Title: Approved By & Date. Trust-wide all clinical staff

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1 Title: Purpose: Introduction Mental Capacity Act and Deprivation of Liberty Safeguards To clarify roles, duties and expectations of employees who are involved in the care or treatment of adult service users who may lack decision-making capacity in some areas and provide evidence of compliance with nationally accepted good practice guidelines through monitoring of implementation in practice The Mental Capacity Act 2005 for England and Wales became law in October The Deprivation of Liberty Safeguards (DOLS) became law in April Approved By & Date: For Use By: Reference No: Version: 02 Published Date: December 2015 Review Date: December 2017 Equality Assessment: The Act applies to people aged 16 and over (18 in the case of DOLS and Advanced Decisions to Refuse Treatment)) and provides a statutory framework for the protection and empowerment of people who may lack capacity to make some decisions themselves. It requires that patients are placed at the heart of decision making, that their ability to make capacitated decisions is maximised and that decisions are made in their best interests when they lack capacity to make them themselves. The Mental Capacity Act (MCA) and the Mental Health Act 1983 (MHA) are completely independent of each other. The MHA is risk-based legislation dealing with the compulsory admission and treatment of those suffering from mental disorder. The Consent to Treatment provisions of the MHA overrides the provisions of the MCA in relation to treatment for mental disorder only. Otherwise, the MCA applies to those detained under the MHA, and those caring for them, in exactly the same way it applies to everyone else. Of particular importance are the 5 principles set out in Section 1 of the MCA These provide a set of requirements and guidelines which place patients, capacitated or not, at the centre of decision-making and ensure that while individual autonomy is respected, the vulnerable are properly protected. A working knowledge of the Principles is essential to a proper understanding and use of the Act Mental Health Law Forum 23 rd November 2015 Trust-wide all clinical staff C07 April 2014 Review and Amendment Log Version Reasons for Number Development/Review 01 Developed/reviewed for use across the merged Trust Date April Planned review December 2015 Description of Change(s) New policy taking into account recent legal changes. Introduction of a Legal Basis for Admission form to be completed for all service users admitted to in-patient areas. Updated to reflect changes in national guidance. Instructing an Independent Mental Capacity Advocate guidance revised Page 1 of 15

2 Legal Basis for Admission Summary of Key Points Page 2 of 15

3 Assessment of Decision Making Capacity Summary of Key Points (see also Appendix 1) Page 3 of 15

4 Best Interests Decisions Summary of Key Points (see also Appendix 2) Page 4 of 15

5 Contents 1.0 Definitions Duties Key Principles How to Assess Capacity When should Capacity be Assessed? When to approach the Court of Protection Instructing an Independent Mental Capacity Advocate Deprivation of Liberty Safeguards - background Deprivation of Liberty Safeguards and In-patients Deaths of Patients subject to DOLS 10 Appendices 1 Mental Capacity Assessment Guidance Best Interests Decisions Guidance Monitoring Statement 15 Supporting Information 15 Documentation Form Lorenzo Legal Basis for Admission In-patient Chart Admission Tab Mental Capacity Assessment In-patient Chart and Care Process Best Interests Decision In-patient Chart and Care Process Deprivation of Liberty Safeguards Request for Standard Authorisation Available on the intranet and Urgent Authorisation (Form 1) policy area Deprivation of Liberty Safeguards Notification of Death Whilst Deprived Of Liberty (Form 12) Available on the intranet policy area Page 5 of 15

6 1.0 Definitions A comprehensive list of definitions can be found in the Code of Practice (CoP) however some essential concepts are given here. Admission Lawful basis for There must always be a lawful basis for admission, as there must be for any other intervention. This may be the patient s informed consent, detention under the Mental Health Act or under the Deprivation of Liberty Safeguards, but there are other possible lawful bases which are included in the Legal Basis for Admission Form This form must be completed as part of the admission procedure (see also C01: Admission policy). (See also Duty of Care and De-facto Detention below). Best Interests Where an individual lacks capacity in a matter, a decision must be made in their best interests. Except in urgent or emergency situations, this will include the views of family, carers, other professionals and the decision maker themselves. What is known of the patient s views before they lost capacity and currently must also inform the decision, along with any other relevant factors. This must be recorded fully in the health record Capacity The ability to make a particular decision about a particular matter at the time it needs to be made. Any assessment of capacity is decision-specific and time-specific. Duty of Care A duty of care will always exist when staff are in a professional relationship to a service user. A duty of care includes protecting a person from reasonable foreseeable harm. Such harm may arise when a patient s rights and freedoms are unlawfully restricted, but will also arise if care is not given when there is a lawful mechanism to provide it for example, using authority under the MHA or the MCA/DOLS. Therefore, staff must have an adequate knowledge of the MHA and the MCA/DOLS to discharge their duty of care properly. Failure to discharge a duty of care provides a legal basis for a claim of negligence. De-facto detention An unacceptable situation which arises when a patient is neither lawfully detained nor genuinely free to go e.g. when a patient consents to remain in hospital because she believes she will be sectioned if she tries to leave. This could occur if a member of staff wrongly believes it is the least restrictive option. See also (Section 5.0: When should Capacity be Assessed) Liberty Article 5 of the European Convention on Human Rights confirms that everyone has a right to liberty and security of person, except in certain specified cases which include the lawful detention of persons of unsound mind. In the U.K., the only lawful basis on which patients may be deprived of their liberty is detention under the Mental Health Act, or the Deprivation of Liberty Safeguards. There is no other lawful basis for depriving a patient of their liberty, other than a Court Order or Parental Responsibility in the case of minors. The Chester West case removed any component of objection from the definition of Deprivation of Liberty so that in-patient care of a mentally incapacitated person will almost always deprive the patient of liberty; the number of DOLS authorisations will therefore rise. Safeguarding Patients who lack decision-making capacity or who struggle with capacity making them susceptible to undue influence are among the most vulnerable of our service users. The possibility of unwitting institutional abuse must always be borne in mind (see C80: safeguarding Vulnerable Adults policy). There should be a very low threshold for referral to the Safeguarding Team. Page 6 of 15

7 2.0 Duties NSFT has a duty to its service users and their families to implement the Mental Capacity Act not merely to the letter, but in spirit and ethos. All clinical staff must: Practice within the MCA and seek advice as required Complete the Lawful basis for Admission form Attend training as required by their role or as identified at PDP Maintain detailed and up-to-date health records 3.0 Key Principles The Mental Capacity Act is underpinned by a set of five key principles set out in Section 1 of the Mental Capacity Act. These are: A presumption of capacity: Patients must be presumed to have capacity in all areas of decision making. This presumption can be rebutted, but the burden of proof lies with staff to show that a patient lacks capacity, not with the patient to show that she has it. Duty to maximise capacity A person must be given all practicable help to make their own decision before being treated as unable to make that decision. They should still be involved in decision-making as far as possible. All practicable help means what is possible within the time and resources available. Unwise decisions: A person is not to be treated as unable to make a decision merely because she makes an unwise decision. Lack of capacity must not be inferred from lack of wisdom/eccentricity/seeming irrationality. See when to assess capacity below. Best interests: An act done or decision made under the Act for or on behalf of a person who lacks capacity must be done in their best interests.(see S4.MCA) and ch.5 MCA CoP Least restrictive option: Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms. All decisions must be clearly recorded in the health record 4.0 How to Assess Capacity The statutory test of capacity, often referred to as the 2 stage test, set out in Sections 2 & 3 of the Act asks: Is there an impairment of or disturbance in the person s mind or brain? Is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision when it needs to be made? A person is deemed unable to make a decision if they cannot; Understand information given to them about that decision and Retain that information long enough to help make that decision and Use or weigh up that information as part of the decision making process and Communicate their decision. 5.0 When should Capacity be Assessed? The presumption of capacity required by Principle 1 of the Act is rebuttable and does not mean that legitimate concerns about capacity can be ignored. Presentation at admission, changes in mental state, in behaviour or in decision-making may quite properly trigger concerns about mental capacity which may need to be resolved by a capacity assessment which should be documented in the health record. Capacity on Admission The decision to be made will be whether the patient has capacity to consent (a) to admission and (b) to treatment. Where there are no reasons to question the patient s mental capacity, the Principle 1 presumption of capacity can be relied on and no assessment of capacity need be done. The reality is that this will rarely be the case; only the most distressed patients are likely be admitted and they will by definition fail the first part of the 2 stage test (see Section 4.0). The threshold for undertaking a formal capacity assessment should therefore be low Staff must complete the Legal Basis for Admission form Page 7 of 15

8 Capacity should be assessed whenever: A person s behaviour causes doubt as to whether they have the capacity to make a decision A person s behaviour suggests they may have regained capacity When someone else expresses concerns about the person s capacity When the person lacks capacity in significant other areas of decision-making Mental Health Act 1983 Pt 4 and Consent to Treatment The Mental Health Act phrase capable of understanding the nature, purpose and likely effects of is less rigorous than the tests of mental capacity given in Sections 2 & 3 of the Mental Capacity Act 2005 and is an unsafe basis for confirmation of capacity to consent to treatment. In addition, the MHA CoP states that For people aged 16 or over, capacity to consent is defined by the MCA (24.31) Therefore, when form T2 (certificate of consent to treatment) is completed there should be a supplementary clinical note of the discussion with the patient that lead to the view that they have mental capacity to give or withhold consent. (See MHA CoP 25.17). It will not always be necessary for this to include a formal capacity assessment, but it may be helpful in cases which are not straightforward. The note should outline the content of the discussion, the information provided for the patient and the outcome. A patient cannot be found to lack capacity in the absence of a capacity assessment, and one must therefore be completed by the SOAD whenever form T3 is completed on the grounds that the patient cannot consent (a) (as opposed to has not consented)(b). 6.0 When to approach the Court of Protection. Treatment for mental disorder given under the Consent to Treatment provisions of the Mental Health Act will not require the Court s consent. The Court of Protection does not have jurisdiction over treatment decisions under the Mental Health Act. When a patient lacks capacity and they require treatment for a physical condition the MCA will apply (unless the treatment is ancillary to the main treatment for mental disorder so as to fall under section 63 MHA). Such treatment will normally be undertaken in accordance with the patient's best interests as decided locally. However, a non-exhaustive list of decisions which do require the authority of the Court of Protection is given in the MCA Code of Practice at Further guidance is given in the Court of Protection Practice Direction 9E. An application to the Court of Protection should be considered if it is uncertain what treatment is in the patient's best interests, or if there is a dispute about treatment between the clinicians and the patient or his/her family particularly if the treatment is invasive or likely to have serious lasting effects on the patient. Wherever uncertainty or dispute about the best interests of an incapacitated patient cannot be resolved, the Court of Protection should be considered. In the first instance the Trust s Legal Department must be consulted. Where a patient is to be discharged into supported living or a setting which is not registered as a care home, in circumstances whete their package of care amounts to a deprivation of liberty in the community (see section 9 for definition of deprivation of liberty), the Court of Protection will have to authorise the care package because the DOLS under the MCA only apply to care homes and hospitals. This should be planned for in advance. 7.0 Instructing an Independent Mental Capacity Advocate and Contact Details The Independent Mental Capacity Advocacy (IMCA) service is available to persons aged 16 years or older who have been formally assessed to lacking mental capacity and have no appropriate friends or family* to consult in certain situations. An Independent Mental Capacity Advocate must be instructed when A decision must be made on their behalf regarding either the provision, or withdrawal, or withholding, of serious medical treatment. A decision must be made on their behalf about accommodation in a hospital for more than 28 days, or a care home for more than 28 weeks. (s37mca). Page 8 of 15

9 An Independent Mental Capacity Advocate may be instructed when A review is proposed or is in progress of the qualifying arrangements which have been made by a responsible body as to their accommodation, or *Irrespective of whether they have appropriate family or close friends, it is proposed to take protective measures under adult protection procedures (over 18 years only) (see C90 Safeguarding Vulnerable Adults policy) IMCA services in Norfolk are provided by POhWER (tel ; fax ; The referral form is available on the intranet or from the POhWER website above. IMCA services in Suffolk are provided by Voiceability ( ;fax Deprivation of Liberty Safeguards Background In the Bournewood case (HL vs. the UK 2005) the European Court of Human Rights identified breaches of Article 5 of the European Convention on Human Rights in existing UK law and practice. The Deprivation of Liberty Safeguards (DOLS) were introduced to provide a mechanism by which people who lacked capacity to consent to care which, in their best interests, deprived them of their liberty, could lawfully be cared for. The DOLS apply to people in both general and psychiatric hospitals as well as nursing and residential care homes registered under the Health and Social Care Act The Mental Capacity Act Deprivation of Liberty Safeguards apply to anyone: Aged 18 and over Who lacks the capacity to consent to the arrangements made for their care and/or treatment and Whose care deprives them of their liberty and For whom such deprivation of liberty is considered to be necessary in their best interests to protect them from harm. The safeguards are designed to protect the interests of vulnerable people by: Ensuring people can be given the care they need in the least restrictive regimes Preventing arbitrary decisions that deprive incapacitated people of their liberty Providing safeguards for incapacitated people Providing them with rights of challenge against unlawful detention 9.0 Deprivation of Liberty and In-patients Following the judgment of the Supreme Court in March 2014 the definition of a deprivation of liberty is more straightforward than before. The acid test set out as it applies to in-patients who lack mental capacity has only two components; Is the patient under the continuous control and supervision of staff? Is the patient free to leave? The question here is not whether the patient is trying to leave the premises, but what would happen if they did try. If the answer is we would have to stop them, then they are deprived of their liberty and must be made subject to a standard authorisation under DOLS or detained under the Mental Health Act. The following are not relevant factors; The patient s compliance or lack of objection The relative normality of the placement or care package The reason or purpose behind the placement Where a possible deprivation of liberty is identified, the care-plan must be reviewed to see if it can be modified to avoid the deprivation, although this is unlikely to be possible given the nature of in-patient care. It should also be reviewed to ensure that it is the least restrictive possible, in accordance with the principles of the MCA. A request for a standard authorisation must be made to the relevant Local Authority and an urgent authorisation completed Deprivation of Liberty Safeguards Request for Standard Authorisation and Urgent Authorisation (Form 1) completed where any deprivation is unavoidable. Page 9 of 15

10 10.0 Deaths of Patients subject to DOLS Deaths of patients who are subject to DOLS (and detention under the Mental Health Act) must be reported to the Coroner for the area in which the service user died (not their home area if different) Deprivation of Liberty Safeguards Notification of Death Whilst Deprived Of Liberty (Form 12) (see C03: Care of the Dying policy). Page 10 of 15

11 Appendix 1 Page 11 of 15 Mental Capacity Assessment Guidance This information must be read prior to completing the Mental Capacity Assessment form Carefully and systematically completing the Mental Capacity Assessment and Best Interests Decision Form will enable you to assess whether a service user has capacity in a particular matter and to record your assessment. Where the patient does not have capacity, the form will enable you to make a decision in their best interests and to show how you arrived at your decision. Where assessment shows that a patient does have capacity, the form should still be filed in the health record to show how that assessment was made. Section 1. Assessor s Name Section 2. The Decision to Be Made The Mental Capacity Act 2005 makes it clear that capacity refers to the ability to make a particular decision at the time it needs to be made. It is therefore important to state clearly what the decision in question is. Section 3. The Two-Stage Test of Capacity Stage One - Is there an impairment of or disturbance in the functioning of the mind or brain? If the answer to this question is no then the person has capacity and the assessment should not proceed further (this should raise the question of why the person is in our care!). The definition of what constitutes a disturbance/impairment of mind/brain is very broad. It includes: Physical conditions: stroke, head injury, dementia, toxic confusional state, hypoglycaemia Psychiatric disorders: depression, mania, psychosis Learning disabilities Temporary conditions like concussion or post-ictal states Temporary conditions such as intoxication with drugs or alcohol You need only state your opinion based on what you know and can see of the person you don t have to give a clinical diagnosis or a DSM definition. Stage Two - Does the impairment/disturbance make the person unable to make the decision at the time it needs to be made? This question can only be answered once questions 3A, 3B, 3C and 3D have been answered. 3A Is the person able to understand the information relevant to the decision? This includes understanding the purpose of the decision, the information needed to make it and the likely consequences of deciding one way or the other or not deciding at all. The person must be given all practicable help to understand 3B Is the person able to retain the information long enough to make a decision? The person need only be able to retain the information for long enough to make an informed decision. They should be given any help needed i.e. note pads, posters, even tape or video recorders, if available. 3C Is the person able to use or weigh up the information as part of the decision-making process? Of the four questions, this one is likely to need the most thought. In the context of acute psychiatry, it is also likely to be the one that people fail on if they re going to fail. For example, mood disorders and delusional/paranoid conditions could affect a person s ability to

12 balance one factor against another properly, even though they understand the factors themselves perfectly. 3D Is the person able to communicate their decision? This can be by whatever means speech, sign language, gesture, hand squeeze Before concluding that someone cannot communicate and therefore lacks capacity, every effort must be made to assist the person to communicate. If the person fails any one of 3A D, then they are unable to make the decision at the time it needs to be made and therefore lack capacity in the matter in question. An account must be given of the steps taken unsuccessfully to help the patient pass the statutory tests (MCA Principle 2). If they don t fail any, of 3A-D then they have capacity in the matter (even though they have a disturbance of the mind/brain) and their wishes must be respected. Page 12 of 15

13 Appendix 2 Page 13 of 15 Best Interests Decision making Guidance This information must be read prior to completing the Best Interests Decision form Where a person lacks capacity in a matter, a decision needs to be made on their behalf in their best interests. The following factors should be considered; The chance that the person will regain capacity in time to make the decision. The person should be encouraged to make any contribution they can to the decision making process. Can the person s wishes, beliefs and values before they lost be capacity be ascertained? Can the decision be informed by those wishes? What are the views of relatives/carers/ significant others? What are the professional s views? Taking these factors into account, you should now be able to make a decision in the person s best interests and show how you arrived at it. All discussions, decisions and the rationale must be comprehensively documented in the health record. Preliminaries Satisfy yourself that the person: Lacks capacity to make a decision on the issue in question Has not made a relevant valid advance decision to refuse treatment Has not made and registered a personal welfare Lasting Power Of Attorney (LPA) (see NB: below) The Court of Protection has not appointed a deputy to make decisions for the person (see NB: below) If none of these apply, the clinician providing treatment (the decision maker) must decide what is in a patient s best interests by taking actions as follows: 1.0 Encourage participation Do whatever is possible to permit and encourage the person to take part, or to improve their ability to take part, in making the decision e.g. use simple language or illustrations; choice time/location where the person is most at ease. 2.0 Identify all relevant circumstances Try to identify all the things that the person who lacks capacity would take into account if they were making the decision or acting for themselves i.e. risks and benefits of treatment and alternatives. An abusive situation could affect the person s ability to weigh up or understand information. 3.0 Find out the person s views Try to find out the views of the person who lacks capacity, including: The person s past and present wishes and feelings these may have been expressed verbally, in writing, or through behaviour or habits. An advocate may help. Any beliefs and values (e.g. religious, cultural, moral or political) that would be likely to influence the decision in question. Has the person made an advance statement of wishes? Any other factors the person themselves would be likely to consider if they were making the decision or acting for themselves. NB: An attorney or Court of Protection Deputy is empowered to make decision on behalf of a person lacking capacity. However, if you have concerns that this decision is not in the person s best interests, you should use this checklist.

14 4.0 Avoid discrimination Do not make assumptions about someone s best interests simply on the basis of the person s age, appearance, condition or behaviour. 5.0 Assess whether the person might regain capacity Consider whether the person is likely to regain capacity e.g. after receiving medical treatment or learning new skills. If so, can the decision wait until then? 6.0 If the decision concerns life-sustaining treatment Not be motivated in any way by a desire to bring about the person s death. They should not make assumptions about the person s quality of life. In contentious circumstances, in life or death scenarios or where children are involved, the Court of Protection should be involved. 7.0 Consult others If it is practical and appropriate to do so there is a statutory duty under the Act to consult other people for their views about the person s best interests and to see if they have any information about the person s wishes and feelings, beliefs and values. In particular, try to consult: Anyone previously named by the person as someone to be consulted on either the decision in question or on similar issues. Anyone engaged in caring for the person. Close relatives, friends or others who take an interest in the person s welfare. For decisions about major medical treatment or where the person should live, and when there is no one who fits into any of the above categories, an Independent Medical Capacity Advocate (IMCA) must be consulted. When consulting, remember that the person who lacks capacity to make the decision or act for themselves still has a right to keep their affairs private so it would not be right to share every piece of information with everyone. Select information on a need-to-know basis. The weight given to the views of others should reflect the length of time the individual has known the person who lacks capacity and how close the relationship is. Consultation with others can be by telephone or and a best interest meeting may not be required. However a best interests meeting will usually be required where there is disagreement between the parties. 8.0 Avoid restricting the person s rights See if there are other options, which may be less restrictive of the person s rights. Then weigh up all of these factors in order to work out what is in the person s best interests. 9.0 Recording best interests decisions For major healthcare decisions an entry in the health record must record: How the decision about the person s best interests was reached What the reasons for reaching the decision were Who was consulted to help work out best interests and What particular factors were taken into account 10.0 Disputes If someone wants to challenge a decision-maker s conclusions, consider Involving an advocate to act on behalf of the person who lacks capacity to make the decision Getting a second opinion Holding a formal or informal best interests case conference Attempting some form of mediation Pursue a complaint through the organisation s formal complaint procedures If all attempts to resolve the dispute fail refer the matter to the Court of Protection Page 14 of 15

15 Monitoring Statement Aspects of the policy to be monitored Completion of the Legal Basis for Admission form Monitoring method Line Management Supervision Checking presence of document within Lorenzo Individual/Team responsible for monitoring In-patient Clinical Teams Clinical Audit Team Frequency Findings: Group/Committee that will receive the findings/monitoring report Selection of health records on a monthly basis As set out in the audit Terms of Reference Locality/Service Governance Groups if requested Quality Governance Committee and Mental Health Law Forum Action: Group/Committee responsible for ensuring actions are completed Clinical Team Leaders/Managers Quality Governance Committee Supporting Information With reference to: Mental Capacity Act 2005 Mental Capacity Act Code of Practice. Department of Health (2015) Deprivation of Liberty Code of Practice. Department of Health (2008) Mental Capacity Act Deprivation of Liberty Safeguards. Forms and Record-keeping. Guide for Supervisory Bodies in England IMCA Referral Form VoiceAbility(Suffolk) POhWER(Norfolk) Supreme Court Judgement [2014] UKSC19 P v Cheshire West and Chester Council P and Q v Surrey County Council House of Lords Select Committee Report; Mental Capacity Act 2005: Post-Legislative Scrutiny. Published 13 th March 2014 Associated trust policies and documents Written by: Reviewed by: In consultation with: C01: Admission C08: Prevention and Management of Violence and Aggression (including the use of Physical Intervention) C54: Privacy, Safety and Dignity C59: Covert Administration of Medicines C71: Consent to Examination or Treatment C89: Safeguarding Children C90: Safeguarding Vulnerable Adults Q16b: Clinical Supervision Q37: Education, Training and Continuing Professional Development R&D012: Gaining Valid Consent from Participants for the Purpose of Research Studies Jim Parr Mental Capacity Act Manager Jim Parr Mental Capacity Act Manager Mental Health Law Forum Page 15 of 15