Safeguarding Adults P2
Mental Capacity Act
Practitioner Level
May 2015
www.devon.gov.uk/index/socialcarehealth/
scwd/scwd-safeguarding-adults.htm
Housekeeping
Toilets
Fire Procedure
Breaks
Mobile Phones /
Devices
Smoking
Finishing
Time
Training Transfer
Getting learning into practice
• “50% of learning fails to transfer to the
workplace”
(Sak, 2002)
• “The ultimate test of effective training is
whether it benefits service users”
(Horwath and Morrison, 1999)
Ground Rules
MCA is a dynamic world and we continue to
learn how to interpret the legislation on both a
strategic / organisational level and as individual
practitioners.
Confidentiality within the group will be
respected but may need to be broken if a
disclosure of unsafe practice, abuse or neglect
is made during the course – this will usually be
discussed with you first.
Introductions
• Name
• Place and nature of work
• What do you want to get out of today’s
session?
Outcomes
• Undertake mental capacity assessments in relation to
high risk, complex or safeguarding situations
• Balance risk and rights where unwise decisions may
be being made
• Make Best Interest Decisions for those who lack
capacity
• Know when to involve others e.g. Advocates, IMCA,
Court of Protection, Office of the Public Guardian,
Safeguarding & DoLS Teams
• Know where to go for information and advice
Care Act 2014
• Will come in to force on April 1st
2015
• Prevent, reduce, delay
• Dovetails with the Mental Capacity
Act in all areas - wellbeing,
assessment / eligibility, advocacy
and safeguarding
Wellbeing
........... beginning with the assumption that
the individual is best-placed to judge the
individual’s wellbeing. Building on the
principles of the Mental Capacity Act, the local
authority should assume that the person
themselves knows best their own outcomes,
goals and wellbeing. Local authorities should
not make assumptions as to what matters
most to the person;
Scope of the Act
Any person (paid or
voluntary) who ‘has
care of’ a person who
may lack the ability/capacity
to make some decisions
has a duty to follow the
Code of Practice that
accompanies this Act.
The MCA “Process”
Is there a concern about a persons capacity ?
(with regard to a specific decision)
Undertake a Capacity Assessment
Capacity
Their own decision
(even if we think it is unwise)
Lack Capacity
Best Interest Decision
“Capacity…
…refers to our ability to make competent decisions
determining our life choices.
It is based on the assumption that the State does not
seek to intervene unnecessarily in the life of its
citizens [...] In other words, by and large, provided
you do not choose to break any laws, the State will
not assume any authority to take control of the
decisions you make, no matter how unwise they may
seem to others.”
Hothersall, Maas-Lowit and Golighley, 2008
Key Principles
Principle 1: A person must be assumed to
have capacity unless it is established that they
lack capacity.
Principle 2: Individuals must be supported to
make their own decisions
Principle 3: People have the right to make
what others might regard as an unwise or
eccentric decision
Key Principles
Principle 4: Best Interest
If a person has been assessed as lacking capacity
then any action taken, or any decision made for, or
on behalf of that person, must be made in his or her
best interest.
Principle 5: Least Restrictive
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
Terms
• Best Interest is one underpinning principles of
the Act
• Best Interest is a collaborative process used
when an adult lacks capacity and an important
decision needs to be made
• A Best Interest Assessor is the key
professional when a Deprivation of Liberty
Safeguard application is made
Advocacy
• Self Advocacy is when someone is able to
express their own views. Could be verbal or
non-verbal
• Supported advocacy when someone needs
encouragement to express their views
• Advocacy – when someone speaks on behalf
of another
• IMCA / IMHA – professional advocates under
specific legislation
What is Duty of Care?
What is ‘Duty of Care’?
• Landmark Scottish case in 1932 established
the original ‘duty of care’ principle
“...you must take reasonable care to avoid acts
or omissions which you can reasonably
foresee would be likely to injure your
neighbour.”
(Lord Atkins, p580, Donaghue v Stevenson,1932)
Duty of Care means.....
• All reasonable steps have been taken
• Reliable assessment methods have been
employed
• Information has been proactively gathered
and methodically analysed
• Decisions have been recorded and acted upon
• Adherence to agency policy and procedures is
evident
Kemshall, 2003
Gemma Hayter
Protection from Liability
(Section 5)
If a person has capacity to understand the risks they are
taking, this is their decision and their risk – you will be
protected from liability if you have done all you reasonably
can to support them with understanding and managing those
risks – even if the person comes to harm.
If you make a best interest decision for a person lacking
capacity, the Mental Capacity Act protects you from liability if
you reasonably believed that you were acting in the person’s
best interests - even if the person comes to harm.
Good record keeping is essential.
Who Undertakes Assessments?
Anyone can undertake mental capacity
assessments appropriate to their role. It will
depend on the decision.
So in the case of medical treatment it is the
doctor,
If nursing care, it is the nurse,
If day to day care, it is the care giver
If a social care decision, it is the social care
professional etc
Telephone Contact /
Assessment
• Might be first opportunity to notice a problem so CDP role
pivotal
• If other professionals are involved discuss with them to find
out more information
• If other professional has undertaken a MC Assessment check
it’s relevant to the decision, current (especially when the
situations is rapidly changing) and recorded – ideally you
should get a copy.
• If you feel CCT, sensory Team or LDT need be involved then
ensure you explain why and what information you have
gathered
Mental Capacity Assessment
• What triggered the need for this assessment?
(Have all reasonable steps been taken)
• What is the nature of the decision?
(If this is a review, detail previous decision about capacity)exhausted and
shown not to work)
• Key roles: Person closest to person, Lasting or Enduring, Power of
Attorney, Independent Mental Capacity Advocate, Court of Protection,
Deputy
• Who was consulted about decision? (Give names and roles. In addition, if
case conference held detail attendees)
• Determination of capacity (This is specific, not general determination. Note
any documentation referenced)
• Is there an impairment of, or disturbance in, the functioning of mind?
FACE FORM
Assessing Capacity
• Can the person understand the information
relevant to the decision to be made?
• Can the person remember the information at
the time the decision needs to be made?
• Can the person use or weigh up the
information in order to make the decision?
• Can the person communicate their decision
(by talking or any other means)?
Record keeping
Recording needs to be proportionate to the situation
Day to day decisions / choices and complex, high risk
decisions will require a slightly different approach
All assessments of capacity must be recorded where the
person is making an ‘unwise decision’ or there is risk of
harm.
A formal record of the assessment should be made
where there is risk of significant harm or there is
disagreement about a person’s capacity to make a
decision.
Case Study - Sharon
We will use the DVD to explore the principles
Planning your assessment
• What concerns has Sharon’s mother raised?
• What is the specific decision to be taken?
• What could you do to ensure Sharon is given
every opportunity to make her own decisions?
Stephen case study
Planning Your Assessment
What is the ‘relevant information’
when assessing whether a person has
capacity to decide where they will
live?
Your Role
What issues commonly arise in
relation to assessing capacity in your
work?
Undertaking Your
Assessment
How will you assess whether someone is
able to:
• Understand the information?
• Retain the information long enough to use it to make
an effective decision (i.e. now or at the time it needs
to be made)?
• Use or weigh the information as part of the decision
making process?
• Communicate her decision?
“Experience…
…is the name everyone gives to their
mistakes.”
Oscar Wilde, 1854-1900
The Next Step
When you meet with Sharon she’s really
positive and seems very happy. She’s keen to
tell you that she and Steven – the man with the
black hat - are going to go to the ‘next step’.
What do you need to establish?
What does the legal framework state about
capacity to enter into sexual relationships?
Capacity to Consent to Sex
(in general)
Low level of capacity needed:
• Mechanics of the act
• Able to choose whether to give or withhold
consent
• Health risks e.g. STIs
• Pregnancy
• Protection
Case Study Miss Y
Capacity to Consent to a
Relationship (with a specific person)
What specific issues are there?
– How old is the person?
– Is the person a care worker?
– Does the person believe the person is
someone else?
– Is the person a known sexual or violent
offender or a perpetrator of domestic
abuse?
Is It Sharon's Choice?
When you next meet Sharon her mood seems
to have changed and she’s not as engaged with
you. Eventually she tells you that Steven is
pressurising her to have sex with him.
What do you need to establish?
Consent is based on choice. Consent is active
not passive. Consent is possible only when
there is equal power. Forcing someone to give
in is not consent. Going along with something
because of wanting to fit in with group is not
consent ..... If you can’t say ‘no’ comfortably
then ‘yes’ has no meaning. If you are unwilling
to accept ‘no’ then’ yes’ has no meaning.
Adamas and Fay (1984)
‘Unwise’ decisions
• Ensure capacity is properly assessed and
recorded – is specialist input required?
• Review capacity assessment if more evidence
comes to light
• Ensure any remaining risks and options are
clearly communicated to the person (in writing)
and their reactions to these recorded
• Inform them of the open door policy
‘Unwise’ decisions
• Get support/advice: Manager/Multi-agency
approach/Safeguarding/MCA/Legal team
• Put safeguards in place: What can you do legally to
monitor the situation/reduce the risks?
• Consider Safeguarding Threshold for Self Neglect
• Court of Protection welfare application to review
capacity?
• Inherent Jurisdiction of the High Court?
What role is there for inherent
jurisdiction now?
“… in my judgment, the authorities to which I have referred
Demonstrate that the inherent jurisdiction can be exercised
in relation to a vulnerable adult who, even if not
incapacitated by mental disorder or mental illness, is, or is
reasonably believed to be, either (i) under constraint or (ii)
subject to coercion or undue influence or (iii) for some
other reason deprived of the capacity to make the
relevant decision, or disabled from making a free choice,
Or incapacitated or disabled from giving or expressing a
Real and genuine consent”
www.39essex.co.uk
Best Interest Decisions
Imagine Sharon lacks capacity to make a
decision about where to live.
When deciding what is in her best interests:
• Who will you consult with?
• What will you consider?
Best Interest Checklist (1)
• Assess whether the person will regain capacity
– Can the decision be delayed?
• Identify all relevant circumstances
• Find out the person’s views
– Past and present wishes & feelings
– Cultural or other values
– Religious or other beliefs
– Advance Statements
– Advance Decisions to Refuse Treatment
Advance Decisions to Refuse Treatment
•
•
•
•
•
18+ with capacity
Refuse any Medical Treatment in advance
Can’t request treatment
Can’t refuse Mental Health Treatment
If life sustaining must be written, signed,
witnessed and dated, other treatment can be
verbal
• Legally binding
Treatment Escalation Plans
• To record Capacitated Wishes* &/or Best
Interest Decisions made by doctors
– *Life sustaining treatment will also require a
written, signed & witnessed ADRT
• Guidance for medical staff only
• Social Care staff may not diagnose illnesses or
confirm death – pass information to medical
staff
Best Interest Checklist (2)
• Consult others
– Anyone named by the person
– Anyone caring for the person
– Anyone with an interest in the welfare of
the person concerned e.g. Partner, family,
other professionals
– Is an IMCA required?
Best Interest Checklist (3)
• Avoid discrimination
– Not solely age, condition, appearance or
behaviour
• Avoid restricting rights
• Don’t be motivated by a desire to bring about
the person’s death
– Stopping treatment may be in someone’s Best
Interest e.g. If they have no realistic prospect of
recovery
Proportionate Best Interest
•
•
•
•
Involving relevant people
Meeting may or may not be required
Sometimes you have to make a quick
decision in the ‘spirit of the Act’
Lasting Powers of Attorney
• 18+ with capacity to donate
• Health and Welfare &/or Property and Affairs
• Powers can be limited
• Register with Office of Public Guardian
• Follow Code of Practice
• Regulated by Office of Public Guardian
(Deputies may be appointed by the Court of Protection for
Property and Affairs &/or Health and Welfare decisions if people
lack capacity to donate an LPA)
Independent Mental Capacity Advocates
•
•
•
•
•
•
•
Unbefriended?
Serious Medical Treatment
Hospital Admission > 4 weeks
Change of Accommodation > 8 weeks
Deprivation of Liberty Assessment
Care Plan Review (optional)
Safeguarding Process (optional)*
*can be requested even if befriended
New Statutory Advocacy
• The Act requires local authorities to involve people in
assessments, care and support planning, and reviews.
• In order to facilitate the involvement and engagement
of people who would otherwise have difficulty, it
introduces a new requirement to arrange independent
advocacy for people…
• A) who have substantial difficulty in being involved/
engaged in these processes and
• B) where there is no one available to help facilitate this
involvement and engagement.
PREVENT, REDUCE,
DELAY
48
Judging ‘substantial difficulty’ in
being involved
• Both the Care Act and the Mental Capacity Act
recognise the same 4 areas of difficulty (in any
one of which a substantial difficulty might be
found), and both require a person with these
difficulties to be supported and represented,
either by family or friends, or by an advocate
in order to communicate their views, wishes
and feelings.
PREVENT, REDUCE,
DELAY
49
Summary
• A person centred risk assessment will focus on the outcomes
the person wishes to achieve – what might be done to help
and what obstacles may be removed
• You are not responsible for other people’s decisions but you
must show how you brought to a person attention the
dangers they face. Also what you did to assist them to manage
them.
• A capacity assessment may need to be undertaken to
ascertain a person’s ability to understand and manage those
risks
• If a person lacks capacity to make a particular decision, a
decision will need to be made in their best interest
• When making decisions for others you must be able to show
what you did and why you did it
Helpful Tool
www. ehealthtracker.co.uk
Any Questions?
Evaluation forms
Handout
PREVENT, REDUCE, DELAY
55