a) of which the person making the determination is aware, and (b) which it would be reasonable to regard as relevant. Additional Reading: Further information can be found in: Best Interests, Guidance on determining the best interests of adults who lack the capacity to make a decision for themselves published by the British Psychological Society. Relevant case law can be found in welfare orders made by the court of protection which are available at: Version 3: Jan 10 Roslynn Azzam,Plymouth DOLS Officer Mental Capacity Act 2005, Ch 9, Section 4 (1-11)

8 Protection from Liability 8 Section 5 Protection for Decision Makers The MCA provides protection from liability for decision makers providing care and treatment to those who lack capacity if they follow the principles of the Act. The decision maker must have a reasonable belief that the person lacks capacity to give permission for the action and that the Act is in the person s best interest. Section 5 does not provide a defense in cases of negligence. People who do more than their experience or qualifications allow may not be protected (CoP 6.24) Section 5 protection includes provision of personal care and treatment including diagnostic tests, giving medication, any other necessary medical procedure (for example taking a blood sample), and providing nursing care, including emergency care. The code of practice (6.5) provides a list of personal and health care actions covered by the Act. Decisions not covered by the Act Certain decisions can never be made on behalf of another, because they are either personal or governed by legislation: Consenting to marriage or a civil partnership, consenting to sexual relations, consenting to a decree of divorce on the basis of two years separation or consenting to a dissolution of a civil partnership. consenting to a child being placed for adoption or the making of an adoption order, discharging parental responsibility for a child in matters not relating to the child s property or giving consent under the Human Fertilisation and Embryology Act. It is not possible to vote on behalf of a person who lacks mental capacity. It is not possible to enter a contract on behalf of someone who lacks capacity (CoP ). Treatment not covered by section 5 Certain treatment decisions are considered so serious that they need to be made by the Court of Protection: (CoP 6.18, ) Withholding or withdrawing artificial nutrition and hydration from a patient in a permanent vegetative state. Where it is proposed that a person who lacks capacity should donate an organ or bone marrow to another person. Non-therapeutic sterilisation Where there is a dispute about whether a particular treatment would be in a person s best interests, particularly if there is an irresolvable dispute with family members or new or untested treatments raising ethical dilemmas. Deprivation of Liberty Section 5 protection does not extend to care or treatment which requires a person to be deprived of their liberty. The Deprivation of Liberty Safeguards or specific direction from the Court of Protection would be required.

9 Other provisions of the MCA Permissible use of Physical Restraint The MCA defines restraint as: the use or threat of force to help to do an act which the person resists, or the restriction of the person s liberty of movement whether or not they resist. (CoP 6.40) Physical restraint may be lawfully used on someone who lacks capacity to consent to the restraint in that person s best interest IF it is necessary to prevent harm to the person, the least restrictive option, and proportionate to the risk of harm. The amount and type of restraint must be proportionate to the likelihood and seriousness of harm (CoP 6.41). The code gives further guidance on what is considered a proportionate response (CoP 6.47). Restraint which is permissible under the Act is covered by section 5 protection from liability. If restraint is used, there must always be a clear record made of the event including evidence that the level of restraint was proportionate including information about the risk to the person. This protection does not extend to the use of physical restraint to protect staff or other residents from harm. That is subject to other legislation and may be permissible under common law (CoP 6.43). Staff should also follow the policy of their organisation on the use of restraint. Use of restraint must always be in line with best practice, subject to care standards, individual risk assessments, and CQC guidance. Health and social care staff should refer to other guidance as issued by the department of health and regulations and standards (CoP 6.42). New Criminal Offences (CoP ) The Act introduces two new offences: Ill treatment and wilful neglect of a person who lacks capacity. The offences may apply to anyone caring for a person who lacks capacity including family carers, healthcare and social care staff, an LPA or an EPA, or a deputy appointed by the court. These people may be guilty of an offence if they ill-treat or wilfully neglect the person they care for or represent. For a person to be found guilty of ill treatment, they must either have deliberately ill-treated the person, or be reckless in the way they were ill-treating the person or not. It does not matter whether the behaviour was likely to cause, or actually caused, harm or damage. The meaning of wilful neglect varies depending on the circumstances, but usually means a person deliberately failed to carry out an act they knew they had a duty to do. Penalties for the new offences range from a fine to imprisonment of up to five years or both. Other topics in the MCA code of practice: Chapter 11: Research projects involving people who lack capacity Chapter 12: How the MCA applies to children and young people Chapter 13: The relationship between the MCA and the Mental Health Act 1983 Chapter 14: Protection for people who lack capacity Chapter 16: Rules about access to information about people who lack capacity

10 Independent Mental Capacity Advocates 10 Role of the Independent Mental Capacity Advocate (IMCA) (CoP chapter 10) Understanding the role of the IMCA service The aim of the IMCA service is to provide independent safeguards for people who lack capacity to make certain important decisions and, at the time such decisions need to be made, have no -one else (other than paid staff) to support or represent them or be consulted. Instructing and consulting an IMCA Independent Mental Capacity Advocates DO NOT need to be appointed for every person who lacks capacity or whenever a best interest decision is being made. An IMCA must be instructed, and then consulted, for people lacking capacity who have no-one else to support them (other than paid staff), whenever: an NHS body is proposing to provide serious medical treatment (see CoP ), or an NHS body or local authority is proposing to arrange accommodation (or a change of accommodation) in hospital or a care home, and the person will stay in hospital longer than 28 days, or they will stay in the care home for more than eight weeks. An IMCA may be instructed to support someone who lacks capacity concerning: care reviews, where no-one else is available to be consulted adult protection cases, whether or not family, friends or others are involved Or where the person who lacks capacity is abusing another person. Ensuring an IMCA s views are taken into consideration The IMCA s role is to support and represent the person who lacks capacity. Because of this, IMCAs have the right to see relevant healthcare and social care records. Any information or reports provided by an IMCA must be taken into account by the decision maker as part of the process of working out whether a proposed decision is in the person s best interests. The IMCA does not act as the decision maker. The code of practice gives guidance about steps that can be taken if the IMCA and the decision maker disagree ( ). IMCA s role in the Deprivation of Liberty Safeguards An IMCA must be instructed following an application for a deprivation of liberty authorisation if the person has no other family or friends who are appropriate to consult during the assessment. They have a further role advising people subject to DoL authorisation and their representatives. If you are in doubt about whether you should involve an IMCA please contact the IMCA Service. Monday-Friday 9-5 Independent Mental Capacity Advocates Plymouth Highbury Trust 207 Outland Road Plymouth, PL2 3PF Telephone:

11 Advance Decisions to refuse treatment 11 The Mental Capacity Act allows adults with capacity to set out a refusal of specified medical treatment for a time when they might lack the capacity to consent or refuse that treatment. Advance decisions may be written or verbal, but must state precisely what treatment is to be refused, in medical OR everyday language. It may also set out circumstances when the refusal should apply including possible future changes. There is no set form for a written advance Decision. The code of practice suggests a list of things it is helpful to include (9.19) Other organisations provide suggested templates for advance decisions which are found at and Healthcare professionals should record verbal advance decisions in a person s healthcare record (CoP 9.23). Advance decisions to refuse life-sustaining treatment must be in writing, signed and witnessed and must include a statement saying that it applies even if life is at risk. Further information about witnessing the signature on a written advance decision is available in the code ( ). An AD to refuse treatment for a mental disorder can be overruled if the person is detained under the Mental Health Act. Special provision applies to Electroconvulsive therapy. If an AD is not valid or applicable, it should still be considered as an indication of a person s wishes and feelings. Written Statements about wishes and feelings People may also make an advance statement about their preferred care or treatment for a future time when they may lack capacity to make that decision. However, such statements about preferred treatment are not binding in the same way as advance decisions to refuse treatment. They must be considered in best interest decision-making. It is not possible to make a binding advance decision to refuse care. Advance statements about care preferences including living arrangements must be considered as part of best interest decision-making. If a person has put their care preferences in writing, the decision maker must consider them carefully and record their reasons for not following the written wishes including the reasons why it was not in the person s best interest. (CoP ) Professionals must follow a valid and applicable advance decision, even if they think it goes against a person s best interests. Professional must start from the assumption that a person had capacity at the time they made the advance decision unless they are aware of reasonable grounds to doubt that. An AD is not valid if: The person has withdrawn it while they had capacity. It is overridden by a later LPA that relates to the specified treatment The person has acted in a way that is clearly not consistent with the decision It is not applicable if: The person who made it has capacity to consent to or refuse the treatment. It does not refer specifically to the treatment in question Any circumstances included in the AD are absent. There are reasonable grounds for believing that circumstances exist that the person did not anticipate at the time of the decision and which would have affected the decision had they been able to anticipate them.

12 Deprivation of Liberty Safeguards 12 Deprivation of Liberty Safeguards (DoLS): The Deprivation of Liberty Safeguards were introduced as an amendment to the MCA They came into effect in April They aim to protect the human rights (article 5 right to liberty and security) of people who lack mental capacity to consent to the care they receive in registered care homes or hospitals. There is a DoLS Code of Practice to supplement the main MCA Code of Practice. Deprivation of Liberty is a legal term defined by case law and the Human Rights Act. It should not be confused with restrictions of movement, liberty, or freedom which are permissible under the Mental Capacity Act if they are necessary in a person s best interest. Authorisation Process: In order for a person to be lawfully deprived of their liberty in a hospital or care home, it must be authorised by the responsible NHS or local authority according to the Deprivation of Liberty Safeguards (DoLS). If a person must be deprived of their liberty outside the DoLS process, this must be specifically authorised by the Court of Protection. To request an authorisation, a care home or hospital ward must send an application to a responsible NHS or LA. In Plymouth, this is via the DoLS office at Chaucer Hse. How to identify Deprivation of Liberty Deprivation of Liberty is not included in section 5 protection. To determine if a deprivation of liberty is occurring, consider the specific situation of the individual and the whole range of factors involved such as type, duration, and effects of any restrictions on the individual s freedom of movement. The difference between a deprivation of liberty [needs to be authorised] and restriction of movement [permissible under the Mental Capacity Act] is the degree or intensity of the restriction and not the nature or substance. (European Court of Human Rights, 2004, HL v the United Kingdom) Decision makers should consider the factors listed on page 17 & 18 in Chapter 2 of the DOLS code of practice. Some key questions to consider: Is the person under constant supervision and control? Do staff exercise complete and effective control over the care and movement of a person for a significant period? The DOLS office appoints at least two DOLS trained assessors including a best interest assessor who will advise whether deprivation of liberty is occurring and whether it is necessary and proportionate to the risk. Following authorisation, the person or representative can request a review or apply to the Court of Protection to challenge the authorisation. Is the person prevented from maintaining contact with the outside world or maintaining social contacts? Are family, friends or carers are prevented from moving the person to another care setting or taking them out? Has a decision been made to prevent the person from leaving or being released to the care of others? Has a request by carers for a person to be discharged to their care been refused? Does the cumulative effect of all the restrictions placed on a person amount to deprivation of liberty even if the restrictions considered individually would not? Version 3: Jan 10 Roslynn Azzam,Plymouth DOLS Officer/ DoLS Code of Practice Supplement Crown Copyright 2008

13 Deprivation of Liberty Safeguards FAQs 13 Isn t Deprivation of Liberty always a bad thing? Deprivation of Liberty may be the only option available to keep a person safe. It must be authorised and subject to safeguards to be lawful. It can only be authorised if it is necessary to prevent harm, proportionate to the risk of harm, and in a person s best interest. Does this affect everyone living in a care home who lacks capacity? Not everyone who is placed in a care home without the ability to consent will be deprived of their liberty. It will depend on the circumstances of the admission and the type of care required. In making best interest decisions as part of care plans, care homes should consider whether a person is at risk of deprivation of liberty and regularly review restraint and restrictions used. Who do the Safeguards apply to? People who lack mental capacity to consent to care or treatment which involves being kept in a hospital or care home in circumstances amounting to deprivation of liberty. What if the door to the care home is locked? Care Homes may choose to lock the external door due to any number of risks. This would not mean that everyone inside or everyone who lacks capacity is being deprived of their liberty. A resident may be at risk of deprivation of liberty if they are regularly prevented from leaving through distraction, locked doors or restraint, or by leading them to believe they would be prevented from leaving if they tried. This may not constitute deprivation of liberty by itself, but is a factor to consider. All other circumstances of that individual will also need to be considered. If a person is not allowed any freedom of movement within the care home, for example if they are not allowed to leave their room for long periods of time, they are probably deprived of their liberty. Similarly, controlling a person s behaviour and movement through regular use of medication or seating from which a person cannot get up may constitute deprivation of liberty. Do care homes need an authorisation to use physical restraint? Occasional use of restraint is unlikely, in itself, to constitute deprivation of liberty or require a DoLS authorisation. It may be one contributing factor. Where the restriction or restraint is frequent, cumulative and ongoing, or if there are other factors present, the care home should consider whether the care has moved beyond restraint which is permissible under the MCA and now constitutes deprivation of liberty. If so, a DoLS authorisation would be required. What if I think someone is deprived of their liberty without an authorisation? First, discuss your concerns with the care home or ward manager. Encourage them to apply for a DOLS authorisation if needed. If you cannot reach an agreement, report your concern to the DoLS office on The DoLS office will send an assessor to consider whether the person is deprived of their liberty. If so, the care provider is required to seek an authorisation. Where can I find out more information? The DoLS code of practice can be downloaded from Anyone can ring the Plymouth DoLS officer Roslynn Azzam/ DoLS advice line Version 3: Jan 10 Roslynn Azzam,Plymouth DOLS Officer/ DoLS Code of Practice Supplement Crown Copyright 2008

14 Power of Attorney 14 Power of Attorney (donee): a person appointed by an individual (donor) while they still have capacity to make certain decisions on their behalf. Enduring Power of Attorney : a person appointed under the old system (pre-2007) to make decisions about a donor s financial affairs. These will be valid after 2007 IF registered with the office of the public guardian. These do NOT give the attorney power to make decisions about health and welfare on behalf of the donor. Lasting Power of Attorney : a person or persons (CoP 7.11) appointed under the new system introduced by the Mental Capacity Act to make certain decisions on behalf of the donor. LPAs MUST also be registered with the office of the public guardian BEFORE they can be used. It May be registered by the donor or donee before the donor loses capacity. People acting as LPAs have a duty to have regard to the MCA code of practice and must act in the donor s best interest. They cannot overrule a valid Advance Decision made after they were appointed. Finance LPA: A donee appointed to make decisions on behalf of the donor about property and affairs (CoP 7.36). Unless the donor states otherwise, a finance LPA can be used (if registered) before the donor loses capacity. Welfare LPA: A donee appointed to make personal welfare decisions on behalf of the donor including healthcare and medical treatment decision (CoP 7.21). This can ONLY be used (if registered) at a time when the donor lacks capacity to make a specific welfare decision. The donor may place restrictions on the scope of the LPA. There are some limits on treatment decisions that can be made by a welfare LPA. These are listed in the code of practice ( ). Finance and Welfare LPA: A donee appointed to make decisions in both areas as above. How can people be protected from abuse by a Power of Attorney? Abuse by a power of attorney should be referred to the Office of the Public Guardian on More information is available from The public guardian can investigate actions of an attorney and refer concerns to other agencies. It can also make an application to the court of protection to remove the attorney. To Resolve disputes about best-interests: Court of Protection The Court of Protection is a specialist court which can ultimately decide whether a person has mental capacity and make finance and welfare decisions for people who lack capacity. If professionals believe that an LPA is not acting in the donor s best interest and are unable to settle the disagreement locally, they can apply to the Court of Protection. The Court of Protection has a range of powers (CoP 7.45) including removing the attorney. The Court may also choose to appoint a deputy to make certain decisions for the person. Chapter 8 of the code of practice provides more information about the role of the Court.

15 Fees to Register Power of Attorney 15 Forms and guidance needed to make and register a power of attorney can be downloaded from the office of the public guardian on Fee to Register an Enduring Power of Attorney Fee to Registers a Lasting Power of Attorney : Finance Health and Welfare Finance and Welfare You may not need to pay the fee if you receive any of the following benefits: Income Support; Income-based Job-Seeker s Allowance or Employment and Support Allowance; Pension Guarantee Credit element of State Pension Credit; A combination of Working Tax Credit and either Child Tax Credit, Disability Element Working Tax Credit or Severe Disability Element (within the Working Tax Credit). This does not include Disability Living Allowance or Invalidity Benefit; Housing Benefit; or Council Tax Benefit (not the 25% single person reduction). You may only have to pay a reduced fee if, depending on your income: If your annual income before tax from employment, benefits or pension is: Below 12, no fee to pay 12,001 to 13,500.you pay 25% of fee 13,501 to 15,000.you pay 50% of fee 15,001 to 16,500.you pay 75% of fee Over 16, you pay the full fee What if I don t fall into any category above, but still cannot afford the fee? If payment of the fee would cause you or your dependents undue hardship. For example, if it would make it difficult to meet your normal living expenses such as food costs and bills - you may apply for the fee to be waived by writing a letter explaining your situation. What if a person loses capacity before they appoint an LPA? If a person has no lasting power of attorney, carers or other decision-makers will make welfare decisions in the person s best interest in accordance with section 5 of the Act. If a person no longer has mental capacity to choose their own finance LPA, the court will appoint a deputy to make necessary decisions. A deputy will receive supervision from the office of the public guardian according to the OPG s assessment of what level is required. Fee for the court to appoint a deputy There are four different types of supervision and each has a different annual fee which is payable by the person who has lost capacity: Type I (highest only used in case of dispute/investigation) per year Type IIA (intermediate where there are some concerns) per year Type II (lower where there are more than 16,000 in assets) per year Type III (minimal where there are less than 16,000 in assets) no fee Version 3: Jan 10 Roslynn Azzam,Plymouth DOLS Officer/ information taken from

16 True or False Mental Capacity Act Quiz 16 It is alright to presume a person lacks capacity if they are of a certain age and have dementia If a person makes really unwise decisions, that is evidence that the person lacks capacity If a person cannot make a decision without help, they lack capacity Capacity Assessments must be reviewed annually Capacity Assessments can be recorded in a person s clinical notes without a special form If you suspect a person lacks capacity, but they are in agreement with your decision, you will not need to assess their capacity Best Interest Decisions must always be made in a multi-disciplinary group meeting The person who chairs a best interest meeting will always be the decision maker A record of a best interest decision must include consideration of the best interest checklist Section 5 protection allows social care workers to provide medical treatment under the Act A person without mental capacity can be physically restrained under section 5 of the Act A person with enduring power of attorney can decide where the donor should live A professional can t overrule a valid advance decision about where a person wishes to live An advance decision might not be applicable if a person s circumstances suddenly change All advance decisions must be in writing, signed and witnessed Chose one: The correct person to assess capacity will usually be a) the person s GP b) a psychiatrist c) a psychologist d) the person to carry out the decision Which is not part of the best interest checklist a) avoid age discrimination b) allow the person to participate c) consider the person s wishes d) seek consent of the nearest relative Fill in the blanks: An IMCA MUST be appointed for people who have no friends or family to consult when. The NHS proposes A hospital stay longer than A care home stay longer than A person is unable to make a decision if they cannot U R W And C relevant information it long enough to it up to make a decision the decision F, F, F, F, T, F, F, F, T, F, T, F, F, T, F, d, d, serious medical treatment, 28 days, 8 weeks, understand, retain, weigh, communicate

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