Capacity and Consent

Dr Alick Bush (Consultant Clinical Psychologist and Clinical Director)

Alick.bush@shsc.nhs.uk

Dr Zara Clarke (Clinical Psychologist)Zara.clarke@shsc.nhs.uk

Capacity and Consent

This presentation will cover main headlines–

• Mental Capacity Act (2005)

• Deprivation of Liberty legislation

• Alternatives to Restraint

What might be implications for GP’s?

Mental Capacity Act 2005

“Provides a statutory framework to empower and protect vulnerable people who may not be able to make their own decisions. It makes clear who takes decisions in which situations and how they should go about this. It enables people to plan ahead for a time when they may lose capacity.”

Implemented 1 April 2007

5 Key Principles

1. Presumption of capacity, unless proved otherwise.

2. Right to be supported to make decision, before concluded they can not make own decision.

3. Right to make “eccentric or unwise” decisions.4. Best interests – any act done for a person

without capacity must be “in their best interests”.

5. Least restrictive intervention.

Assessing lack of capacity

Testing whether someone is unable to make a specific decision:•Understand the information relevant to the decision (understand consequences of options)•Retain that information•Weigh up that information as part of a decision-making process•Communicate the decision

Section 5 – Acts in connection with care or treatment

• Where a person provides care to someone who lacks capacity, they can provide it without incurring legal liability

• Providing there is a proper assessment of capacity and best interests

• Examples – giving injection, spending person’s money to buy items, attending to personal hygiene, change of residence, basic life support

• This applies to all carers. Therefore all carers must understand MCA

Best interests

• Everything done for person who lacks capacity must be in their “best interests”

• Section 4 sets out a checklist of steps and factors to be considered

• Consideration must be given to whether there are other options that may be less restrictive of the person’s rights.

• The decision maker must reasonably believe that any action intended to restrain a person who lacks capacity is necessary to prevent harm to the person and a proportionate response to the likelihood and seriousness of harm

What role do GPs play ?

• Being aware of their obligations under the Mental Capacity Act, in terms of providing care/treatment to people whose capacity is in question– Does patient have the capacity to consent to

treatment?– If not, how to make best interests decision legally

• Seeking out further advice/support (for example, from the Learning Disabilities Service) in difficult/unusual situations

Deprivation of Liberty Safeguards

• Introduced into MCA through the Mental Health Act Amendments 2007

• Became a LA/PCT statutory duty 1st April 2009• Only applies to people who lack capacity (as defined in

MCA)• Safeguards cover people in hospital and care homes

registered under the Care Standards Act 2000 • It will prevent arbitrary decisions that deprive vulnerable

people of their liberty • Safeguards are to protect service users providing them

with representatives, regular reviews and rights of appeal

So what do we mean by a Deprivation of Liberty?

• Code of Practice distinguishes between: Restriction of liberty – lawful if it is in a person’s best

interests. Deprivation of Liberty – unlawful breach of human

rights without legal statute “ The distinction between deprivation of, and restriction of

liberty, is one of degree or intensity and not one of nature or substance” (DoH)

A point comes where a restriction of liberty becomes a Deprivation of Liberty

What is a Deprivation of Liberty?

Not – by themselves – a DOL• Locked ward• Keypad / double door handles• Bringing back the patient who

has wandered• Reasonable persuasion being

used to take a confused person to hospital

• Placing reasonable limitations on visitation rights

• Refusing to let the patient leave without an escort whose job it is to support the patient

One or more would be a DOL• Force being used to take a

resisting person to hospital• Force being used to prevent a

person leaving hospital where they persistently try to leave

• Severely restricting access to the patient by relatives & carers

• Decision to admit being opposed by relatives / carers who live with the patient

• Denying a request by relatives to have the person discharged to their care

Subsequent case law

• DE and JE v Surrey County Council• DE wished to have her husband discharged from a care

home. JE said he wanted to go back to live with his wife (he lacked capacity to make an informed decision).

• Surrey Council opposed this on the grounds of risk to JE and took steps to prevent it from happening.

• The Court ruled this was a DoL even though there were no other restrictions within his care setting.

• Therefore being prevented from leaving might constitute a Deprivation of Liberty!

What role do GPs play ?

• Being aware of when deprivations of liberty may be taking place

• Making nursing and care homes aware of their obligations to refer (there are standard letters for this)

• Seeking advice from the Supervisory Body as appropriate

• Providing information to the appointed assessors about the patient

What is restraint ?

The Oxford Dictionary defines “restraint” as

“to check or hold in; to keep in check or under control; keep down”

Types of Restraint

• Physical restraint

• Mechanical restraint

• Chemical restraint

• Restricting individuals’ choices

• Withholding information

• And more………

Why is it important ?

• Risk of death

• Sometimes restraint is necessary, to keep people safe. There is a balance to be found between restraint, risk and duty of care. This is not always easy to find.

• Close links with other legal/policy agendas – – The Mental Capacity Act (2005)– Deprivation of Liberty Safeguards– Human Rights Act (1998)– Safeguarding Adults

• Issues around poor practice in relation to restraint have been highlighted in many reports/inquiries

What’s happening in Sheffield ?

• “Joint Policy on the Prevention and Management of the use of Restraint” launched July 2005– Sets out the framework for the prevention and management of

the use of restraint across Health and Social Care. – It applies to all adults receiving, or assessed as requiring,

services that are provided or commissioned by SHSC or N&CC

• The Joint Learning Disabilities Service has developed - – Operational Guidance and a referral system for ‘restraint’ issues– Accessible Guidance around the issue of restraint – Training to all of its staff around Alternatives to Restraint– Alternatives to Restraint Practice Development Group

Easy English Guide

What role could GPs play ?

• Be aware of the legal, ethical and policy contexts around restraint

• Make referrals to the learning disabilities teams where restraint may be an issue

Further information

• www.signpostsheffield.org.uk• Deprivation of Liberty Safeguards hotline – 0114 205

3783 (Mon-Fri 9.30-4.00)• Alternatives to Restraint – Zara Clarke – 0114 271 6939

or Anita Winter 0114 271 6741• Mental Capacity Act Code of Practice –

http://www.dca.gov.uk/legal-policy/mental-capacity/mca-cp.pdf

• Deprivation of Liberty Safeguards Code of Practice - http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_085476