The Mental Capacity Act and Deprivation of Liberty Safeguards
Implications for Commissioners and Care Providers
Bruce Bradshaw
Patient Experience Manager
NHS England – North Yorkshire
& Humber
The outcomes people say they want related quality of life
Accommodation cleanliness and comfort
Food and nutrition
Dignity
Control over daily life
Occupation
Safety
Social participation and involvement
Personal cleanliness and comfort
Feedback from People who use services
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People want to feel safe but also
to maintain relationships
Access to justice: criminal, social
or restorative
Support with Difficult Decision
Making
But, some 70% of all ‘social care
clients’ lack capacity in some
aspects of their decision making
and need to be supported in the
context of the Mental Capacity Act.
This applies to some 80% of those
in care homes.
We think we will get this...
...we get this!
The NHS Mandate
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6Cs - Values essential to compassionate care
Care
Care is our core business and that of our
organisations; and the care we deliver
helps the individual person and improves
the health of the whole community.
Caring defines us and our work. People
receiving care expect it to be right for
them consistently throughout every stage
of their life.
Communication
Communication is central to successful
caring relationships and to effective team
working. Listening is as important as what
we say. It is essential for ‘No decision
without me’.
Communication is the key to a good
workplace with benefits for those in our
care and staff alike.
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Compassion
Competence
Compassion is how care is given through
relationships based on empathy, respect
and dignity.
Competence means all those in caring roles
mist have the ability to understand an
individual’s health and social needs.
It can also be described as intelligent
kindness and is central to how people
perceive their care.
It is also about having the expertise, clinical
and technical knowledge to deliver effective
care and treatments based on research and
evidence.
Courage
Courage enables us to do the right thing for
the people we care for, to speak up when
we have concerns.
It means we have the personal strength and
vision to innovate and to embrace new
ways of working.
Commitment
A commitment to our patients and
populations is a cornerstone of what we do.
We need to build on our commitment to
improve the care and experience of our
patients.
We need to take action to make this vision
and strategy a reality for all and meet the
health and social care challenges ahead.
Legal Framework
• “Community care law remains a hotchpotch of conflicting
statutes….” Luke Clements Community care and the Law
• Statute
Legal Terms:
• Case Law
• Codes of Practice
• Professional Codes
• Contracts
• Policy
• Procedures
• Protocols
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•
•
•
•
•
Must
Should/Shouldn’t
May
Duty
…….
Legal Framework
Human Rights Act
e.g. Fraud Act; Sexual
Offences Act
Legal
intervention
with alleged
perpetrator
e.g. Mental Capacity
Act/Deprivation of
Liberty Safeguards;
Mental Health Act
Authority
to act
against
person’s
wishes
Rights & duties
on public
bodies
Equality Act; Health &
Social Care Act 2008 &
2012; NHS Community
Care Act 1990
Mental Capacity – A fundamental
rights
• Must assume a person has
capacity unless proved otherwise
Mental
Capacity Act
Principles
• Must not do things or, take
decisions for people without
• Must not treat people as
capacity in their best interests
incapable of making a decision
unless you have tried all you
can to help them
• Before doing something to
someone or making a decision
on their behalf, consider whether
• Do not treat someone as
you could achieve the outcome
incapable of making a decision
in a less restrictive way
because their decision may seem
unwise
Mental capacity & duty of care
• Adults have the right to make
decisions – including decisions
about the risks they are willing to
take.
• Adults may plan for future
decisions
• The right to make an unwise
decision does not abdicate a duty
of care – helping individuals in
making informed choices & taking
reasonable steps to offer support
• Where adults lack capacity to make
that decision, we have a duty to act
in their best interests.
Deprivation of liberty safeguard
Low restriction
High restriction
Authorised under section 5 & 6 of the Mental
Capacity Act
Requires
Deprivation of
Liberty
Authorisation
Restriction(s) resulting in
complete and effective control
All care must be in the persons best interest and least
restrictive as is viable. Unlawful restriction is a safeguarding
issue
Mental Capacity Act – Commissioners
• Retains responsibility for assuring through
the commissioning process compliance with
the MCA 2005 and DoLS legislation of all
providers of health care
• Work with health providers and local
authorities to ensure appropriate capacity in
the system of professionals qualified to
carry out best interest assessments
• Support the training and education of health
professionals and best interest assessors to
deliver effective safe quality patient
services.
Indicators of how the MCA is being
used include:
Number of referrals to IMCAs
(statutory advocates)
Number of referrals for DOLS
Number of Best Interest Assessor
(health) available and their
competencies and capacity
Do Trusts report Court of Protection
cases to CCGs or Safeguarding
Boards? Is this being used in
contract monitoring
Some Question to ask: (there are more!)
• How will you assure that MCA leads have the right
accountability, experience, knowledge and access to legal
advise?
• Are you keeping abreast of case Law and Court of
Protection?
• Do CCG assure themselves that the NHS complies with the
MCA?
• What do contracts require trusts to report?
• Do they require any MCA audits?
• Do they stipulate that all staff need annual MCA training?
• Do they require whether Trusts have a MCA lead?
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• Are you listening to the IMCA services as they will hold the
best information on efficacy in your trusts