mental capacity act and deprivation of liberty, news and case law update - ben troke - april 2016

@BJhealthlaw

@BJhealthlaw

News and case law update

4 May 2016

@BJhealthlaw

• safeguarding, self neglect and MCA -

obstructive families and assessing capacity

• DNACPR - futility and best interests

• weight on P’s wishes – CS v an NHS Trust

• Re X – the ‘streamlined’ COP process, and

the ‘unbefriended’

• news – DoL in ICU

• no news – the Law Commission on DoL

@BJhealthlaw

“Safeguarding means protecting an adult’s

right to live in safety, free from abuse and

neglect” (14.7)

@BJhealthlaw

Cf - “People have complex lives and being

safe is only one of the things that they want

for themselves” (14.8)

@BJhealthlaw

“people must be assumed to have capacity

to make their own decisions” … (14.55)

@BJhealthlaw

“Mental capacity is frequently raised in

relation to adult safeguarding. The

requirement to apply the MCA in adult

safeguarding enquiries challenges many

professionals and requires utmost care,

particularly where the adult has capacity

for making specific decisions that

nevertheless places them at risk of being

abused or neglected” (14.58)

@BJhealthlaw

• Care Act 2014 and statutory guidance –

‘abuse or neglect’ now explicitly includes

‘self neglect’

• duty to assess needs (s9) unless adult

refuses (s11(1))

@BJhealthlaw

• BUT the local authority may not rely on

subsection (1) (and so must carry out a

needs assessment) if…

– (a)the adult lacks capacity to refuse the

assessment and the authority is satisfied

that carrying out the assessment would be

in the adult’s best interests, or

– (b)the adult is experiencing, or is at risk

of, abuse or neglect.

@BJhealthlaw

• safeguarding ≠ capacity

• very little practical guidance on the sharp

edge

• instinct to generalise

• risk of ‘organisational abuse’ / liabilities

• inevitable tension – get support and

advice early!

@BJhealthlaw

• D (91) – discharged self from Hospital

against advice after heart attack 2005 –

supported by son

• D continued to refuse all social care / GP

visits

• 2011 – D noted to be wandering /

unkempt – often returned home by police

/ ambulance - confused

@BJhealthlaw

• Son always attended, but refused /

obstructed services – later bringing

proceedings / complaints

• 24.12.12 - D admitted with severe

pressure sores, very sick, emaciated and

frail

• Died 12.1.13.

@BJhealthlaw

Janet Tracey v Cambridge University

Hospitals FT (2014)

“doctors should be wary of being too ready

to exclude patients from the process on the

grounds their involvement is likely to

distress them”

@BJhealthlaw

• discuss with patient their wishes as soon as

possible

• review when circumstances change

• failure to consult with patient can breach

Article 8 (right to private and family life)

• NHS Constitution: “no decision about me

without me”

• keep good record of all discussions

@BJhealthlaw

• doctor decides what options clinically

indicated

• doctor offers treatment options explaining

risks/benefits

• patient decides which treatment to accept (or

a best interests decision is made)

• if a doctor decides a form of treatment is not

appropriate then he/she is not required to

provide it (although offer second opinion)

@BJhealthlaw

“[t]here is nothing in the case of Tracey or the Strasbourg case

law to suggest that the concept of human dignity applies any the

less in the case of a patient without capacity” (paragraph 45).

Winspear v City Hospitals Sunderland NHS FT (2015)

@BJhealthlaw

• is DNACPR decision due to ‘futility’ –

in which case no obligation to offer it

– but still a duty to inform and discuss

with patient

@BJhealthlaw

• or due to (covert) best interests

decision? Inappropriate if patient has

capacity – if CPR is available option,

it is patient’s decision. If patient

lacks capacity then needs proper BI

decision process, inc P’s wishes, and

consultation including per MCA s4(7)

@BJhealthlaw

• neither having nor lacking capacity

entitles P to demand treatment to be

offered which is not clinically

indicated

• but neither having nor lacking

capacity obviates obligations on

clinicians to discuss with P / family

@BJhealthlaw

• alleged abusive relationship, pregnancy

and intended abortion

• assault by partner causing head injuries –

partner arrested and in custody

• life saving treatment, and capacity to

decide on TOP lost, and unlikely to be

regained in time

@BJhealthlaw

• P now says that she wants to keep the

baby (?)

• should wishes before or after loss of

capacity prevail?

@BJhealthlaw

• Cheshire West – March 2014

• Re X – Summer 2014

• COPDOL10 – November 2014 – streamlined

process

• Re X – Court of Appeal – June 2015

• NRA – September 2015 – Charles J - role

of rule 3A reps

• but - what do you do if there’s no obvious

(unpaid) rule 3A rep available?

@BJhealthlaw

• who can be rule 3A rep where there is no

family member?

• OS will reach ‘saturation point’ quickly

• in reality – no other resource available

• SoS has ‘failed to face up to’ resource

implications

@BJhealthlaw

• Charles J therefore ordered:

– Ministry of Justice (which funds the OS)

and DoH joined as parties

– invited parties to take steps to identify

suitable person as Rule 3A rep or identify

an alternative procedure available to the

CoP

@BJhealthlaw

• Charles J therefore ordered:

– staying applications pending identification

of practically available alternative

procedure

– parties could apply to lift the stay

@BJhealthlaw

• Charles J therefore ordered:

– SoS can provide the necessary funds

(directly commission advocacy / funds LAs

/ LAA / OS), OR

– take a test case back to Supreme Court to

challenge Cheshire West

@BJhealthlaw

• keep making COP DOL10 applications – ie

Re X process (though this will be revised

shortly)

• for the Court to decide

– whether to authorise the deprivation

– whether to add P to the proceedings /

make a family member a rule 3A rep, or

stay proceedings

• NB trigger is being “at risk of being

DoL…”

@BJhealthlaw

• DoL in ICU – Ferreira case is going to the

Court of Appeal (?February 2017)

• Law Commission on DoL – watch this

space…

@BJhealthlaw

Please get in touch if you have any questions

or wish to discuss the topics we’ve covered

further…

ben.troke@brownejacobson.com | 0115 976 6263