In Control Conference
Tuesday 16th March 2010
The Mental Capacity Act and
Deprivation of Liberty
Mathieu Culverhouse
Irwin Mitchell Solicitors
mathieu.culverhouse@irwinmitchell.com
The Mental Capacity Act and Deprivation of Liberty
The Mental Capacity Act 2005: What is it?
•
Passed by Parliament in 2005 after wide consultation
•
Covers England and Wales and came into effect in two stages on 1st April and 1st
October 2007
•
Establishes a single and comprehensive legal framework for decision making for
people over the age of 16 who may not be able to make their own decisions due to
illness, learning disability or mental health problems (including effects of
drugs/alcohol or temporary loss of capacity)
•
Deals with personal welfare issues, property and general affairs of an individual
The Mental Capacity Act and Deprivation of Liberty
Why did we need a new Act?
•
2 million people lack capacity to make decisions for themselves (dementia, learning disabilities,
mental health problems, stroke, brain injury)
•
Up to 6 million informal carers with no clear guidance as to how decisions are to be made and by
whom
•
No legal basis for “next of kin”
•
Court of Protection had jurisdiction over financial affairs only (Lunacy Act 1890) and jurisdiction
relates to mental disorder only (Mental Health Act 1959) so excluded drug/alcohol related
conditions
•
Enduring Powers of Attorney Act 1985
•
Mental Health Act 1983 – restricted powers
•
Need for a comprehensive and workable legal framework
The Mental Capacity Act and Deprivation of Liberty
Capacity to do what?
•
Make decisions in relation to:
•
Financial Affairs
•
Court of Protection
•
Power of Attorney/ Wills
•
Health and Personal Welfare e.g
•
Consent to medical treatment
•
Where to live/care arrangements
•
Personal Conduct
•
–
who to associate with
–
marriage and sexual relations
Litigation process
The Mental Capacity Act and Deprivation of Liberty
What is Capacity?
New test (Section 2 MCA 2005):
“a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in
relation to the matter because of an impairment of, or a disturbance of, the mind or brain”
There is no universal test and there is a different test for different purposes.
Section 3
A person is unable to make a decision for himself if he is unable to:
a.
Understand the information relevant to the decision.
b.
Retain that information.
c.
Use and weigh that information as part of the process of making the decision-making.
d.
To communicate his decision (whether by talking, using sign language or any other means).
The Mental Capacity Act and Deprivation of Liberty
Decision Making Under the Mental Capacity Act
A DECISION OR SERIES OF DECISIONS IS REQUIRED TO BE MADE FOR A PERSON
ARE THERE CONCERNS ABOUT CAPACITY TO MAKE THAT DECISION?
NO
GO AHEAD ON PERSON’S INSTRUCTIONS WITH
THEIR CONSENT
YES
CONSIDER IF THE PERSON HAS THE CAPACITY TO MAKE THAT SPECIFIC DECISION
AT PRESENT (MAY SEEK FORMAL ASSESSMENT)
YES
ASSESSED AS HAVING CAPACITY FOR THAT
SPECIFIC DECISION
NO
CONSIDER STRATEGIES TO ASSIST THE PERSON TO MAKE THEIR OWN DECISION
CAN THE PERSON MAKE THE DECISION WITH ASSISTANCE?
YES
NO
PERSON LACKS CAPACITY TO MAKE DECISION – CONSIDER WHAT COURSE OF ACTION IS IN PERSON’S BEST INTERESTS AND
CONSULT IF APPROPRIATE
MAY TAKE INSTRUCTIONS FROM DEPUTY, ATTORNEY OR SEEK DIRECTIONS FROM COURT OF PROTECTION
The Mental Capacity Act and Deprivation of Liberty
Key Principles of the Act
There are five key principles in the Act:
•
Every adult has the right to make his or her own decisions and must be assumed to have capacity
to make them unless it is proved otherwise.
•
A person must be given all practicable help before anyone treats them as not being able to make
their own decisions.
•
Just because an individual makes what might be seen as an unwise decision, they should not be
treated as lacking capacity to make that decision.
•
Anything done or any decision made on behalf of a person who lacks capacity must be done in
their best interests.
•
Anything done for or on behalf of a person who lacks capacity should be the least restrictive of
their basic rights and freedoms.
The Mental Capacity Act and Deprivation of Liberty
The Duty To Act In The “Best Interests”
Section 4. of the Act sets out a framework for considering what is in a person’s “best interests” and as
far as possible the decision maker should consider:
•
The person’s past and present wishes and feelings (including any written statement made when
he had capacity)
•
The beliefs and values that they would be likely to have if they had capacity
•
Factors they would consider “if able to do so”
•
The views of others should also be consulted, if appropriate, namely:–
Anyone named by the person as someone to be consulted
–
Anyone caring for the person or interested in their welfare
–
Anyone appointed under a Power of Attorney
–
Any deputy appointed by the Court
MCA does not define best interests, but does give a checklist which probably should be used as a
checklist.
The Mental Capacity Act and Deprivation of Liberty
Independent Mental Capacity Advocates (IMCAs)
•
Extra safeguard for particularly vulnerable people in specific situations. Medical
treatment/long stay accommodation decisions.
•
Duty on local authorities or NHS bodies to provide this service where necessary
•
Who? - People with no-one to consult or speak for them (other than paid carers)
•
When? - When decisions are being made about serious medical treatment or
significant changes of residence e.g. moving care homes or hospital
•
What? - The IMCA represents and supports the person who lacks capacity. The IMCA
makes representations about the person’s wishes, feelings, beliefs and values, at the
same time as bringing to the attention of the decision-maker all factors that are
relevant to the decision. The IMCA can challenge the decision-maker on behalf of the
person lacking capacity if necessary.
The Mental Capacity Act and Deprivation of Liberty
MCA section 5: acts in connection with care and treatment
The MCA provides legal protection from liability for carrying out certain
actions in connection with the care and treatment of people who lack
capacity to consent, provided that:
• reasonable belief that the person lacks capacity in relation to the
matter in question
• reasonable belief the action you have taken is in the best interests of
the person.
The Mental Capacity Act and Deprivation of Liberty
Use of restraint: Section 6 MCA
• Use of restraint not protected under section 5 unless:
– Reasonably believes that it is necessary to prevent harm
– Proportionate response to that risk and likely nature of that harm
• Deprivation of Liberty is excluded
The Mental Capacity Act and Deprivation of Liberty
Deprivation of Liberty Safeguards
Provisions of the Code of Practice
“The deprivation of a persons liberty is a very serious matter
and should not happen unless absolutely necessary, and in
the best interest of the person concerned. That is why the
safeguards have been created: to ensure that any decision
… is made following defined processes and in consultation
with specific authorities”
The Mental Capacity Act and Deprivation of Liberty
What do we mean by “deprivation of liberty”?
The Mental Capacity Act and Deprivation of Liberty
Deprivation of Liberty
•
Restraints and Restrictions
•
Deprivation of Liberty
•
“The distinction between a deprivation of, and a restraint upon, liberty is
merely one of degree or intensity and not one of nature or substance” HL v
United Kingdom
•
Each individual case must be assessed on its own circumstances – be
aware of previous cases
The Mental Capacity Act and Deprivation of Liberty
Deprivation of Liberty
• DOL is ultimately a legal question
• Account must be taken of the type, duration, effects and
manner of implementation of the measure in question
• Number of indicators and examples in the Code of
Practice
The Mental Capacity Act and Deprivation of Liberty
DOL Indicators
• Complete and effective control over care and movement
for a significant period
• Conscious decision taken that if P tries to leave, this will
be prevented
• Restraints (including sedation) regularly used or used to
admit to placement
The Mental Capacity Act and Deprivation of Liberty
DOL Indicators
• Staff exercise control over assessments, contacts,
treatment and residence
• Request for discharge refused
• Loss of autonomy due to continuous supervision and / or
control
The Mental Capacity Act and Deprivation of Liberty
Checklist of Factors
• Degree of control over care and movement
• Presence of any physical or other restraints
• Ability to maintain social contact of choice
• Refusal to accede to personal or relatives requests for discharge
• Continuous Supervision
The Mental Capacity Act and Deprivation of Liberty
Deprivation of Liberty Safeguards
Restraint
DOL
Doors locked but P can leave
→
Locked doors and P rarely goes out
P is prevented from leaving unless escorted for safety reasons
→
P never leaves without escort. Escort not always
available
Some control over P by staff
→
Extensive control over P by staff
Contact with others limited by visiting hours
→
Contact with others limited by additional rules
P given some choice over daily activity
→
Continuous Supervision leads to a complete loss
of control over daily living
The Mental Capacity Act and Deprivation of Liberty
Checklist of factors
•
Degree of control over care and movement
•
Presence of any physical or medical restraints
•
Advance decision that the person will not be released.
•
Ability to maintain social contact of choice
•
Refusal to accede to personal or relatives request for discharge
•
Continuous supervision, monitoring or control
The Mental Capacity Act and Deprivation of Liberty
Summary – Deprivation of Liberty
•
Summarise what the elements of the care plan will be measured against the list
above
•
Consider the effect of the arrangement on the person’s individual freedom and
expressed intentions
•
Assess the views of those concerned for the persons welfare
•
Overall cumulative effect going beyond mere “restriction”?
•
If DOL – follow the DOLS process
The Mental Capacity Act and Deprivation of Liberty
Deprivation of Liberty Safeguards
•
Provide a procedure for deprivation of liberty to be authorised by delegated arms of
the state
•
Provide a safeguard for vulnerable people who “best cared for” in a residential care
home or hospital
•
Do not apply if:–
Person is aged under 18
–
Person has capacity to make their own decision
–
Person requires treatment under the Mental Health Act procedures
The Mental Capacity Act and Deprivation of Liberty
Process overview
•
Identification of the need for an authorisation
•
Application for authorisation
•
Initial consideration by the supervising authority
•
Assessment
•
Assessment outcome
•
Review
The Mental Capacity Act and Deprivation of Liberty
DOLS Assessment
•
Age assessment
•
No refusals assessment
•
Mental capacity assessment
•
Mental health assessment
•
Eligibility assessment
•
Best interests assessment
The Mental Capacity Act and Deprivation of Liberty
DOLS Authorisation
• If all 6 assessments are supportive the supervising authority must
written authorisation
• Authorisation must have a time limit and may impose conditions
• Notification of decision to managing authority, the person concerned,
IMCAs etc
• Limits on the effect of the authorisation
The Mental Capacity Act and Deprivation of Liberty
Role of the Court in DOL cases
DOLS Code of Practice
•
“What orders can the Court of Protection make?
•
10.10 The court may make an order: 􀁳 varying or terminating a standard or urgent authorisation, or 􀁳 directing the
supervisory body (in the case of a standard authorisation) or the managing authority (in the case of an urgent
authorisation) to vary or terminate the authorisation.
•
What is the role of the Court of Protection in respect of people lacking capacity who are deprived of their liberty in
settings other than hospitals or care homes?
•
10.11 The deprivation of liberty safeguards relate only to circumstances where a person is deprived of their liberty
in a hospital or care home. Depriving a person who lacks capacity to consent to the arrangements made for their
care or treatment of their liberty in other settings (for example in a person’s own home, in supported living
arrangements other than in care homes or in a day centre) will only be lawful following an order of the Court of
Protection on a best interests personal welfare matter (see paragraph 6.51 of the main Code).
•
10.12 In such a case, application to the Court of Protection should be made before deprivation of liberty begins. A
Court of Protection order will then itself provide a legal basis for the deprivation of liberty. A separate deprivation of
liberty authorisation under the processes set out in this Code will not be required.”
•
On appeal from a DOLS authorisation there is a specific Practice direction supplementing Part 10A COPR
www.hmcourts-service.gov.uk/.../court_protection/DOL-PD-proposedfinalsignaturedraft-270209-1.doc
•
Where DOLS does not apply, in a straight application for court authorisation the court can make s16 and 17 MCA
orders authorising DOL.
The Mental Capacity Act and Deprivation of Liberty
DOL caselaw
•
•
Munby J in Salford CC v BJ (2009)EWHC 3310 (Fam) provides the authorities for the court’s (inherent and
then COP) jurisdiction and approach in DOL cases
“19. Both my judgment in this case, Re GJ, NJ and BJ (Incapacitated Adults) (2008) EWHC 1097 (Fam),
[2008] 2 FLR 1295, and my earlier judgment in Re PS (Incapacitated or Vulnerable Adult) (2007) EWHC 623
(Fam), [2007] 2 FLR 1083, have been referred to, seemingly with approval, both by the President of the
Family Division, sitting in the Court of Protection, in A Primary Care Trust and P v AH and a Local
Authroirty [2008] EWHC 1403 (Fam) [2008] 2 FLR 1196, and by Charles J, also sitting in the Court of
Protection, in GJ v The Foundation Trust and others [2009] EWHC 2972 (Fam). The opportunity the present
application has afforded me to consider the topic again does not cause me to alter any of the views I have
previously expressed. My starting point, therefore, is what I said in Re GJ, NJ and BJ (Incapacitated Adults)
(2008) EWHC 1097 (Fam), [2008] 2 FLR 1295.
20. At the time I delivered that judgment, the deprivation of liberty amendments to the Mental Capacity
Act 2005 effected by the Mental Health Act 2007 (the new sections 4A, 4B and 16A and the new Schedules
A1 and 1A) were not yet in force. They have since been brought into force, but it is correctly common
ground that Schedule A1 does not apply to BJ, because his accommodation at MH is not a “hospital or care
home” within the meaning of Schedule A1, paragraph 1(2). Nor does section 4B of the 2005 Act apply, for
BJ’deprivation of liberty is not for either of the purposes referred to in section 4B(3). Nor does section 16A
of the 2005 Act apply, for BJ is not “ineligible to be deprived of liberty by this Act”, his situation not being
one of those referred to in Schedule 1A. “
The Mental Capacity Act and Deprivation of Liberty
DOL caselaw
•
•
•
21. It follows that, consistently with the general analysis of Article 5 set out in Re PS (Incapacitated or
Vulnerable Adult [2007] EWHC 623 (Fam) [2007] 2 FLR 1083, and Re GJ, NJ and BJ (Incapacitated Adults)
[2008] EWHC 1097 (Fam), [2008] 2 FLR 1295, any continuing deprivation of BJ’s liberty is permissible only
if sanctioned by either:
i) the Family Division of the High Court exercising its inherent jurisdiction in relation to incapacitated or
vulnerable adults: see Re PS (Incapacitated or Vulnerable Adult [2007] EWHC 623 (Fam), [2007] 2 FLR
1083, and Re GJ, NJ and BJ (Incapacitated Adults) [2008] EWHC 1097 (Fam), [2008] 2 FLR 1295; or
ii) the Court of Protection exercising its powers in accordance with section 15(1)(c) of the 2005 Act: see
Surrey County Council v MB [2007] EWHC 3085 (Fam) and A Primary Care Trust and P v AH and a Local
Authority [2008] EWHC 1403 (Fam), [2008] 2 FLR 1196; or
iii) the Court of Protection in accordance with sections 4A(3), 4A(4) and 16(2)(a) of the 2005 Act.: see GJ v
The Foundation Trust and others [2009] EWHC 2972 (Fam).
22. Unsurprisingly, because everything eventually turns on Article 5 and the Strasbourg jurisprudence, the
Court of Protection exercises these statutory jurisdictions in accordance with the same principles as the
High Court applies when exercising its inherent jurisdiction: see Surrey County Council v MB [2007] EWHC
3085 (Fam) at paras [29], [69], A Primary Care Trust and P v AH and a Local Authority [2008] EWHC 1403
(Fam), [2008] 2 FLR 1196, at paras [29]-[32], and GJ v The Foundation Trust and others [2009] EWHC 2972
(Fam), at para [23].
The Mental Capacity Act and Deprivation of Liberty
DOLs/DOL
•
Growing body of case law includes…
•
DOL possible in the family home?; Physical restraints automatically DOL? ; Inherent Jurisdiction overlap?
•
GJ V The Foundation Trust [2009] EWHC 2972 (Fam) Charles J - This judgment was concerned with the interface issues between the
MHA and MCA DOLS, in circumstances where a person is, or may need to be, deprived of their liberty in order to be treated in hospital
wholly or partly for their mental disorder.
•
W PCT v B[2009 ] EWHC 1737 (Fam) Wood J - The Court of Protection found that TB was eligible to be deprived of her liberty by the
Safeguards, if it were in her best interests to do so, as she was not a mental health patient as defined under schedule 1A of the Mental
Capacity Act 2005, because the authorisation related to a care home which was not a hospital within the meaning of Pt 2 of the Mental
Health Act ( see s.145(1) Mental Health Act).
•
LB Enfield v SA 2010 EWHC 196 (Admin) in the COP Macfarlane J - The Judgment followed a 3 day fact-finding hearing and contains a
number of points of law including:
–
Hearsay evidence is admissible in COP proceedings, including evidence from P;
–
Where proceedings are ongoing, any decision to do an ‘Achieving Best Evidence’ interview by the police should be subject to a direction
from the COP Judge;
–
The Local Authority are under a duty of full and frank and ongoing disclosure. Specific wording is advised at para 58 of the Judgement where
disclosure is requested.
–
Judicial continuity should be standard in the COP as it is in Children Act proceedings where there is a fact-finding hearing followed by a final
hearing of the matter to consider best interests.
The Mental Capacity Act and Deprivation of Liberty
Further help
• Deprivation of Liberty Safeguards available online at the DoH
website
• Further details and latest documents in DoL secion of DoH website:
• http://www.dh.gov.uk/en/SocialCare/Deliveringadultsocialcare/Menta
lCapacity/MentalCapacityActDeprivationofLibertySafeguards/index.h
tm
In Control Conference
Tuesday 16th March 2010
Mathieu Culverhouse
Irwin Mitchell LLP
mathieu.culverhouse@irwinmitchell.com