Capacity and The Law Including DOLS post Cheshire West Simon Cheverst, Solicitor

Capacity and The Law Including DOLS post Cheshire West Simon Cheverst, Solicitor

Capacity and The Law

Mental Capacity Act

• Codifying the law of capacity• Defining and testing for incapacity, applying the Principles and Best Interest test, but

consulting• Formalising the possibility of advance planning:

– Lasting Power of Attorney– Advance Decision

• If all else fails:– Deputies– Court of Protection


So How do you Deal with Consent?

1. Capacity? If so, patient consents2. If no capacity, can anyone consent?

– Deputy– LPA– Advance Decision– Court OrderBut not next of kin

3. If no capacity and none of the above, use MCA to make a best interests decision


Step One: Check Capacity

• Definition of incapacity: unable to make a decision because of an impairment of or disturbance in the functioning of the mind or brain

• Time and decision specific• Test for capacity

– Understand the information– Retain information– Use or weigh the information to decide– Communicate the decision


• Lack of capacity can not be established on the basis of:– Person’s age or appearance– A condition of his or aspect of his behaviour which might lead others to make

unjustified assumptions about his capacity• Act only provides powers if incapacitated individual is aged 16 or over


Step Two: If no Capacity Decide in Best Interests

• Not based on age, appearance or condition• Information in appropriate manner• Utilise statutory checklist:1 Capacity in future?2 When?3 Encourage involvement4 Not intended to cause death5 Take account of previous wishes


Statutory Consultation:

Take account of views (if practicable and appropriate):-

1. Named Person2. Engaged in Caring or interested in welfare3. LPA4. Deputy


Principles Regarding Persons who Lack Capacity

• A person is presumed to have capacity;• A person is not to be treated as unable to make a decision unless all

practicable steps to help him to do so have been taken without success;• A person is not to be treated as unable to make a decision merely because

he makes an unwise decision;


• An act done, or decision made, on behalf of a person who lacks capacity must be done, or made, in his best interests;

• Before any such act or decision is made, the person making or taking it must consider whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of the person’s rights and freedom of action


Defence: Acts in connection with care and treatment

• You will have complied with the law if you reasonably believe that what you are doing is in the P’s best interests (S.4(9))


Advance Decisions – S.24

• Refusal of treatment – NOT mandatory request• Advance decision can be made by someone of 18 years or over;• Advance decision can be withdrawn or altered at any time when the maker

has capacity to do so;• Advance decision need not be in writing to be valid (However AD regarding

removal of Life Sustaining Treatment (LST) will have formal requirements – see S.25)


To Consider validity of AD:

1. Did the maker of the AD have capacity at the time?2. Has the maker of the AD done anything clearly inconsistent with the AD?3. Has the maker of AD withdrawn the decision at a time when he had

capacity to do so?4. Is the AD applicable to the treatment concerned?


Circumstances where AD will not be applicable to the treatment

• If the treatment is not specified in AD;• If any circumstances specified in AD absent;• If there are reasonable grounds for believing that circumstances exist which

the person lacking capacity did not anticipate at the time of the advance decision and which would have affected his decision had he anticipated them

• Mental Health Act overrides AD• Except re ECT (from October 2008)


Effect of Valid AD

• If P has made a decision which is both valid and applicable to the treatment – the decision has effect as if it were made at the time the question arises.

• If doubt about validity of advance decision then Court can determine issue


Lasting Power of Attorney

• Replaces the Enduring Power of Attorney;• The donee will be able to make decisions about the donor’s health and

welfare should the donor become incompetent, if such a power is conferred;

• The donee will not be able to authorise the giving or refusing of consent to life sustaining treatment unless the LPA makes express provision for this


• The donor of an LPA can revoke the powers provided by the authority at any time whilst he has capacity

• Mental Health Act overrides LPA• Except ECT (from October 2008)


Deprivation of Liberty Safeguards (DOLS)

• Responding to European Law: Plugging the Bournewood gap• Difficult issues of interaction with MCA and MHA


A)Hospital or care home managers identify those at risk of deprivation of liberty and

request authorisation from supervisory body.

B) Assessment commissioned by supervisory body IMCA appointed for

unbefriendedAge

assessment

Mental Health assessment Mental Capacity

assessmentBest interests assessment

Eligibility assessment

Objections assessment

In an emergency hospital or care

home can issue an urgent

authorisation for 7 days while

obtaining standard authorisation

All assessments support authorisation

Any assessments says No

E) Best interests assessor

recommends person to be appointed as

representative

D) Best interests assessor recommends period

Person or their representative

appeals to Court of Protection

which has powers to terminate

authorisation or vary conditions

F)Authorisation is granted and person’s representative appointed

G) Authorisation implemented by managing authority

H) Review

Managing authority requests review because

circumstances change

Person or their representative requests

review

Authorisation expires and Managing authority requests

further authorisation


Who is covered?

Adults– With mental disorder (Mental Health Act 1983)– Who lack capacity (Mental Capacity Act 2005)– Who require treatment or care involving deprivation of liberty (NB But this does

NOT authorise the treatment)– Suffering from physical or mental health condition– In hospitals or care homes


When can someone be deprived of their liberty?

• In best interests to protect from harm• Proportionate response• No less restrictive alternative


What is deprivation of liberty?

• “There is no simple definition” – a matter of law• Look at the facts of each particular case• Common factors:

– Use of restraint

– Complete control over care, treatment and movement

– Decision not to release or discharge

– Continuous supervision and control, restriction on social contact


The Bournewood gap

• HL v UK• Mr HL was affected by autism at the more severe end of the spectrum• Lived in Bournewood hospital for 32 years.• Discharged to live with paid foster carers in 1994, Mr and Mrs E• Admitted back into Bournewood hospital in 1997 following episode of

agitation on way to day centre• Mr and Mrs E not permitted to visit• HL not objecting to placement and conditions


Article 5 of the European Convention of Human Rights (ECHR)

• Everyone has the right to liberty• Only be restricted in certain circumstances one of which being the lawful

detention of persons of unsound mind• The detention must be in accordance with a procedure prescribed by law• The individual must have speedy access to a Court in order to determine the

lawfulness of detention


The Decision(s) in HL

• High Court - Not deprived of Liberty• Court of Appeal – Deprived of Liberty• House of Lords - Not deprived of Liberty• European Court of Human Rights - Deprived of Liberty AND UK not

compliant with ECHR

• = The Bournewood Gap


HL v UK (2004) – The Bournewood case in Europe

• Factors suggestive of DOL– Specific situation of the individual– Consideration a “range of factors arising such as the type, duration, effects and

manor of implementation of the measure in question.”– Difference between restriction and deprivation of liberty “one of degree and

intensity not nature or substance”


HL Continued

• The Court said that for the purpose of Article 5 it mattered not whether actual restraint was being used.

• If it would be used upon a request or attempt to leave, Article 5 is triggered • Whilst compliant HL was under complete supervision and control and not

free to leave


Cheshire West

• ‘P v Cheshire West and Others’ & P and Q v Surrey – Supreme Court Judgement handed down 19.03.14

• [2014] UKSC 19

• Court of Protection cases concerning whether the three subject to proceedings were deprived of their liberty


P & Q (aka MIG & MEG)

• Sisters subject to Children Act proceedings in 2007 when aged 15 and 16


MIG

• Moderate to severe LD plus problems with sight and hearing• Needs help with road crossing as is unaware of danger• Lives with foster mother who she adores. Not on medication• Never attempted to leave though would be restrained if did so • Attended educational unit in term and goes on family holidays


MEG

• LD mild to moderate• Emotional understanding and communication relatively sophisticated. Some

autistic traits and prone to challenging behaviour• Initially with foster carer though moved to residential home as unable to

manage severe aggressive outbursts• On tranquilising medication and restraint occasionally required


MEG Cont’d

• Subject to continuous supervision and control• Showed no wish to go out on her own and did not need to be prevented

from doing so• Accompanied at all times when away from the unit and attended the same

educational setting as her sister• Had a fuller social life than her sister


P

• 38 years old• Born with cerebral palsy and Down’s syndrome• 24 hour care required• He had lived with his mother all of his life though LA sought orders that he

should live in LA organised accommodation owing to a deterioration in mother’s health

• Lived in supported accommodation with 2 other residents. 2 day staff and one ‘waking’


P Cont..

• 98 hours additional 1:1 support• Attended day centre and hydro therapy pool during week. No tranquilising

medication • Could walk short distances though needed a wheelchair to go further.

Would go to the pub, shops a club and see mother regularly• He wears continence pads and a body suit to prevent him from getting at

the pads and putting pieces in mouth. Some limited intervention required


First Instance Decisions

• Mrs Justice Parker determined that MIG and MIG were not deprived of their liberty, adopting considerations of ‘relative normality’, the Court of Appeal agreed.

• Mr Justice Baker in the first instance determined that P was deprived of his liberty but that it was in his best interests. The Court of Appeal substituted this judgement with a finding that P was in terms of ‘relative normality’ not deprived of his liberty


The Supreme Court Decision

• The Supreme Court rejected the notion of relative normality - liberty is the same for everybody regardless of disability.

• A DOL is likely to arise in circumstances where the measure is incepted by the State, the person is under continuous supervision and control AND is not free to leave

• Consideration must also be given to the area and period of confinement• The fundamental principles in HL v UK remain


Practical Consequences for Providers

• The key for providers will be the identification of such situations• Regulators will be looking for evidence from providers that they have this

issue covered• A mechanism to identify either upon admission or before, those who may

lack capacity and consider whether any aspect of the test is made out• Thereafter refer accordingly• Keep under review – and evidence that


Provider consequences continued…

• Each individual must be considered on their own particular facts• If there is a doubt as to whether any of the key criteria are met, an

application to the LA DOLS team should be made• Work with the Local Authorities - there are resource issues that the Court is

grappling with at the moment• Think about policies and pro-forma • Notify Coroner of death


Non DOLs Deprivations

• Home• Supported living• Domiciliary Care• Children


The DOLS Code of Practice – Is it relevant?

• Chapter 2.5 – A DOL may be indicated where:– Restraint is used to admit a person - Staff exercise control over contacts,

movement and residence for a significant period - A decision has been taken that the person will not be released into the care of others or permitted to live elsewhere without the agreement of the authority - A request to discharge is refused – The person looses autonomy and control

• New Test is now:– Able to leave?– Subject to continuous control and supervision?


The Stinger

• What about Rochdale MBC v KW [2014]?


CQC Guidance

• Adhere to principles of MCA in assessment of capacity and best interests decision making including the recording of such information in care plans

• Err on the side of caution in terms of Authorisations• Work with Local Authorities• Notify CQC of Authorisation requests• Review care plans, capacity and whether free to leave • Deliver care in the least restrictive circumstances• Provide relevant staff training


DH Guidance

• Relevant staff should familiarise with MCA• Be alert to possible restrictions as part of care planning• Take steps to review care plans for individuals lacking capacity and

determine if DOL• Where DOL identified explore least restrictive option (separate guidance

available)• Where DOL unavoidable it must be authorised• Providers and LA’s to work together


Key Points:

• Training to disseminate new test• Audit (so CQC evidence)• Apply if in doubt to L.A• Apply to Court if non DOLs or delay (or weigh up insurance position)


Avoiding unnecessary deprivation of liberty

• Always consider less restrictive approach• Minimise physical restrictions imposed• Taking decisions in structured way; record reasons• Involve family, friends and carers• Help person maintain contact with them• Review decisions and care plans regularly• Advocacy services – an independent element


Relationship between the MCA and the MHA

• MCA applies to all persons lacking capacity• MHA specific criteria• MHA overrides LPA and AD• S.15 MCA Orders by Court• Guidance in the Code


When should the MHA be used rather than MCA?

Use MHA when:• Required treatment cannot be given without detention• Cannot treat under MCA (e.g as advance decision)• Needs restraint in a way MCA does not permit• Expected to regain capacity and may then refuse treatment• Some other reason the person might not get treatment and suffer as a

result


Recent Court Guidance

• GJ v Foundation Trust [2009] EWHC 2972• AM v SLAM [2013] UKUT 0365


G J Test

In essence:Would the Pt be detained in hospital for treatment of MD if if were not necessary to treat physical disorder?If no, MHA unavailable so consider DOLS


AM Test

1. Capacity to consent? If yes, MHA, but if no:2. Can MCA be used? Only if compliant (if so MCA/DOLS) if not:3. MHA4. Where choice between MHA and MCA use least restrictive


Thank you for listening

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Documents

Capacity and The Law Including DOLS post Cheshire West Simon Cheverst, Solicitor