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David Pennington Policy Lead DH SW
The Mental Capacity Act
and Deprivation of Liberty
Safeguards
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The Mental Capacity Act 2005
All of the Act came into force on 1st October 2007 but did
not permit deprivation of liberty before April 2009
New Court of Protection / Court appointed deputies
New Independent Mental Capacity Advocate service (since
April 2007 in England)
Office of the Public Guardian / Lasting Powers of Attorney
New research provisions
Statutory Advance Decisions to Refuse Treatment
New criminal offence ill treatment / wilful neglect (since
April 2007)
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The MCA 2005, is a statutory
obligation
Everyone working with and/or caring for an
adult who may lack capacity to make specific
decisions must comply with this Act when
making decisions or acting for that person,when the person lacks the capacity to make a
particular decision for themselves.
The same rules apply whether the decisions
are life-changing events or everyday matters.
Code of Practice 1.1
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LAC (DH) (2008) 4
Early evidence suggests that many staff andmanagers are not taking and recording all bestinterests decisions. The new requirements forthe assessment of capacity may require new
procedures to be developed, documentedand consulted on, covering; specific training;monitoring through regular supervision, andauditing in quality and compliance audits.There is little evidence that this is taking place
in a comprehensive manner.
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LAC (DH) (2008) 4
The Code spells out that not only should theBest Interests Decision be recorded, but theprocess of working out what is in someones
best interests should also be recorded, howthe decision was reached and the factorsconsidered in reaching that decision.
Again the feedback is that this too requires acultural shift which few organisations have yet
achieved.
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we need to ensure that
Everyone is aware of the mental capacity act
All staff understand how to assess capacity
All staff understand how to make a best interests decision
Information on Advance Decisions to refuse treatment is
recorded and acted on appropriately
You are aware of when someone has an attorney
who they have nominated to be consulted, and that they
are consulted when appropriate
HOW do we do this?
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When must an IMCA be
involved?When someone has been assessed as lacking capacity and
A NHS body is proposing
serious medical treatment
a stay of more than 28 days in hospital or 8 weeks in a
care home to change a persons accommodation to another hospital
for more than 28 days or more than 8 weeks in a carehome
A local authority proposes
to change or to provide residential accommodation formore than 8 weeks
and
the person has no appropriate relative, friend, or (unpaid)
carer
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SMT Issues
Lack of clarity about what is SMT
DH concern that significant numbers of
people may not be accessing an IMCA forSMT
Being older and having dementia are
associated with being less likely to accessIMCA for SMT
Difficulties gaining instruction
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When may an IMCA be
involved?
Where an un-befriended person who lacks
capacity;
a) has been in accommodation for more than 12
weeks and a review is proposed
b) Where it is proposed to take protective
measures following allegations of abuse or
neglect of the person, or where the person hasabused another.
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Issues
IMCAs instructed late in the decision making
process
Limited use for planned admissions to hospital or
when stay exceeds 28 days
Being instructed in advance of hospital discharge
Very limited use of IMCAs in
Accommodation/care reviews
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questions
How can we improve IMCA referrals for SMT?
How do we improve use if IMCAs for people with
dementia?
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MCA Issues
Integration of MCA into day to day practice
Confidence around restriction and restraint
CQC monitoring Use of MCA in Mental Health Units
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DOLS and the Mental
Capacity Act 2005
The safeguards are in addition to and part of the mental
capacity act. They do not replace it.
All the principles of the Mental Capacity Act still apply.
Ensuring least restrictive practice will reduce the risk of
deprivation of liberty
The same good practice with people who lack capacity
in making certain decisions about their care still applies.
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Activity as of 31.12.09
30.6.09 30.9.09 31.12.09
Granted : not
granted (25:75)
33:67 38:62 51:49
LA:PCT
(80:20)
77:23 76:24 76:24
LA % granted 30% 36% 51%
PCT % granted 41% 44% 49%
LA no activity 14 4 0
PCT no activity 40 19 8
Completed
assessments
1,856 (37%) 3,527 (36%) 5,322 (35%)
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Breakdown
Disability (more than one can be
recorded)
Q1 Q2 Q3
Physical disability 40% 44% 42%
Mental Health 65% 63% 67%
Dementia 44% 49% 53%
Learning Disability 23% 24% 19%
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Breakdown
Total number of requests required by urgent
authorisations
Q1 1250 (71%) Q2 1137 (67%)
Q3 1316 (70%)
Total number of requests where there was no urgent
authorisation
Q1 522 (29%) Q2 544 (33%)
Q3 553 (30%)
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Breakdown
Number of people subject to a standard authorisation duringthe quarter
Q1 593 Q2 768 Q3 948
Number of people subject to a standard authorisation
on 30.6.09 = 536
on 30.9.09 = 786
on 31.12.09 = 1074
Number of third party requests
Q1 41 leading to 26 full assessments
Q2 66 leading to 45 full assessmentsQ3 65 leading to 39 full assessments
Number of cases where no authorisation is given but person is(now unlawfully) deprived of their liberty
Q1 49 Q2 31 Q3 45
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Issue 1
Number of cases (49 / 31 / 45) where no authorisation
is given but person is (now unlawfully) deprived of
their liberty
What happens next?
Whose responsibility?
Paragraphs 4.72 and 4.73 of the Code
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Issue 2
Appointment of RPR who may be opposed to the
deprivation of liberty
Paragraph 7.17 of the Code
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Issue 3
Setting of conditions
Paragraphs 4.74 and 4.75 of the Code
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Failure to follow MCA or DOLS may result in legal
remedy
Solicitors have already taken cases to court on MCA and
DOLS CQC will be producing a report on DOLS from April 2010
MCA and DOLS are not just good practice but a LEGAL
REQUIREMENT