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Developments in Mental Capacity Law and the OT
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DEVELOPMENTS IN MENTAL
CAPACITY LAW AND THE
OCCUPATIONAL THERAPIST
Conor Maguire
Public Law Department
Irwin Mitchell Solicitors
21 September 2012
Overview
• Law before the Mental Capacity Act 2005
• Deprivation of Liberty
• Sex
• The Mental Capacity 2005 and what it means
for an OT
• Case Studies
• Conclusions
In the beginning………
• Historically a wide ranging jurisdiction
– women, felons, lunatics – all at some time treated as incompetent
– Mental Deficiency Act 1913 – “moral imbeciles”
• Greater social equality leads to need for objective justification for
declaration of a lack of capacity – mental disability
• Mental Health Act 1959 – develops a statutory code for the treatment of
a mental disorder. Abolishes powers of the Court to make decisions
about personal welfare and healthcare other than in the context of
treatment for mental disorder
• Leads to a declaratory jurisdiction (lawful & best interests) – Re F
(1990) and Airedale v Bland (1993)
In the beginning………
• Lawful and best interests declarations on
– Healthcare and treatment
– Personal welfare – residence, care & contact
– Sex (could only declare lawfulness)
– Marriage (could only declare lawfulness)
• The Impact of the Human Rights Act 1998 and the need to seek the guidance of the
Court
The Mental Capacity Act 2005
• Why?
– Gaps in the law – lack of a comprehensive strategy to deal
with the problems thrown up by those who lacked capacity
– Courts lack of powers
– Social change – emphasis on community care, avoidance of
discrimination, change in attitudes to disability, need for
protection, need to raise awareness of the legal position of
incapable people
• Reform takes place over decades from 1980’s to the coming
into the force of the MCA on 01 October 2007
Principles of the Act
• Assumption of Capacity A person must be assumed to have capacity unless it is established that he lacks capacity
• Empowerment A person is not to be treated as unable to make decisions unless all practical steps to help him to do so
have been taken without success
• Unwise decision A person is not to be treated as unable to make a decision merely because he makes an unwise decision
• Best interests An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be
done , or made, in his best interests
• 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
What is Mental Incapacity? 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).
DECISION MAKING UNDER THE
MENTAL CAPACITY ACT
ARE THERE CONCERNS ABOUT CAPACITY TO MAKE THAT DECISION?
CONSIDER IF THE PERSON HAS THE CAPACITY TO MAKE THAT
SPECIFIC DECISION AT PRESENT (MAY SEEK FORMAL ASSESSMENT)
CONSIDER STRATEGIES TO ASSIST THE PERSON TO MAKE THEIR
OWN DECISION
CAN THE PERSON MAKE THE DECISION WITH ASSISTANCE?
A DECISION OR SERIES OF DECISIONS IS REQUIRED TO BE MADE FOR
A PERSON
GO AHEAD ON PERSON’S INSTRUCTIONS
WITH THEIR CONSENT
ASSESSED AS HAVING CAPACITY FOR
THAT SPECIFIC DECISION
YES
NO
YES
NO
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
YES
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.
Acts in Connection with Care and
Treatment Section 5:
(1) If a person (“D”) does an act in connection the care and treatment of
another person (“P”) the act is one to which this section applies if –
(a) before doing the act, D takes reasonable steps to establish
whether P lacks capacity in relation to the matter in question and
(b) when doing the action D reasonably believes –
(i) that P lacks capacity in relation to the matter, and
(ii) that it will be in P’s best interests for the act to be done.
(2) D does not incur any liability in relation to the act that he would not
have incurred if P –
(i) had had capacity to consent in relation to the matter, and
(ii) had consented to D doing the act.
Deprivation of Liberty
• Article 5 of the European Convention:
• “1 Everyone has the right to liberty and security of person. No
one shall be deprived of his liberty save in the following cases
and in accordance with a procedure prescribed law –
• …
• (e) the lawful detention… of persons of unsound mind…;
• …
• 4 Everyone who is deprived of his liberty by… detention shall be
entitled to take proceedings by which the lawfulness of his
detention shall be decided speedily by a court and his release
ordered if the detention is not lawful”
DOL – Case Law
• Storck v Germany [2005] - 3 Broad elements to consider
– objective element - confinement for a not negligible time
– subjective element – no valid consent
– confinement imputable to the state – public authority
• Domestic Law:
– Bournewood (1999 – 2004)
– JE v DE [2006] - Munby J – concrete situation – type, duration, effect and
manner of implementation – complete and effective control
– P & Q [2011] - Crt. of Appeal – moved away from complete and effective
control. considered – objection, medication. purpose
– Cheshire West – Crt of Appeal – Munby LJ – concrete situation – no one
indicator will make a DOL. Need to consider normality and the relevant
comparator
DOL – Case Law (Cheshire)
• Munby L J held:
when evaluating and assessing the ‘relative normality’ (or otherwise) of P’s
concrete situation in a case such as this, the contrast is not with the previous life
led by X (nor with some future life X might lead), nor with the life of the able-
bodied man or woman….but with the kind of lives that people like X would
normally be expected to lead.
The comparator, in other words, is an adult of similar age, with the same
capabilities as P, affected by the same condition or suffering the same inherent
mental and physical disabilities and limitations as P.
because of his disabilities P is inherently restricted in the kind of life he can
lead. There is nothing to show that the life P is living at Z house is significantly
different from the kind of life that anyone with his concatenation of difficulties
could normally expect to lead, wherever and in whatever setting they were
living.”
Sex
D Borough Council v AB [2011]
• Act Specific Test – does P understand
– the mechanics of the Act
– that pregnancy can result
– that he/she may contract an STI
• Any other factors that should be considered?
• Alternative test to Act Specific?
How does this affect me?
• Occupational Therapist:
Occupational therapy is the assessment and treatment of
physical and psychiatric conditions using specific, purposeful
activity to prevent disability and promote independent
function in all aspects of daily life
NHS Careers website
COT Code of Ethics and
Professional Conduct 2010
• Considers in detail: – mental capacity principles – decision specific
– need for informed consent – consent for one thing, not
necessarily consent for another.
– your duty of care – includes duty to give effect to the
principles of the MCA
– professional integrity
– DOL – does my intervention contribute to a DOL?
Professional Integrity and duty to take care will compromised by a
failure to have regard to mental capacity issues and to obtain
informed consent to intervention where appropriate
Use of the Court of Protection
If there is a dispute about capacity or best interests - follow the best
interest process
– have a meeting
– consult the relevant people including P
– record the decision and the reasons for it
If the dispute persists:
– COP can resolve dispute on capacity and best interests
– COP Judges available 24/7 nationally
Obligation on Public Bodies to bring disputes to the attention of the Court –
LBH v Neary [2011] EWHC 1377
Case Study 1
• P profoundly LD – lives with parents – 20 yrs
old
• Moves around in his sleep so has a belt to strap her in place. Has had belt since a child
• Belt frays over years and parents look to local
authority to replace
• Concerns as to the safety of the belt and DOL
• What do we do?
Case Study 2
• P lives in institutional care – brain injury
following accident – 18 years old
• Making good progress so returns home to visit parents. Retreats to bedroom and
refuses to come out
• Will not engage with professionals (including OT who has worked with at the care home)
• What do we do?
Conclusions
• MCA and Code of Practice provide template for dealing with
mentally incapable
• MCA and Code of Practice widely known about and therefore
those acting in jurisdiction subject to scrutiny
• All decisions on behalf of/for an incapacitous person are subject
to MCA principles
• Principles might not always provide what appears to be the best
outcome
• Beware of interventions which restrict/deprive the liberty of a
person
• If you’re not sure ASK!
Conor Maguire
Public Law Department
Irwin Mitchell Solicitors
0114 274 4642
