Mental Capacity Act and Deprivation of
Liberty Safeguards
Mark Crawford - MCA Advisor
MCA Team
County Hall
Mental Capacity Act (underlying principles)
•
A person (16+) must be assumed to have capacity unless it is
proved otherwise.
(the law does not allow for judgements based on diagnosis,
age, appearance, behaviour)
•
Everyone should be given all the help and support they need to
make a decision, before anyone concludes they cannot make
their own decision.
•
A person is allowed to make what might be seen as an unwise
or eccentric decision – this does not in itself indicate a lack of
capacity
•
Any actions or decisions made on behalf of someone who
lacks capacity must be in their best interests.
•
Any actions or decisions should aim to be the least restrictive,
in terms of the person’s rights and freedom of action.
Requirements of the person assessing capacity
No need for qualifications.
Knowledge of reasonably foreseeable consequences, risks and
benefits of the decision
Communication skills
Preferably – a knowledge of the person and their history (avoids
‘stranger danger’)
How to Determine Capacity
In order a person to be unable to make their own decisions
they must meet the two stage legal test of capacity. This states
that:
i)
there must be an impairment of, or disturbance in, the
functioning of the mind or brain; and
ii)
this impairment or disturbance must be sufficient that the
person lacks the capacity to make that particular decision
It is necessary to apply the following test.
Can the person:
• understand the information relevant to the decision
• retain the information long enough to make the decision
• use or weigh the information to come to a decision
• communicate that decision (in any way recognised by the
assessor)
It is important to note that each determination of capacity is
specific to the particular decision in question and to the
particular time at which the decision is made.
Best Interest Decision Making
The MCA Code of Practice sets out a checklist which every decision
maker must use when making decisions on behalf of other people.
This emphasises that:
•The person’s wishes, feelings, beliefs & values must be taken into
consideration
•The person must be involved in and participate in the decision as
much as they are able to, with appropriate support.
•The views of others involved in their care must be considered
• All the relevant circumstances must be considered
• Judgements must be made in a balanced and nondiscriminatory way, looking at medical, social, emotional, and
psychological effects on the person, in relation to the proposed
decision
• An Independent Mental Capacity Advocate (IMCA) must be
involved where the decision involves serious medical treatment,
or a change in accommodation, and there are no family or
friends to consult
• Consideration must also be given as to whether the person
might regain capacity and whether the decision could be
postponed until then
Supreme Court Judgement 19/3/2014
This involved three young people whose Learning Disabilities
mean that they require high levels of supervision and control to
ensure they receive the care the need
One was in a small care home, one was in supported housing
and one was in an adult fostering placement
The Supreme Court found that all three were deprived of their
liberty and Lady Hale’s main judgment gave a clearer definition
of what might be a deprivation of someone’s liberty
P, or MIG
An 18 year old woman with a moderate to severe learning
disability and problems with her sight and hearing, who requires
assistance crossing the road because she is unaware of danger.
She lives with a ‘foster mother’ (commonly called adult
placement, or shared lives) whom she regards as ‘mummy.’ Her
foster mother provides her with intensive support in most
aspects of daily living. She is not on any medication.
She has never attempted to leave the home by herself and
showed no wish to do so, but if she did, her foster mother would
restrain her in her best interests. She attends a further education
unit daily during term time and is taken on trips and holidays by
her foster mother.
A typical situation that might now fall within the expanded
definition of deprivation of liberty is that of an older person with
dementia, living at home with considerable support.
Staff monitor her well-being continuously at home because she
forgets to eat, is unsafe in her use of appliances, and leaves the
bath taps running; she is accompanied whenever she leaves her
home because she forgets where she lives and is at risk of road
accidents or abuse from others.
She shows no sign of being unhappy or wanting to live
elsewhere, but, in her best interests, she would not be allowed
to leave to go and live somewhere else even if she wanted to.
Supreme Court Judgement - Identifying a
Deprivation of Liberty...
The Supreme Court’s ‘acid test’ has two key elements:
Is the person subject to continuous supervision and
control?
and
Is the person free to leave?
It is now clear that if a person lacking capacity to consent to the
arrangements is subject both to continuous supervision and
control and not free to leave, they are deprived of their liberty.
What is no longer relevant?
There are now a range of factors that are no longer relevant to
identifying a deprivation of liberty (although might still be important when
looking at whether the deprivation is in the person’s Best Interests).
The factors ruled as irrelevant by the court include:
–the person’s compliance or happiness or lack of objection;
–the suitability or relative normality of the placement (after
comparing the person’s circumstances with another person of similar
age and condition); or
–the reason or purpose leading to a particular placement though of
course all these factors are still relevant to whether or not the
situation is in the person’s best interests, and should be authorised.
Aim of the Supreme Court
To extend the safeguard of independent scrutiny.
Lady Hale said: “A gilded cage is still a cage” and that “we
should err on the side of caution in deciding what
constitutes a deprivation of liberty.”
The judges also highlighted that a person in supported living
might also be deprived of their liberty.
Court of Protection – DoLS Pathway
What is:
“continuous supervision and control?”
“not free to leave?”
“lacking the capacity to consent to the placement?”
Dorset County Council are developing a pathway to ensure
that the necessary cases are taken to the Court of
Protection
Presumption of Capacity
Does Service
User have the
capacity to
consent to their
care plan
yes
no Court Application required
no / maybe not
undertake a decision specific
capacity assessment
Does Service
User have the
capacity to
consent to their
care plan ?
yes
no Court application required
no
no
does the
existing care
plan meet the
threshold for
deprivation of
liberty
no
no Court application required
yes
review the Care
Plan, can it be
amended to be
less restrictive
no
application to the court of
protection required
yes
If the care plan no longer meets
the test for deprivation of liberty
no court application is required
Court of Protection Applications
If a deprivation of liberty is identified, the service provider should
discuss this with the person’s social worker (or other key
professional).
This worker will be responsible for initiating the process that will
take the case to the Court of Protection
Mental Capacity Act and Deprivation of
Liberty Safeguards
Any Questions?