Mental Capacity Act &
Deprivation Of Liberty
Safeguards
(Alerter Level – adults / Group 3 – children and young people)
“Protecting and promoting the rights of
people who lack capacity”.
with
Sarah Biddulph
Health and Safety
• Fire
• Learning Material
• Toilets
• Certificates
• Smoking
• Phones
• Breaks
Learning Agreement
• Look after each other – this is a difficult subject
• Listen but do not be afraid to respectfully challenge each
other
• Ensure examples from real cases remain anonymous.
• If you discuss information about a person who is at risk
of significant harm, this information will have to be
passed on to the appropriate agency.
• Please ask questions!
Outcomes
By the end of the module you will:
– Be able to put the principles of the mental capacity
act into practice
– Be able to assess and record mental capacity
assessments
– Be able to make best interest decisions
– Understand the process for depriving a person of their
liberty in order to keep them safe from harm
– Be aware when and how the Act applies to children
and young people
Emily’s Safety
Watch the introduction to the film and decide
in your group what the care worker/care
home should do about this situation.
Aims of the Act
• To protect the rights of people aged 16 years or
over to make their own decisions (now and for a
future time when they may lack the capacity to
do so).
• To tell us what do when we are concerned about
people’s ability to make decisions for
themselves.
NB: The legislation around MCA & DLS is still
evolving as more cases come to court.
Capacity
What could affect someone’s capacity
(ability) to make a decision?
Assessing Capacity
If you believe someone is having difficulty
making a decision you should carry out a
mental capacity assessment
Assessing Capacity
• Can the person understand the information relevant
to the decision to be made?
• Can the person remember the information for long
enough to make the decision?
• Can the person weigh up the information in order to
make the decision?
• Can the person communicate their decision (by
talking or any other means)?
Assessing Capacity
If the answer to all of these questions is yes, the
person is deemed to have the capacity to make
the decision. They have the right to choose
what will happen even if this is risky.
If the answer to any of these questions is no,
then the person is deemed to lack the capacity
to make the decision. Ensure the best interest
decision making process is followed,
continue to involve the person as much as
possible and consider the need for an IMCA.
Assessing Capacity
John, 17, has a brain injury and lives with his parents and 3
younger siblings. He has recently started attending college,
made new friends and seems to enjoy his time there and the
independence it gives him. He receives DLA but his mother
complains that he's never got enough money to pay his rent.
You suspect that his 'friends' may be taking advantage of him.
When you see John you ask him about college and his new
friends. He says he often takes them out for a burger at lunch
time rather than eating their packed lunches.
You ask him what he thinks about this and he
says he doesn't mind. You say 'it must be
expensive' and he agrees. John tells you that
he had trouble paying his rent last week and
he adds "I have to keep up to date with my
bills or my mum will chuck me out."
Assessing Capacity (cont…)
You ask him why he buys most of the burgers and he says
that he loses track of whose turn it is and so when his
friends tell him it's his turn he buys them. He says he
doesn't mind because he enjoys going out with them. You
say that it doesn't seem fair and he agrees. He says his
friends think it’s fair because he gets DLA and he’s got
more money than them. You ask him what he could do to
make the situation better and he says he could take less
money out with him or he could keep a record of what he
buys but he won't do these things because he doesn't want
to lose these friends.
Does John appear to have capacity about this issue?
5 Principles
1.
2.
3.
4.
5.
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 him to do
so have been taken without success.
A person is not to be treated as unable to make a
decision merely because he 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 his 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.
Unwise Decisions Summary
• If people have capacity you must still actively
encourage safe, healthy behaviour, revisit
assessments if evidence emerges that the
person may lack capacity. You do not have
the right to stop people making capacitated,
free choices.
• If people lack capacity, you must follow the
best interest process.
Best Interest Checklist
• Decisions never made solely on the basis of a persons age, appearance
or other aspect of behaviour that might lead others to make unjustified
assumptions.
• Account for all relevant circumstances
• Is there a likelihood of regaining capacity – could the decision be
delayed?
• As far as possible encourage the person to participate.
• If life-sustaining treatment then the decision must not be motivated by a
desire to bring about their death.
• Can we ascertain the persons past and present wishes, feelings, beliefs
and values?
• Consider the views of other people eg. anyone formerly named by the
person to be consulted, those involved in caring for the person, those
interested in their welfare, lasting power of attorney or any court deputy.
• Consultation Independent Mental Capacity Advocate if required.
Independent Mental
Capacity Advocates
An Independent Mental Capacity Advocate must be
instructed where a relevant best interest decision is being
made for an individual who lacks capacity and who has no
appropriate unpaid representative.
Relevant decisions are:
• serious medical treatment
• a hospital admission likely to last for
more than 4 weeks
• a move of accommodation likely to last
more than 8 weeks
• Deprivation of Liberty authorisations
When decisions relate to Safeguarding investigations an IMCA can
represent victim or perpetrator if they lack capacity regardless of whether
or not they have unpaid representation.
.
Time for a break
Best interests
Watch the film ‘Emily’s Safety’.
• Do you think the right decision was
reached? Why/why not?
• What was done well and what
could/should have been done differently?
Best Interests
The Mental Capacity Act protects those carrying
out a best interest decision from liability if:
• they reasonably believed the person lacked
capacity
• they reasonably believed that they were acting
in the person’s best interests
and
• they were not negligent in carrying out the act
Record Keeping
It is essential that good record keeping is
maintained throughout the decision making
process. The minimum that should be recorded
is:
–
–
–
–
What the decision was
Why the decision was made
How the decision was made
When the decision was made
You can record assessments and decisions in a
person’s daily notes or by using the FACE
assessment tool.
Principle 5
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.
There may be times when we need to restrict
someone’s rights and freedom of action
(to protect them from harm)
People Who Lack Capacity
The MCA states:
• the person taking action must reasonably believe that
restraint is necessary to prevent harm to the person who
lacks capacity and
• the amount or type of restraint used and the amount of
time it lasts must be a proportionate response to the
likelihood and seriousness of that harm.
(MCA CoP section 6.41)
Recent Case Law
• There has been a Supreme Court Judgement
• This is currently being considered at a strategic level in
Devon and some aspects of the judgement reflect in this
training.
• Any future changes in practice would be communicated
across the network of agencies trained.
• •Additional information is available from CQC and
decisions need to be taken by providers at a local level at
this time
Restraint v Deprivation of Liberty?
• Where there are multiple restraints or one
restraint that impacts significantly on the rights
and freedom of action of an individual, this may
amount to a deprivation of liberty.
• This is more than just restraint and amounts to
taking ‘complete and effective control’ of a
person’s life.
Restraint v Deprivation of Liberty?
Questions to consider in relation to people who
lack capacity to consent to their care
arrangements.
Is the person under continuous supervision
and control?
Is the person free to leave?
(consider how staff might react if the person did
ask to leave or relatives asked to remove them)
Lawful Restraint v Deprivation of Liberty
Consider the short
examples and decide
whether they would be
regarded as lawful restraint
or a deprivation of liberty.
Restraint v Deprivation of Liberty?
• People living in hospital and care home settings
have legal protection under the Deprivation of
Liberty Safeguards
• If the restraint amounts to a deprivation of
liberty, referral to the Local Authority DLS team
will be required (18 years or over). They will then
assess whether or not this is in the person’s best
interests.
• A deprivation of liberty is illegal if not in a
persons best interests.
Restraint v Deprivation of Liberty
Consider Pauls story
What ideas do you have about a less
restrictive approach to his care?
In his Fathers words “do you really have to
do this?”
Applying for Authorisation
• The Care Home or Hospital makes a referral to the Local
Authority DLS team and requests a Standard
Authorisation. Formal assessment by a Best Interest
Assessor will take place within 21 days.
• Notify CQC of the application and the outcome.
• For providers of other services such as Supported Living
an application through the Court of Protection would
need to be made.
Emergency Situations
• In an emergency, a care home or hospital may legally
deprive a person, aged 18 or over, of their liberty for up
to 7 days, if they feel the criteria have been met.
• They need to inform the Local Authority DLS team when
they do this.
• A formal assessment will then take place within 7 days.
• Where 16 &17 year olds need to be deprived of their
liberty an application to the Court of Protection or a
Mental Health Act assessment would need to take place.
Concerns
If you have a concern that people in
your care are being deprived of their
liberty speak to the manager of the
service.
Summary
The MCA states that people have the right to:
• Make their own decisions
• Have help to make decisions
• Make decisions that other people disagree with (as long as
they understand them). We retain a duty of care for these
people which means we should actively encourage safe,
healthy behaviour. However, too much pressure could be
seen as abusive.
• Have decisions made in their best interest if they lack
capacity, this may include using proportionate restrictions
and restraint to keep them safe
• Have their rights and freedom of action restricted as little as
possible
Good record keeping is essential.
Mental Capacity Action Plans
When I get back to my workplace I will:
• Read……
• Speak to……
• Find out……
• Tell……
• Ask……
• Change……
For advice about applying the Mental Capacity Act
or Deprivation of Liberty Safeguards contact the
advice line on: 01392-381676