Safeguarding Networking
Event
Back to Basics: Mental Capacity
Tuesday 25 February 2014
Back to Basics: Mental
Capacity Act 2005
Awareness of Human Rights,
Safeguarding Adults and the
use of the Mental Capacity
Act 2005
Maria O’Connell – Mental Capacity Act
Professional Lead
Human Rights Act 1998
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The HRA 1998 applies to all Public Authorities
Article 2- The Right to Life
Article 3-The right to freedom from torture and
degrading treatment
Article 5- The Right to Liberty
Article 8- The right to respect for private and
family life & correspondence.
Article 5 ECHR
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No one shall be deprived of his liberty save in the
following cases and in accordance with a procedure
prescribed by law
EG
Relating to a criminal offence.
Mental Health Act
Immigration Laws
Deprivation of Liberty Safeguards
Autonomy, Freedom , Independence
& Unwise Decisions
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Human nature and behaviour is not exclusively
rational.
We have freedom to make decisions and choices
which may be for the better or for the worse.
We enjoy free will and as result have personal
responsibility for those decisions.
So why is it that these unwise decisions are not as
readily acceptable for individuals who are deemed as
“vulnerable” by virtue or nature of their particular
disability and/ or lack of capacity?
Background to MCA
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The Common Law lacked consistency.
People’s Autonomy not always respected.
No Legal framework/ authority for people who act
on behalf of a person lacking capacity.
Mental Capacity Act 2005
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The MCA 2005 affects people who are over 16 years old in
England and Wales. The Act sets out clear safeguards to
empower and protect a person who is assessed as not having
mental capacity. The Act makes it clear that any assessment of
a person’s capacity must be decision specific.
Assessment of capacity must be about a particular decision
that has to be made at a particular time and is not about a
range of decisions.
If someone cannot make complex decisions this does not
mean they cannot make simple decisions
You cannot decide that someone cannot make a decision upon
his/her age, appearance, condition, or behaviour.
MCA 2005- 5 KEY PRINCIPLES
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Person is assumed to have capacity. A lack of capacity has to be clearly
determined
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Nobody should be treated as unable to make a decision unless all
reasonable steps have been taken to assist them and shown not to work
maximising capacity.
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Nobody should be stopped from making a decision just because others think
it may be unwise / eccentric.
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Anything done for or on behalf of a person must be in their best interests. A
decision is arrived at by working through a checklist.
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When anything is done or decided for a person who lacks capacity it must
take in to account their basic rights and freedoms. Any decision/action should
show that the least restrictive option / intervention is achieved.
What does the act do?
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It sets out a single test of capacity assessment which is
decision specific covering emergency decisions, day to day
decisions, and complex decisions.
Introduced a new criminal offence “Ill treatment and willful
neglect”.
It allows for advanced decisions to refuse treatment.
Established the role of the IMCA service.
New Court of Protection.
Established Lasting Power of Attorney and Court appointed
Deputy.
Office of Public Guardian.
What does the Act mean?
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It puts in place a Code of Practice to give guidance.
The code of practice must be followed by those
working in a Professional capacity e.g. Social
Workers, Dr’s Nurses, and Police Officers.
The Act offers appropriate protection for carer’s, as
well as health and social care professionals, who act
in the reasonable belief that they are doing so in the
person’s best interest. They need to demonstrate that
the principles of the MCA were followed.
MCA 2005
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Provides a statutory framework to empower and
protect Adults and Young People who are not able to
make decisions for themselves.
Codifies Common Law.
It makes it clear who can take decisions, in what
circumstances and how this should be done.
It enables individuals to plan for the future for a time
when they may lose capacity in relation to treatment.
Been in force since October 2007.
MCA 2005 Code of Practice
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If you provide care and treatment or support to a
person who lacks capacity you are legally obliged
“Have regard to the code.”
The Code has statutory force but is guidance not
instruction.
Must be aware of the code when working with a
person lacking capacity you cannot follow it by
accident (by not knowing what is says).
Failure to comply with the code would be referred to
in any criminal / civil proceedings.
What is meant by Mental Capacity?
Capacity means the ability a person has to make
specific decisions or take actions that influence their life
this can be from very simple ( what to wear) to complex
decisions (consent to medical treatment where to
reside)
Section 2 (1) of MCA states that “ A person lacks
capacity in relation to a matter, if at the material time,
he is unable to make a decision in relation to the matter
because of an impairment of or a disturbance in the
functioning of the mind or brain”
Impairment or disturbance could be
caused by
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Stroke or Brain Injury
Mental Health Problems
Dementia
Learning Disability
Confusion, drowsiness unconsciousness because of
physical illness or treatment
Shock, Pain
Substance misuse (including Alcohol)
Anything else which may be causing an impairment
or disturbance!
Assessing Capacity
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There is now a 2 stage test you should follow
Stage 1
Is there an impairment of or disturbance in the functioning of the person’s or brain?
It does not have to be permanent it can be temporary.
Stage 2
Does the impairment or disturbance cause the person to be unable to make a specific
decision at the time it needs to be made?
Being unable to make a decision is defined in the Act by considering these four factors
Understanding the information
Retaining the information
Weighing the information
Communicating the decision. – by verbal and/or non- verbal means. A nod / blink/
squeeze of a hand is communication!
If the disturbance in the person’s mind or brain is causing them not to do any of the
four functions then they do not have the ability to make the decision in question.
Assessing Capacity
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You cannot decide that a person lacks capacity
based on their age, appearance, condition or
behaviour alone. Assess never assume.
Assessments are made on the balance of
probabilities. Is it more likely than not that they
lack capacity to make that decision. Record your
rationale/ reason. You as the assessor have
“burden of proof”.
How is Capacity Assessed in your
work place?
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Who carries out an assessment?
What kind of decisions are people assessed for?
Who makes the decision?
Decision Maker
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The person who assesses for capacity is usually the person
who requires the decision to be made. Dr’s Nurses, Social
Workers, care home staff, domiciliary care workers, and
informal cares, LPA’s Deputies, Police officers, Judges.
More complex the decision there may be a need for an expert /
specialist opinion to inform or may require a “Best Interest
meeting”
Decisions could include residency, medical treatment,
managing finances, what to eat / wear etc.
Carer’s both qualified and informal may need to assess
capacity- but not expected to be an expert. Need to
demonstrate they have a reasonable belief that they lack
capacity.
Best Interest Checklist
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There is a checklist that you must follow within the Act
summarised as follows
Equal consideration and non-discrimination- Make no
assumptions based on age, appearance ability etc.
All relevant circumstances- The information that the person
making the decision is aware of and would be reasonable to
consider as relevant. E.g. the best clinical / medical option
given the persons condition prognosis.
Regaining CapacityPermitting and encouraging participation
The person’s wishes, feelings, beliefs, and values
The views of other people (professionals, family, carer’s, LPA’s
Deputy appointed by the court.
New Criminal Offence (Section 44)
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Willful neglect or ill treatment of a person who
lacks capacity.
Punishable by imprisonment of up to 5 years and
/ or an unlimited fine.
Consider the impact and recognise accountability
for your decision making and actions.
Police are already considering cases.
Protection from Liability
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Have you applied the code?
You will be protected from liability from either civil or
criminal penalties provided;
OBSERVED THE 5 PRINCIPLES
CARRIED OUT AN ASSESSMENT
REASONABLY BELIEVED THE PERSON LACKED
CAPACITY
REASONABLY BELIEVE THE ACTION IS IN THE
PERSON’S BEST INTERESTS
Rights v Risks
Balancing Rights, Needs and Risks will always
be a challenging process for workers. Positive
Risk Assessment and Risk management is
essential in safeguarding Adults in both
promoting and protecting their Human Rights.
Get to know the MCA Code!
Case Study: Annie
Mandi Gay and Darren Richardson
Annie
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Diagnosis of Alzheimer’s for five years
Now in advanced stage
Lodger for last ten years
Lodger is main carer (reluctant) and there is no
other support in place
Crossing boundaries as friend
Lodger wishes to leave the property and move
into his own place.
Alzheimer’s
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Progressive illness
Most common type of dementia
Affects around 465,000 in UK
Loss of memory
Mood changes
Problems with communication and reasoning
(Alzheimer’s Society, 2012)
Referral
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Referral received through GP
GP felt Annie needed residential care
GP stated that he believed Annie would decline
support and if she did he intended to have her
removed by initiating MHA (1983)
Agreed to visit Annie and discuss concerns
raised with her and the lodger.
Issues Raised During Visit
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Visit to assess under s.47 of community care act
(1990) and gain more information
Annie was 92 years old and had never married
Worked all her life on public transport and spent
many years as a conductor before going into the
offices and management
Issues Raised During Visit
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Very independent woman and had authority in
her job, reflected in her home life
Popular woman in the local area in younger days,
though now isolated
Lodger reports a steady decline in cognitive
function over recent years
No family members
Risks
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Unable to show awareness of condition
Doubly incontinent
Needs all care anticipating
Nutrition needs not been met as lodger out much
of the time
Drinks whiskey daily-facilitated unwittingly by the
lodger
Chain smoker and does not dispose of cigarettes
properly
Risks
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Lives on 8th floor of a tower block
Poor mobility and unable to walk safely
Disoriented to time and place
Risk of sores and had sore on buttock
Isolation and dignity issues
No support in place
Unable to recognise importance of personal care
and hygiene needs compounding skin tissue
risks
Risks
Where there is a difference of gender, race or
class between social worker and service user,
there seems to be a tendency to focus unduly on
deficit and/or risk rather than on strengths and
seeking to establish how peoples’ control over
aspects of their own lives can be increased.
(Milner and O’ Byrne, 2002, p36)
Annie’s behaviour posed
significant risks to herself and
others
Easy solution?
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GP’s viewpoint was of diagnosis and treatment
Believed residential care to be solution to
problem as a “quick fix”
Could be seen as a prescriptive viewpoint (one
size fits all)
Easy solution?
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Problem focused
Residential care would be solution to Annie’s
circumstances
Accurate diagnosis allows prognosis
Can signal a cause to illness and look towards
treatments
Not seen to recognise individuality
Avoiding ageist practice
Rather than the specific medical or social issues
that give rise to need being perceived as “the
problem” it is old age itself which is seen as
needing to be addressed and, as a consequence,
the link in peoples’ minds between old age and
decline is strengthened.
(Thompson, 2005, p20)
Annie’s Viewpoint
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Annie had lived in property for many years
Oriented to environment
Wished to remain at home (stated that she would
never leave)
Was aware that lodger lived with her and felt that
he was trying to have her removed
However, unable to ascertain her own needs
Lodger’s Viewpoint
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No longer wished to be involved with care
Wished to leave the property as soon as possible
Role as friend/lodger had become blurred with
that of carer
Respect for Annie had made him feel duty to
continue
Carers assessment offered under Carers Act
1995/2004, but declined (tokenistic gesture?)
Social Model
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Society disables individuals who are not of the
majority
Places emphasis on environment and/or
labelling; factors that often compound mental
health difficulties
Systemic approach should be utilised in order to
see the whole picture
Social Model
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Providing opportunities increases quality of
life and alleviates mental health difficulties
Model does not stigmatise and rests on
foundation of equality
Promotes and works jointly with a strengths
perspective
Not seen as a cure, but rather helps people
manage difficult experiences
Mental Health Act
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Annie was not suffering in nature or degree that
warranted detention (MHA 1983)
Was at risk due to disorder and mental illness
Although she declined services, it was felt that
she lacked capacity to make decision on her own
well being needs and the likelihood of harm was
high
Mental Capacity Act
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Annie had impairment/disorder of the mind and
brain
Capacity assessment carried out under s2-3 on
MCA
Confirmed that she lacked capacity to support
own well being needs
Unable to understand her situation, retain the
information given in order to make decision or
weigh and balance her options
Mental Capacity Act
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Best interests discussed with both Annie and her
lodger. Allowed reduction of power imbalances
and promoted ADP
Felt that least restrictive principle could keep
Annie in her own home
Services put in place at home rather than remove
Annie from her property under s.5 MCA (2005)
Services Utilised/Partnership
Working
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Urgent package of care in place
Day centre implemented due to isolation.
Previous community involvement and popular
person
Continence support via continence nurse
Occupational Therapy referral
Assistive technology put in place (arguments that
this infringes people’s Article 8 rights)
Services Utilised/Partnership
Working
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Referral to district nursing team for support with
skin sores
Referral to memory services through GP with
feed back that Annie would remain in her own
home
Follow up visit jointly with CPN
Fire retardant blankets given by fire service due
to risks with smoking.
Smoking restricted to times when Annie could be
monitored. Annie complied with this.
Reducing risk?
Many older or disabled service users…are more
exposed to risk than others because more people
have intimate access to them in their daily lives.
There may be different homecarers coming into
their private space every day, perhaps someone
they don’t know coming in to wash, bathe and
dress them.
(Thompson, 2005, p53)
Outcome
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Annie not too resistive of care and quickly
adjusted to routine with encouragement and few
restrictions.
Improvement in Annie’s emotional health
observed
Maintenance of safety within the home
Monitoring of well being with care package in
place
Lodger was able to move to another property
Annie remained in her own home
Thanks for listening
Kirklees and Wakefield
Independent Mental
Capacity Advocate
(IMCA) Service
Heather Walinets - Project Coordinator / IMCA
Sarah Goodfellow –IMCA
Katie Littlewood - IMCA
Independent Mental Capacity Advocate
Service
• April 2007 the Department of Health brought in the first
part of the Mental Capacity Act 2005 - part of the Act made
provision for a new statutory service called the ‘Independent
Mental Capacity Advocate’ Service
• ‘Together for Mental Wellbeing’ were awarded a 3 year
contract by Kirklees and Wakefield Councils to provide their
IMCA service. The contract was extended for 2 years and
was further extended for a another 3 years
• ‘Together for Mental Wellbeing’ now hold the contract until
September 2015
The 5 Core Principles of the MCA
• 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 (do-able) 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 this Act 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.
WHAT IS THE CRITERIA FOR IMCA ?
It must be proven that an individual lacks capacity to make
the specific life changing decision for themselves
AND
The individual must have no family or friend willing to be
involved in the specific decision (paid carers are not
regarded as family or friend) ****
When can you involve an IMCA?
Changes of accommodation
Serious Medical Treatment or the withdrawal
of Serious Medical Treatment. End of life care
planning and decision making. Gold Standard
framework.
Safeguarding cases
Care Reviews
Independent Mental Capacity Advocate
The DOH specified two ways that Social and Medical
services would engage the IMCA service
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A STATUTORY DUTY
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A DISCRETIONARY POWER
Statutory Duty
The Statutory Duty to involve an IMCA applies to anyone
providing a service for an individual who lacks the
capacity and has no family or friends, that want to be
involved, while facing a specific life changing decision
concerning:
The provision of, withholding or withdrawing of serious
medical treatment, or
When a long term accommodation or move to hospital,
for longer than 28 days, or to a residential care home, for
more than 8 weeks is proposed
Discretionary Power
The Discretionary Power to involve an IMCA applies to
anyone involved in decisions concerning:
Safeguarding Adults cases *** FAMILY CAN BE INVOLVED!
Only exception!
A care review following an accommodation decision
If the Decision Maker believes that the individual will
benefit from IMCA involvement in the above
circumstances
Safeguarding Examples
• Financial abuse
• Physical abuse
• Sexual
• Psychological
• Neglect
What is a Decision Maker ?
Under the Act, many different people may be required to
make decisions or act on behalf of someone that lacks
capacity to make decisions for themselves. The person
making the decision is referred to throughout the Mental
Capacity Act 2005 Code of Practice as the ‘Decision
Maker’, and it is the decision maker’s responsibility to work
out what would be in the best interests of the person who
lacks capacity Mental Capacity Act 2005 Code of Practice 5.8 page 69
A Decision Maker must be identified for all cases,
especially where a Multi Disciplinary Team is involved
Generic Advocate or IMCA ?
…. The Difference
• Individuals must be accredited by the Department of
Health and the Local Authority to work as an IMCA
• Generic advocates take instruction from the person they
are working with
• IMCA’s work to a ‘best interest’ decision for the person
• Generic advocates can support individuals with multiple
issues
• IMCA’s need a referral for each appropriate decision
• There are statutory rules about when to involve an IMCA
• An IMCA can access and copy medical and social care
notes
RECAP
Independent Mental Capacity Advocate
An IMCA should only be involved if there is no appropriate
family member or friend willing to be included in the specific
decision. This does not apply to paid Carers
The exception to this is Safeguarding Adults cases which
may involve a Deputy, a named person or the holder of a
Lasting Power of Attorney.
An IMCA works with individuals who lack the capacity to
make a specific life changing decision for themselves
The Role Of The IMCA
The IMCA provides independent representation by
gathering information from any relevant sources about the
individual’s current or past wishes, cultural, religious and/or
known needs.
The IMCA provides points for consideration before the best
interest decision is made
The IMCA does not make the decision
The Role Of The IMCA
The IMCA can request a second capacity assessment
The IMCA can request further medical opinions if they
believe this will help them gain a clearer understanding
of the individual’s needs, available treatments or best
interest outcomes
The IMCA can request access to, and make copies of,
records about the individual that are deemed by the
holder to be relevant to the decision
Common Issues
Be decision specific – not a mini mental test!
Does the Decision Maker know they are the decision maker?
We don’t make decisions!
Decision specific! 2 decisions = 2 referrals!
We need to be involved before the decision is made!
Please give us time to do our job!
We don’t mediate between decision maker and family!
The Role Of The IMCA
The IMCA has a duty to submit a written report to the
decision maker
The report presented by the IMCA must be taken into
consideration by the Decision Maker. The Decision Maker
may disagree with the IMCA and it is important that any
areas of disagreement are discussed
The decision must be reported to the IMCA.
The IMCA can challenge the decision through the relevant
complaints procedure, Ombudsman or Court of Protection
How Do You Make A Referral ?
Anyone can refer .........
Discuss with your team the decision needed and whether it
is a Statutory Duty or Discretionary Power to refer
Telephone the Together IMCA Service to discuss your
referral and/or any questions you may have
If your referral meets the Mental Capacity Act criteria a
referral form will be emailed or faxed to you. The referral
will be acknowledged upon receipt and the case opened
within 3 working days based on priority
Referral Form Checklist
• What is the Decision required ?
• Does the individual lack Capacity for the decision ?
• Are there any family or friends willing to be involved ?
• Who will be the named Referrer ?
• Who is the appropriate Decision Maker ?
• What are the Contact Details of the person that will
arrange meetings ?
• What Date do you need the decision by ?
Every box on the Referral Form needs be completed or it
may slow down your referral and/or the decision
Deprivation of Liberty
39A Imca – Standard or urgent
39C Imca – No RPR
39D Imca – support to RPR or relevant
person ..........
39D can be requested by RPR, relevant
person or Supervisory Body.
Paid RPR
Paid RPR
Maintain regular contact
Comply with Code of Practise
Ensure DoL is legal
Support the Relevant Person through the
process.
Challenge the DoL on behalf of relevant
person
Challenge the DoL as RPR
Call for a review if things change.
Thank you for Listening
Any Questions ?
Deprivation of Liberty
Safeguards
Overview of the BIA Role
Mandi Gay and Darren Richardson
History of Deprivation of Liberty
Safeguards (DoLS)
History of DoLS/MCA (2005)
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Mental Capacity Act (2005) came into force in 2007
Mental Health Act (1983) only other legal framework
before this time.
Amendment in 2007 introduced the MCA
Mental Capacity Act applies to everyone over 16
years
Needed due to ‘Bournewood Gap” and lack of rights
for those detained.
HL Case highlighted need for change
History of DoLS/MCA (2005)
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Within s 4 (A) and (B) Mental Capacity Act (2005)
and became effective from April 2009.
Allows for a person over 18 years to be deprived
of liberty as long as certain criteria are met
Compliant with the relevant Articles of European
Convention of Human Rights (ECHR)
Criteria for someone to be deprived
of liberty under DoLS
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Must be over 18 years
Must be experiencing an impairment of, or a disturbance
in the functioning of, the mind or brain (s.2 MCA)
Must not have the ability to make THE decision that
needs to be made at the time it needs to be made,
through lacking the ability to either understand, retain,
weigh and balance, or communicate.
Must be placed within a registered care home or hospital.
Only the CoP has authority to deprive someone of liberty
outside of this environment.
Who is the Best Interests Assessor?
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Nurse
Occupational Therapist
Psychologist
Social Worker
Specifically trained for this purpose with an
accredited qualification
What is a Deprivation of Liberty?
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No legal definition for a DoL Depends on number of
restrictions in place
Frequency and intensity of restrictions and effect on P’s
quality of life
The impact on the restriction of the individual’s liberty
must be considered whether that individual resists or not
(s.6 MCA)
What is the ‘Norm?’ - over and above those to be
expected as normal in the case of a person of similar age,
capabilities and experiencing the same level of disability?
DoLS Terms and Meanings
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Managing Authority – Hospital or Care Home that person
resides within
• Supervisory Body – Local Authority that oversees and
regulates the care home or hospital
• Within DoL Safeguards there are two authorisations given.
1. Urgent Authorisation – Allowable for seven full days. Time
begins when the request is made to the Supervisory Body by
the Managing Authority.
2. Standard Authorisation – Assessments must be completed
within 21 days.
DoLS assessment must be completed within these time frames
with a recommended outcome for the person.
BIA Role within DoLS
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To decide whether a person is deprived of liberty
within the meaning of the Act.
To determine whether this deprivation is legal
To determine whether the deprivation should
continue in P’s best interests
To give a recommendation on future care
If necessary, to make a determination on whether
a deprivation of someone’s liberty should
continue and for how long.
BIA Role within DoLS
To Follow the principles of the Act:
1.A person must always be assumed to have capacity
unless established that they do not
2.All practicable steps must be taken to help them make the
decision
3.A person must not be treated as lacking capacity simply
for making unwise decisions
4.Any act done, or decision made on behalf of a person
lacking capacity must be made in that person’s best
interests
5.The least restrictive option must always be used
BIA Role within DoLS
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Consult with the Managing Authority (hospital or care home)
Consult with any person suggested by those detained where
possible
Must have regard to the findings of the Mental Health Assessor
To examine the care plan, needs assessment of P
Where practicable and appropriate to consult anyone named
by P, or anyone engaged in the caring role or interested in his
welfare
Anyone done of Lasting Power of Attorney or a Court
Appointed Deputy
Case Study: Annie
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Unfortunately Annie had a chest infection and this was
not responding to treatment at home. Due to her health
deteriorating she was admitted in hospital.
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Annie following her hospital treatment was recovering and
deemed medically fit for discharge, but not well enough to
return to her home. Assessments showed she still
required significant care and support from a nurse over 24
hrs.
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A Capacity Assessment and Best Interest meeting was
held at the hospital and the decision was made for Annie
to be discharged from hospital to the Apple Care Nursing
Home.
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Initially Annie was compliant with all aspects of her care –
however this may have been as she was still recovering.
When Annie came to be at her optimum she was
continually asking to go home, stating that staff are
keeping her prisoner and that they wouldn’t let her out.
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Annie, when asking to go home was banging doors and
when staff from the Apple Care home approached her
she became agitated, resistive and aggressive towards
them. These incidents happened frequently and lasted for
some time which caused her some distress.
Annie was under close supervision throughout a 24 hours
period as she was still smoking heavily but not disposing
of her cigarettes safely.
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Staff had genuine concerns for her safety and had to
prevent her from leaving the care home without an escort
and felt that they were now depriving her of her liberty.
The Care Home Manager contacted the local authority
requesting an urgent DoL’s Authorisation.
Assessment Process
6 Assessments in all:
1.Age Assessment
2.No refusals Assessment
3.Eligibility Assessment
4.Mental Health Assessment
5.Mental Capacity Assessment
6.Best Interests Assessment
Carried out by BIA and S.12 (MHA) Doctor
What will the BIA do as part of their
duties?
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Visit the care home or hospital
Interview the person deprived
Scrutinise care plans and medical notes – important that case notes
and care plans are as detailed and informative as possible
Interview staff members
Interview family members
Interview the Relevant Person’s Representative if this is not a family
member
Interview anyone that the deprived person asks us to speak with, so
long as this is practicable
Seek past information via alternative technological databases via
health and social care agencies.
Outcome of BIA Decisions
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BIA must reports as to whether a DoL is occurring and whether
this is legal – must not be implemented for the convenience of,
or due to lack of services
Must record every interested person that has been consulted
Must decide whether the DoL should remain in place and
record the reasons why this is in the best interests of the
person
Must give a maximum authorisation period (maximum of 12
months)
Must give any recommendations or conditions that they feel
appropriate to ensure P’s best interests are met
Must recommend a Relevant Person’s Representative if the
person lacks the capacity to do so independently.
Relevant Person’s Representative
(RPR)
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RPR needs to be over 18 years of age
Must be able to visit the person regularly
Must be willing to take on the RPR role
Must have the ability to act in the best interests of the person in line with
section 4 of the MCA.
RPR must not be:
• financially interested in the relevant person's managing authority
• a relative of a person who is excluded in the above point
• employed by, or providing services to, the care home in which the person
relevant is residing
• employed by the hospital in a role that is, or could be, related to the treatment
or care of the relevant person
• employed to work in the relevant person's supervisory body in a role that is,
or could be, related to the relevant person's case
Duties and Rights of the RPR
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RPR could also be an IMCA if there are concerns
and risks to P, or if there is nobody to take on this
role informally
RPR has the right to access information regarding
the care and welfare of the person within the care
home/hospital
Has the right to put forward a complaint to the
supervisory body or request a review of the DoL
The right to appeal the DoL on the person’s behalf to
the Court of Protection if they remain unhappy with
the reason for the DoL.
Final important points
In order for a fair and just outcome to any DoL assessment it is essential
that the following are in place:
• Availability and engagement with BIA, particularly home manager/key
worker/staff nurse/ward sister
• Care plans/risk assessments and all paperwork are up to date and as
detailed as possible
• Seek advice as soon as possible regarding DoL to avoid unnecessary
referrals for restrictions that would not meet DoLS criteria – Contact
DoL Team office
• Best interests of the person to be upheld at all times
• Incorporate family within the person’s care plan and keep them
involved as much as possible
Any Questions?
The DoLS Administration
Process
DoLS Administration Process
What should a Managing Authority
do if they suspect they are depriving
someone of their liberty?
DoLS Administration Process
What Forms should a Managing
Authority complete?
DoLS Administration Process
What are the Time Constraints?
DoLS Administration Process
Who do I contact at the Supervisory
Body?
DoLS Administration Process
Who knows the answer to all your DoLS
administrative questions?
Wendy Roberts
Tel: 01924 305923
Is it better to ask if you are unsure?
Yes it is
Safeguarding Networking
Event
Back to Basics: Mental Capacity
Tuesday 25 February 2014