Safeguarding Adults P2 Mental Capacity Act

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Safeguarding Adults P2 Mental Capacity Act

• Practitioner Level
• May 2015

www.devon.gov.uk/index/socialcarehealth/ scwd/sc
wd-safeguarding-adults.htm
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Housekeeping
Fire Procedure
Smoking
Toilets
Breaks
Finishing Time
Mobile Phones / Devices
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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)

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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.

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Introductions

• Name
• Place and nature of work
• What do you want to get out of todays session?

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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

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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

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Wellbeing

• ........... beginning with the assumption that
  the individual is best-placed to judge the
  individuals 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

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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.

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The MCA Process
Is there a concern about a persons capacity ?
(with regard to a specific decision) Undertake
a Capacity Assessment
Capacity Lack Capacity
Their own decision Best Interest
Decision (even if we think it is unwise)
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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

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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

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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 persons rights and
  freedom of action

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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

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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

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What is Duty of Care?
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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)

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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
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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 persons
  best interests - even if the person comes to
  harm.
• Good record keeping is essential.

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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

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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 its 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

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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
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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)?

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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 persons capacity
  to make a decision.

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Case Study - Sharon
We will use the DVD to explore the principles
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Planning your assessment

• What concerns has Sharons 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
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Planning Your Assessment

• What is the relevant information when assessing
  whether a person has capacity to decide where
  they will live?

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Your Role

• What issues commonly arise in relation to
  assessing capacity in your work?

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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?

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Experience

• is the name everyone gives to their mistakes.
• Oscar Wilde, 1854-1900

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The Next Step

• When you meet with Sharon shes really positive
  and seems very happy. Shes 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?

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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
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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?

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Is It Sharon's Choice?

• When you next meet Sharon her mood seems to have
  changed and shes 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?

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• 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 cant say no comfortably then yes has
  no meaning. If you are unwilling to accept no
  then yes has no meaning.
• Adamas and Fay (1984)

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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

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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?

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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
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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?

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Best Interest Checklist (1)

• Assess whether the person will regain capacity
• Can the decision be delayed?
• Identify all relevant circumstances
• Find out the persons views
• Past and present wishes feelings
• Cultural or other values
• Religious or other beliefs
• Advance Statements
• Advance Decisions to Refuse Treatment

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Advance Decisions to Refuse Treatment

• 18 with capacity
• Refuse any Medical Treatment in advance
• Cant request treatment
• Cant refuse Mental Health Treatment
• If life sustaining must be written, signed,
  witnessed and dated, other treatment can be
  verbal
• Legally binding

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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

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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?

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Best Interest Checklist (3)

• Avoid discrimination
• Not solely age, condition, appearance or
  behaviour
• Avoid restricting rights
• Dont be motivated by a desire to bring about the
  persons death
• Stopping treatment may be in someones Best
  Interest e.g. If they have no realistic prospect
  of recovery

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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

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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)

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Independent Mental Capacity Advocates

• Unbefriended?
• Serious Medical Treatment
• Hospital Admission gt 4 weeks
• Change of Accommodation gt 8 weeks
• Deprivation of Liberty Assessment
• Care Plan Review (optional)
• Safeguarding Process (optional)
• can be requested even if befriended

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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.

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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.

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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 peoples
  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 persons 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

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Helpful Tool

• www. ehealthtracker.co.uk

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Any Questions?
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Evaluation forms

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(No Transcript)
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Handout