Trafford Safeguarding Adults Board

Mental Capacity ActPolicy and Procedures

Including Deprivation of Liberty

SafeguardingJune 2016

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If you don’t do something who will?

Trafford Adult Safeguarding Board

Version Control

Document History

Version Date Author Change History1.0 March 16 Sheila Dawber

Gilli PainterRoxana ClarkCatherine Sainsbury

Document Reviewers

No. Name Role Date Issue

Document Approvals

Name Role Date Version

Date of Next Review

Date ServiceJuly 2017 Safeguarding Board

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This policy and procedures document must be read in conjunction with the Mental Capacity Act 2005 and its related Codes of Practice. Practitioners are required to have regard to these Codes as the statutory guidance on all MCA and DOLS matters. It should also be read in line with Trafford’s Multi-Agency Safeguarding Adults Policy and Procedures: www.trafford.gov.uk/adultsafeguarding and the Care Act 2014

Contents Page

1. Introduction 1.1 Purpose and Scope of the Document 51.2 Governance / Structure 51.3 Mental Capacity Act Policy 51.3.1 Statutory Principles of Mental Capacity Act 51.3.2 Context of

Mental Capacity Act Legislation 61.3.3 Context of Depravation of Liberty Legislation 71.3.4 Restraint and Restriction 81.3.5 Training 91.3.6 Multi-agency Scope 9

2 Procedures for all staff 9 2.1 Mental Capacity Act Flowchart 10

2.2 Support to make a decision 112.3 Capacity 112.4 Assessing Capacity 112.5 Flowchart to support routine or specialist assessment decision 142.6 Best Interests decision making 152.7 Implementing a best interests decision 16

3 Deprivation of Liberty Safeguards (DoLS) 173.1 DoLS Procedures for Managing Authorities 17

3.2 Flowchart A Deciding if an authorisation may be needed 18 3.3 Flowchart B the Application Process 19 3.4 Flowchart C Managing Authority’s Responsibilities Following an 20 Application

3.5 DoLS Procedures for the Supervisory Body 21

4 Recording 23

5 Safeguarding 24 5.1 Abuse by an Attorney or Deputy 24

6 The Legal Position of 16 - 18 year olds in relation to the Mental 25 Capacity Act 6.1 When can decisions be made for 16-17 year olds who lack capacity? 25 6.2 Consent to treatment 26

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6.3 Who has parental responsibility? 26 6.4 What is parental responsibility and the zone of parental control? 27 6.5 How to make decisions for young people who lack capacity 27 6.6 Information sharing 28

7 Workforce Competency Framework for MCA and DoLS 29

8 Research 32

9 Information and Advice 33

Appendix 1 – NB for staff that use Liquid Logic these forms are available electronically within the Liquid Logic workflow

Trafford Capacity Assessment and Best Interest Pack 34Contents of Pack and Information Guidance & Support Contacts 35Capacity Assessment Guidance 36Competency Framework Process steps 1 – 5 37 Capacity Assessment Form 44Generic best Interest Form 50Balance Sheet Tool 54Do Not Attempt Resuscitation (DNAR) - Guidance 56DNAR Best Interest Decision Form 58

Appendix 2 Definition of terms 62

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1. Introduction 1.1 Purpose and scope of document

This document gives detailed guidance, through this policy and the following procedures, for professionals to implement the Mental Capacity Act (MCA) 2005 and the Deprivation of Liberty Safeguards 2009 (DOLS) in Trafford.

1.2 Governance / Structure

Role ResponsibilityDirectorate for Adults, • Trafford’s Safeguarding Adults Board maintain the governance

and oversight of the implementation of this policy and proceduresMental Capacity Act &

Deprivation Of Liberty Safeguarding Lead

•To advise Trafford’s Safeguarding Board on any changes or updates relating to the Mental Capacity Act and related regulations

•To disseminate information as appropriateDeprivation of LibertySafeguards Team

•To act as co-ordinator for all Deprivation Of Liberty Safeguarding requests on behalf of the Supervisory Body

Deprivation Of Liberty Safeguarding Supervisory Body

•To review request for Deprivation Of Liberty Safeguarding and grant authorisation if all qualifying requirements are met

1.3 Mental Capacity Act Policy

Trafford Safeguarding Adults Board (TSAB) is committed to ensuring that people who use Trafford services and who may lack capacity to make decisions are provided with high quality care from a knowledgeable and competent workforce.

This policy and the following procedures, alongside the implementation of the related Codes of Practice, aim to ensure that staff are aware of the requirements of the MCA and are able to comply with their legal duties. The following statutory principles also underpin this policy and its procedures.

1.3.1 Statutory Principles of the Mental Capacity Act 2005

The Act establishes five “statutory principles” which underpin the legislation and which must be applied in all circumstances. These are laid out in section 1 of the MCA (2005), as follows:

1 Assumption of capacity: “a person must be assumed to have capacity unless it is established that he or she lacks capacity” Every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise.

2 Assisted decision-making: “a person is not to be treated as unable to make a decisionunless all appropriate practicable steps to help him/her to do so have been taken without success.”

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3 Unwise decisions: “a person is not to be treated as unable to make a decision merely because s/he makes an unwise decision.” Individuals retain the right to make what might be seen as eccentric or unwise decisions.

4 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/her best interests.”

5 Least restrictive alternative: “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.”

1.3.2 Context of the Mental Capacity Act Legislation

The Mental Capacity Act (MCA) 2005 and the associated Statutory Code of Practice published under the Act, provides the legal framework for acting and making decisions on behalf of individuals of 16 years and over who lack the mental capacity to make particular decisions for themselves. The MCA a p p l i e s to every day matters and life changing decisions, like what to wear, or such as whether the person should move into a care home or undergo a major surgical operation. The statutory framework empowers and protects people that may lack, or have reduced, capacity to make certain decisions at particular times. http://www.legislation.gov.uk/ukpga/2005/9/contents)

The Act requires an assumption that a person has capacity unless proved otherwise, and an assessment to identify which decision(s) a person may have capacity to make and those that they may have not and the times at which they may have or lack capacity. All practical steps to assist and help people who may and do lack capacity to be involved in decisions that affect them must be taken and people with limited ability to communicate must be assisted to do so . Professionals and staff need to understand, behave in accordance and always work in line with the Mental Capacity Act, balancing many competing views using their professional judgement.

The MCA also brought into effect, under Section 44, the creation of the criminal offences of ill-treatment and wilful neglect in respect of people who lack the ability to make decisions (see Page 59). The offences can be committed by anyone responsible for that adults care and support, including paid staff and family carers, as well as people who have the legal authority to act on that adults behalf (i.e. persons with Power of Attorney or Court Appointed deputies).

These offences are punishable by fines or imprisonment. Ill treatment covers both deliberate acts of ill-treatment and also those acts which result in ill-treatment. Wilful neglect requires a serious departure from the required standards of support or treatment and usually means that a person has deliberately failed to carry out an act that they knew they were under a duty to perform. The police must be fully involved in any safeguarding concern where there is a possibility or suspicion of ill-treatment or neglect as they take the lead in deciding whether to initiate criminal proceedings.

The MCA includes the statutory provision of Independent Mental Capacity Advocates (IMCAs). (See 2.8 page 28) An IMCA is someone appointed to support a person who lacks capacity but has no one to speak for them. The IMCA makes representations about the person’s wishes, feelings, beliefs and values, at the same time bringing to the attention of the decision-maker all factors that are relevant to the decision. The IMCA can challenge the

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decision-maker on behalf of the person lacking capacity, if necessary.

There are distinct differences between an IMCA introduced under the Mental Capacity Act and an Independent Advocate introduced under the Care Act 2014. Independent Advocates cannot undertake Advocacy services under the MCA 2005, however where there is an appointed IMCA they may also take on the role of Independent Advocate under the Care Act. Within Safeguarding an IMCA can be appointed to support the person through the process even though they may have a representative in place.

The Act provided for reform of the previous statutory schemes of Enduring Powers of Attorney and of Court of Protection Receivers and created the Office of the Public Guardian (OPG). It created a new legal framework for Powers of Attorney and for Deputies of the Court of Protection in regard to wider decisions around both Property & Affairs and Personal Welfare. The Act further established the legal status of Advance Decisions, and the lesser role of written statements.

1.3.3 Deprivation of Liberty Safeguarding Legislation

The Deprivation of Liberty Safeguards (DOLS) came into force on 1st April 2009, as an amendment to the Mental Capacity Act, to protect the human rights of people who lack capacity to consent to care or treatment in a hospital or registered care home. The Safeguards provide for the lawful deprivation of liberty of people who lack capacity to consent to arrangements for their care or treatment in either hospitals or care homes, but who need to be deprived of liberty in their best interests, to protect them from harm.

In March 2014 the Supreme Court clarified that a deprivation of liberty where a person:• Is under continuous supervision and control; and• Is not free to leave;• Lacks capacity to consent to these arrangements; and• Whose confinement is the responsibility of the state.

The Court held that factors not relevant to determining whether there is a deprivation of liberty include:

• The persons compliance or lack of objection• The reason or purpose behind a particular placement; and • The extent to which it enables them to love a relatively normal life for someone

with their level of disability

This test is far broader than those set by previous judgements, so that disabled people should not face a tougher standard for deprivation of liberty than people who are not disabled.

This test also applies in domestic/ home type settings where the State is responsible for imposing such arrangements. This may include a placement in a supported living arrangement in the community. Community placements must be authorised by the Court of Protection.

DoLS applies to people in England and Wales • who are 18 years or older, • who have a mental disorder of the mind such as dementia or a profound learning

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disability, but may also include people with neurological conditions, for example, as the result of a brain injury.

• who lack capacity to give informed consent to the arrangements made for their care or treatment

• for whom the deprivation of liberty ( with the meaning of Article 5 of the European Convention on Human Rights) is considered after an independent assessment to be necessary in their best interests to protect them from harm

• or where the criteria for detention under the Mental Health Act 1983 are not met at the time the care and treatment is proposed

The Safeguards and Accompanying Regulations assign specific statutory responsibilities to local authorities, primary care trusts, hospitals and care homes. Local authorities are designated as ‘Supervisory Bodies’ whilst hospitals and care homes are designated as ‘Managing Authorities’. The Safeguards apply to people in hospitals and care homes which are registered under the Care Act 2014, whether they have been placed there by a primary care trust, a local authority or through private arrangements.

Trafford Council is the ‘Supervisory Body’ under the legislation, and has put in place arrangements in the Borough of Trafford for managing DOLS Applications, the Assessments, and where required, the issue and review of DOLS Standard Authorisations.

1.3.4 Restraint and Restriction

There is a difference between Deprivation of Liberty (which is unlawful, unless authorised) and restrictions on an individual’s freedom of movement.

Restraints of movement can be lawfully carried out in someone’s best interest to prevent harm, if done in accordance with the principles and guidance set out in the Mental Capacity Act. Neither the Mental Capacity Act nor DoLS can be used to justify the use of restraint for the protection of members of staff or other service users

Examples of Restraint and Restriction include:• Using lock or keypads to prevent a person leaving a specific area• Administration of certain medication, e.g. to calm a person• Requiring a person to be closely supervised indoors and outdoors• Restricting contact with family and friends • Physical intervention to prevent someone from doing something that could harm

themselves• Removing items from a person which could harm them• Holding a person so they can be given care or treatment• Using bedrails, wheelchair straps and splints• The s person having to stay somewhere they don’t wat • The person having to stay somewhere their family doesn’t want

When designing and implementing care and support and treatment plans for people who lack capacity, professionals should be alert to any restrictions and /or restraints which may be of a degree or intensity that mean an individual is being, or is likely to be, deprived of their liberty and should always explore all alternative ways of providing the support or treatment in order to identify the least restrictive alternatives.

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1.3.5 Training and Supervision

In accordance with Department of Health directives, staff across Trafford have access to a range of Mental Capacity Act related training. For further information see Trafford’s Adults Training Plan

Regular face-to-face supervision from skilled managers is essential to enable staff towork confidently and competently in difficult and sensitive situations. Trafford Council has a robust supervision policy for staff to ensure regular recorded supervision is undertaken by experienced managers, giving staff the opportunity to raise concerns and discuss practice.

All staff are guided and encouraged to use formal and informal supervision to discuss any issues and learning.

1.3.6 Multi-Agency Scope

This policy and procedures are for adoption by partner agencies and commissioned services, provided by the respective organisations of Trafford’s Safeguarding Adults Board.

2. Mental Capacity Act Procedures for ALL staff The following procedures apply to all staff as defined in the above scope who work with people aged 16 and over, ( 18 and over for DoLS) who may lack the capacity to consent to their care or treatment, including in circumstances that might be considered a deprivation of liberty.

The Mental Capacity Act outlines the process of enabling vulnerable people to make decisions for them, and the process of formally assessing capacity where doubt exists about the person’s ability to make a specific decision.

People must be assumed to have capacity to make their own decisions and be given all practicable help before anyone treats them as not being able to make their own decisions. Where an adult is found to lack capacity to make a decision then any action taken, or any decision made for, or on their behalf, must be made in their best interests. Where a person is deemed to lack capacity, the Act describes how we should approach the process of making a best interest decision. Whilst the process is fairly straight forward, implementation of it in practice can be complex, for example in situations where a person fluctuates in their ability to make decisions. Additional guidance, support and best practice principles are contained within these procedures in order to overcome the common queries professionals may have. Additionally staff can seek support from their line manager.

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Mental Capacity Act FlowchartThis flowchart supports the MCA procedures for all staff

Decision enabling

Decision needs to be madeAssume capacity and provide support appropriate to the person and to the decision.

You may wish to consider any written statement of wishes created by the person.

Doubt exists about capacity Person makes an informed decision

AssessAssess capacity

� Decide who will lead the assessment� Record all evidence against the two-stage test

Remember person has a right to make an unwise decision.Duty of care – including risk management and promotion of rights

On balance, person LACKS capacity On balance, person HAS capacity

DecideSect 4

Make a best interests decision� Decide most appropriate decision maker – ensure you

identify any existing ADRT*, Attorney or Court Deputy� Is the person eligible for IMCA?� Ensure each aspect of best interests checklist is followed� Consider any written statement of wishes� Record your decision and reasons for it

Duty of care – including risk management and promotion of rights

Implement the decision

Carry out the decision Sect 5 & Sect 6

No restraint or restriction required

Some restriction required:Record WHY this isnecessary, proportionate and in the person’s best interests

Monitor and review

Deprivation of liberty is required Follow authorisation process

*Advance Decisions toRefuse Treatment (ADRT)

Replace “living wills” and allow people to have some control over their medical treatment should they lose capacity in the future.

See Code of Practice for further guidance.

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2.2 Support to make a decision

The process of decision making should be based on the five principles of the Act and should, first and foremost, involve the person being given all ‘practicable’ and ‘individualised support’ to make a decision for themselves. The Code of Practice provides guidance as to how this could be achieved and the information below is intended to complement that. Where possible:

• Delay the decision where the person’s capacity may improve and the decision itself is not urgent.

• Provide support at a time when the person is at their highest level of functioning.• Present information in a format that is most accessible for the person who is being assessed.• Use memory aids where it is helpful to aid the person’s understanding.• Hold the discussion in an environment familiar to the person.• Give the person enough time to process the information – decision making is often a

process.• Minimise external pressure or coercion that may impact on the individual.

2.3 Capacity

Mental Capacity is time and decision specific. The Mental Capacity Act says that

“…a person lacks capacity in relation to a matter if at the material time he/she is unable to make a decision for him/herself in relation to the matter because of an impairment of or disturbance in the functioning of the mind or brain. Further, a person is not able to make a decision if they are unable to:

• Understand the information relevant to the decision; or• Retain that information long enough for them to make a decision; or• Use or weigh that information as part of the process of making the decision; or• Communicate their decision, whether by talking, using sign language, or by any other means such

as muscle movements, blinking an eye or squeezing a hand

This means that an adult may be able to make some decision at one point but not at other points in time. The person’s ability to make a decision may also fluctuate over time. If an adult is subject to coercion or undue influence by another person this may impair their judgement and could impact upon their ability to make decisions.

2.4 Assessing Capacity

Where capacity issues are identified assessment of capacity must be undertaken by an appropriate and competent person (see Section 7 page 26 )

To help determine if a person lacks capacity, the Act sets out a two stage test.Stage 1: Does the person have an impairment of, or a disturbance in the functioning of their mind or brain?

Stage 1 requires evidence that the person has an impairment or disturbance of the mind or brain. If a

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person does not have such an impairment or disturbance of the mind or brain they will not lack capacity under the Act. Examples include

• Conditions associated with some forms of mental ill health• Dementia• Significant Learning Disabilities• Long term effects of brain damage • Physical or mental conditions that cause confusion, drowsiness or loss of consciousness• Delirium• Concussion following a head injury• Symptoms of alcohol or drug use

Stage 2: Does the impairment or disturbance mean that he person is unable to make a specific decision when they need to?

Stage 2 requires that the person is given all practical and appropriate support to help them make the decision for themselves. Stage 2 can only apply if all practical and appropriate support to help the person make the decision has failed. A person is considered unable to make a decision if they cannot:

• Understand information about the decision to be made – the ‘relevant information ‘• Retain that information in their mind• Use or weigh that information as part of the decision making process; or• Communicate their decision by talking, using sign language, or by any other means such as

muscle movements, blinking an eye or squeezing a hand

When assessing capacity, the following points from the Code of Practice should inform practice:

When do I assesscapacity?

If there is more than one decision to be made, then a capacity assessmentshould be done for each decision

• When there is a specific decision to be made and there is doubt about the person’s ability to make a specific decision

• At the time the decision needs to be made

Who conducts thecapacityassessment?

The Code of Practice is not prescriptive about who should assess capacitybut the following points may be of help.• For most routine decisions the person who assesses capacity will be

the person directly concerned with the individual at that time.• More complex decisions may require a particular professional to

lead the assessment. This may be:• The registered professional proposing the decision who has the

competence, knowledge and relevant skills• The person who would be the decision maker if the

individual lacks capacity• A specific named professional, for example a solicitor in relation

to legal transactions

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How sure does anassessor need tobe?

Capacity is decided on the balance of probability; this is called the ‘reasonable belief test,’ in other words you should be more sure than not.

Where should anassessment be recorded?

The assessments are recorded as required by the employing agency. It is most important to ensure that all recordings are evidence based.

• Routine assessments can be recorded using appropriate documentation for example assessments, medical notes or care plans.

• Specialist or more complex assessments should be recorded on the capacity assessment tool in appendix 1.

To help you determine the difference between a routine or more specialist assessment refer to the diagram on the next page:

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Mental Capacity Act: Routine or Specialist Capacity Assessments

To be undertaken where there is a reasonable doubt as to the

patient I service user's capacity to address the 'decision in question'

→

2.5

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Specialist Capacity

Assessments

Complex / Time

demanding

Routine Capacity Assessments:

Diagnostic examinations and tests (to identify an illness, condition or other concern).

Professional medical, dental and similar treatment.

Giving medication.

Taking someone to hospital for assessment or treatment.

Providing nursing care (whether in hospital or in the community).

Providing necessary medical procedures (for example, taking a blood sample) or therapies (for example, physiotherapy or chiropody).

Providing everyday care, for example to assist with: washing, dressing, eating and drinking, mobility and communication, small purchases and bill payments.

Specialist Capacity Assessments:

Serious Medical Treatments and Therapeutic Interventions (physical & psychological)

Relevant hospital or care accommodation moves.

Adult Safeguarding/Protection concerns

Care Plan Reviews proposing changes of residence or other major quality of life matters.

Financial matters involving large purchases, wills, trusts and savings.

Valid & Applicable Advanced Decision for Refusal of Medical Treatment & Advanced Decision to Refuse Life Sustaining Medical Treatment

Decision in question -Understand,

Retain, Use, and Weigh

Communicate

Routine Capacity

Assessments

A Capacity Assessment is undertaken by a worker with the competence to do so based upon their knowledge and skills relevant to the needs of the service user, and mindful of the key principles. The assessor may not necessarily be the ‘decision maker’. A ‘best interest decision’ may need to be made where the patient / service user is assessed as lacking capacity.

ORDINARY OR LESS

SIGNIFICANT IMPACT

SIGNIFICANT OR HIGH IMPACT

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2.6 Best Interests decision making

When should a bestinterests decision be made?

• When the person is assessed as lacking capacity.

Who can be adecision maker?

• A range of different decision makers may be involved with a person who lacks capacity to make different decisions.

• For most day to day decisions, the decision maker will usually be the person caring for or supporting the person on a day to day basis.

• Lasting Powers of Attorney or Court Deputies will always act as a decision maker within the scope of their legal powers.

• Sometimes the decision maker should be the person implementing the decision, e.g. hospital or social care professionals.

• A joint decision may be most appropriate, for example when creating a care plan.

What should guidethe decision maker?

• Decision makers should always follow the statutory best interests checklist which can be found in the Mental Capacity Act Code of Practice and outlined in the best interest decision form ( Page 46)

• Give full consideration of whether it would be appropriate to delay the decision.

• Always consider whether the person meets the criteria for an Independent Mental Capacity Advocate (IMCA) and appoint one where the criteria are met.

The eligibility criteria are: The person must lack capacity about a specific decision The person must be un-befriended (no friends or family who

are appropriate/available to consult) The decision must be about serious medical treatment or a

significant change in accommodation (longer than 28 days in hospital or more than 8 weeks in any other setting).

• Identify if there is any Lasting Power of Attorney or Court Deputy that should make the decision.

• Consider how you will consult others. It is not a requirement to hold a best interests meeting but it may be good practice in some circumstances.

• Consider applying a ‘balance sheet’ approach to assessing the risks and benefits of each alternative. ( Page 50)

• Once a decision has been made, consider if you need to review it at a later date.

• In controversial and complex circumstances, decisions about best interests should be referred to the Court of Protection. This should be discussed with your legal team, in the first instance. through your line manager and with the approval of your service.

How shoulddecisions be recorded?

• Routine decisions can be recorded in appropriate documentation, for example electronic case notes, medical notes or care plans.

• Specialist or more complex decisions should be recorded on the best interest tool ( Page 45)

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2.7 Implementing a Best Interests Decision

Everything that is done for or on behalf of the person who lacks capacity will be in that person’s best interest. The Act provides a checklist of factors that decision-makers must work through in deciding what is in a person’s best interest. A person can put his or her wishes and feelings into a written statement, if they so wish, which the person making the determination must consider. Also, carers and family members will be consulted.

Once a best interest decision has been made, the decision maker will need to consider how the decision will be implemented. They must give thought to how the person’s dignity and human rights can be maintained and how any restrictions that may be needed can be minimised.

Section 5 of the Mental Capacity Act provides protection for anyone carrying out actions in connection with care or treatment of people who lack capacity. Any actions taken must always be in the best interests of the person and fully recorded.

In some instances, it may not be possible to act on behalf of a person who lacks capacity without using some form of restriction or restraint. Section 6 of the Mental Capacity Act permits the use of restraint in circumstances where it is:

proportionate to the risk of harm absolutely necessary at the time in the person’s best interests

A restriction could include anything from an instruction to physical or chemical restraint. The Code of Practice outlines the types of restraint that may be used under section 6.

Section 6 does not sanction restrictions or restraints where the person’s right to liberty under Article 5 of the European Convention of Human Rights is breached. If a person needs to be deprived of their liberty in order to receive care or treatment deemed to be in their best interests, authorisation must be sought.

If the person is over 18, they lack capacity, have a mental disorder and are residing either in a hospital or a registered care home, a deprivation of liberty authorisation must be sought from the supervisory body (See Deprivation of Liberty Safeguards guidance below). Deprivation of Liberty in any other setting must be sought via court order from the Court of Protection. In these circumstances speak to your line manager and, if appropriate, legal team. Advice should also be sought from the DoLS team.

The forms for completing and recording Best Interest Capacity Assessments, Deprivation of Liberty, and Court of Protection can be found on Trafford’s website and in Trafford’s electronic case recording system.

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3. Deprivation of Liberty Safeguards (DoLS) Trafford Council operates an agreement to undertake the statutory DoLS duties on behalf of all Trafford agencies. The DoLS team advises on the process for Trafford agencies to follow and undertakes th e co o rd inatio n o f assessor payments for contracted casework, the management of the workloads and professional activities of Best Interests Assessors, Mental Health Assessors, Paid Relevant Person’s Representatives, IMCAs and other activities for people in hospital, a nursing or residential home. For people living at home or in a supported type of accommodation, an application must be made to the Court of Protection.

Whilst the bulk of the statutory duties under the DoLS lie with the Managing Authority and the Supervisory Body, all professionals are responsible for upholding the human rights of service users; this includes being alert to potential unlawful Deprivations of Liberty. Commissioners of care are responsible for ensuring that any care package is commissioned in compliance with the Code of Practice for the Mental Capacity Act 2005, and does not include an illegal Deprivation of Liberty.

Anyone with a concern should speak to the care home or hospital staff to discuss if a Deprivation of Liberty is occurring. It is then the responsibility of the care home or hospital to apply for the DoLS, if a person is, or is thought to be, deprived of liberty.

This would lead to the full assessment process if the initial finding is that the person is deprived of their liberty. Deprivation of a person’s liberty is a serious matter and should be avoided wherever possible. One important way of avoiding deprivation of liberty is to reduce the amount and intensity of restrictions being applied, however possible.

Where family members have concerns that the hospital or care home are not responding to their concern, they can apply to the supervisory body to trigger an assessment if the eligibility criteria are met.

3.1 DoLS Procedures for Managing Authorities (Registered Homes / Hospitals)

The flowcharts on the following pages provide guidance to managing authorities about how to identify a potential Deprivation of Liberty and how to apply for authorisation when a person is being deprived of liberty.

The third flowchart explains the managing authority’s responsibilities following an application.

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3.2 Deprivation of Liberty Safeguards: Flowchart ADeciding if an authorisation may be needed

AND

AND

AND

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It is possible to minimise the restrictions to a level at which the person will not be deprived of their liberty

The person does appear to be deprived of their liberty AND

It is not considered to be in their best interests to reduce the restrictions further

The person Is over 18 years Has a brain/mental disorder (e.g. mental illness, acquired brain injury, learning disability) Lacks capacity to consent to the admission Is not subject to any powers of the Mental Health Act that would conflict with a DoLS authorisation Does not have any other valid decision-making authorities (advance decision, Lasting Power of Attorney,

Court Appointed Deputy) that would conflict with a DoLS authorisation

Immediately take any necessary action to reduce the restrictions so that the person is not deprived of their liberty

Ensure that any remaining restrictions are monitored closely and kept under review

An Application for DoLS authorisation MUST be made (see Flowchart B)

Measures are in place to restrict the person’s freedom of movement, for example. Close observation and supervision, 1:1 nursing Sedative medication Distraction/persuasion to control behaviour and freedom of movement Preventing them from leaving the unit or bringing them back if they try to leave Equipment intended to restrict freedom of movement e.g. bed rails, chairs (tip-back, deep-seated, with fixed

tables), lap straps, gloves, splints, bandaging, helmets Locked doors, coded keypads, ‘baffle’ handles Electronics devices – pressure mats, tagging devices Physical intervention techniques Refusing requests for discharge Restrictions on social activities or contacts with other people Restrictions on movement within the unit Restrictions on outings from the unit

Severity and impact of the restrictions is significant, for example: Restrictions are used for frequently and/or for prolonged periods of time Restrictions are severe/intense – impact significantly on the person’s freedom of movement Restrictions have a significant psychological impact on the person, e.g. person is objecting, distressed Relatives/carers object or are concerned that the individual is severely restricted

The restrictions are considered to be in the person’s best interests because: They are necessary to protect the person from harm They are a proportionate response to the likelihood and severity of the potential harm Consideration has been given to reducing or eliminating the restrictions

3.3 Deprivation of Liberty Safeguards: Flowchart BThe Application Process

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PREPARATION: Information required The person’s age (must be over 18 years) Why the authorisation is needed Any relevant medical information Any diagnosis of mental disorder and if the person is subject to the Mental Health Act Your assessment that the person lacks capacity to consent to the admission The person’s communication style/language What restrictions are being used, any less restrictive alternatives considered Why deprivation of liberty is required – harm likely if not deprived of liberty Relevant assessments and care plans Who there is to consult with – whether an IMCA will be required Whether there is an advance decision to refuse treatment, a Lasting Power of Attorney or Court Appointed

Deputy

IDENTIFY (AND IF POSSIBLE ALERT) THE SUPERVISORY BODY Directly from COP – alert Trafford DOLS Team

Unplanned situation: the person is already deprived of liberty

Planned Situation: application needed in advance of admission

Complete Form 1 (Authorisation) Provide copies to the relevant person and any

IMCA involved Take steps to help the person understand the

effect of the authorisation and their right to appeal (verbal and written information should be provided)

At the same time complete Form and submit to Supervisory Body together with any relevant assessments and care plans

Complete Form 1 Application for Authorisation and submit to Supervisory Body together with any relevant assessments and care plans

Inform the relevant person and any other relevant parties, including relatives, carers and any IMCA already involved (provide copies of DH leaflets if appropriate)

Facilitate the assessment process by providing assessors with prompt access to: The relevant person, who will need to be interviewed in private Relevant clinical records Staff involved in caring for the person

Formally notify Care Quality Commission of the application

Take appropriate action depending on the outcome of the application (see Flowchart C)

IF, in exceptional circumstances, an extension is required for an urgent authorisation, request this by submitting Form 2 to the supervisory body. If the person is in an acute hospital at this point a renewal/extension can be requested by phoning 0161 912 2036

3.4 Deprivation of Liberty Safeguards: Flowchart CManaging Authority’s Responsibilities Following an Application

Ending a DoLS AuthorisationWhen an existing DoLS Authorisation is coming to an end the Managing Authority must review whether it is still necessary. It is possible, at any stage, that things have changed and the person no longer needs such a restrictive environment. In this case the Managing Authority needs to request a Review to cease DoLS Authorisation (Form 9 – Standard Authorisation ceased).An extension/renewal for people in acute hospital wards can be requested by phoning 0161 921 2036.

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Standard Deprivation of Liberty Safeguards is granted

Authorisation NOT granted

Formally notify Care Quality Commission of the outcome of the application

Ensure Managing Authority meets its responsibilities when the authorisation is in place

Formally notify Care Quality Commission the outcome of the application

Urgently take any action necessary to ensure the person is not unlawfully deprived of their liberty

Complying with conditionsEnsuring any conditions to the authorisation are implemented – alert the supervisory body immediately if any conditions cannot be met

Supporting the relevant person and their representative Monitor whether the person’s representative complies with the requirement of the role Alert the Supervisory Body if the representative does not see the person regularly Ensure that the person and their representative are aware of their rights to request a review or

appeal to the Court of Protection

Requesting a ReviewIf there is change in the person’s circumstances relevant to the Deprivation of Liberty Safeguards, e.g. Arrangements are being made to DISCHARGE the

person The person no longer appears to meet one of the

qualifying criteria (e.g. they have regained capacity) One or more of the conditions attached to the

authorisation needs to be amendedYou must request a review: Complete Form 10 Request for a review of the Authorisation and submit to Supervisory Body

Complying with the outcome of a Review Ensure compliance with any

amended conditions If the authorisation is terminated,

make any arrangements necessary to ensure that the person is not unlawfully deprived of their liberty

Requesting further authorisationIf it is likely that deprivation of liberty will still be required when an authorisation comes to an end, a new application using Form 1 must be submitted to the Supervisory Body 28 days before the existing authorisation expires (see Flowchart B)

Suspending an authorisation (Form 7)This is likely to be a rare occurrence and will only be needed if a patient becomes sectioned under the Mental Health Act for a period of their stay

3.5 DoLS Procedures for The Supervisory Body

It is the role of the supervisory body to ensure a clear application pathway exists. On receipt of an application it is their statutory duty to commission two independent assessors (a DoLS Best Interests Assessor and a DoLS Mental Health Assessor) to complete six assessments within the given timescales. These assessments are:

1. Age assessment2. Capacity assessment3. Mental health assessment4. Eligibility assessment (should the Mental Health Act or MCA apply)5. No refusals assessment (Are there any legally valid objections?)6. Best interest assessment

Within Trafford, DoLS notifications and applications are received through IAT@ Trafford.gov.uk Applications are processed by the DoLS team on behalf of the supervisory body.

If the Best Interests Assessor concluded that the person was not in fact being, or going to be, deprived of liberty, they would not grant the DoLS and must inform the supervisory body by completing Form 6.

Where all assessments meet the criteria for an authorisation:In cases where the independent assessors conclude that the relevant person meets the criteria for an authorisation, the supervisory body must:

• Grant the authorisation in writing and include the purpose of the deprivation of liberty, the time period, any conditions attached and the reasons that each of the qualifying conditions is met.

• Consider attaching any appropriate restrictions / conditions to the authorisation, and reducing the time period of a standard authorisation but must not exceed the length of time recommended by the Best Interests Assessor.

• Send a copy of the authorisation to the Managing Authority, the relevant person, any IMCAinstructed and any other persons consulted by the Best Interests Assessor.

• Appoint a representative. If there is no one available among friends or family, then the Supervisory Body will appoint a person, who may be paid, to act as the representative for the duration of the authorisation.

• Consider a referral to the Court of Protection if any of the below apply • the intensity of restrictions• number of applications• accompanying safeguarding issues• any disagreement between professionals / family

Review of an authorisation:The Supervisory Body, IMCA, Relevant Person’s Representative, Relevant Person or Managing Authority can request a review of an authorisation at any time.

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Where one or more assessment is not met but the person is deprived of their liberty:Where the Best Interests Assessor comes to the conclusion that the best interests requirement isnot met, but it appears to the Best Interests Assessor that the relevant person is already being deprived of their liberty, the Best Interests Assessor must inform the Authorised Signatory for the supervisory body and explain in their assessment why they have reached that conclusion. The supervisory body must:

• Stop the assessment process immediately and inform anyone still engaged in carrying out an assessment that they are not required to complete it

• Inform the Managing Authority, the Relevant Person, any IMCA instructed and all persons consulted by the Best Interests Assessor of the decision and the reasons for it.

Should the supervisory body have continuing doubts about the matter, it should alert the Care Quality Commission (CQC)

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4. Recording The Code of Practice states that “where professionals are involved, it is a matter of good practice that a proper assessment of capacity is made and the findings of that assessment are recorded in the relevant professional records.” It is essential that all required documentation is recorded as directed by your agency and professional body recording policy and procedures

The record of an assessment of capacity should include:• Documentation of attempts to help the person make the decision themselves;• Evidence of how the person is able to/unable to understand the information relating to the

decision in question;• Whether the person is able to retain the information, and if their retention is limited,

whether they are able to hold the information long enough to make a decision;• How well the person is able to weigh the decision in the balance (weigh up the pros and

cons) in order to come to a decision;• Where communication is problematic, the ability of the person to communicate the decision.

Full recording of mental capacity will not be needed for all decisions and actions. For low level day to day decisions and caring actions, case note records can support professional’s decision making. The Code of Practice gives guidance when professionals should be involved and by implication, there is a need for a clearly documented assessment, where:

• A decision has consequences, (e.g. decision to move accommodation, decision to accept or decline support at home, decision whether to report a criminal or abusive act);

• There may be a dispute with the person, their family or the care team, as to the capacity of the individual;

• The person’s capacity may be subject to challenge;• There may be legal consequences of a finding of capacity (e.g. as a result of a claim for

personal injury);• The person is making decisions that put him or herself or others at risk or that result in

preventable suffering or damage.These examples are not exhaustive, and each circumstance needs to be judged on its merit, using professional judgment, and support from your line manager or the community team as appropriate. Where appropriate line managers can seek advice from the DoLS team.

4.1 Recording in care plans

It is good practice as part of a care plan to clarify where a person’s mental capacity is known to be impaired, and specific help is needed to help them make decisions. In addition, it is important to clarify where capacity is likely to be lacking, and whether this situation is chronic or fluctuating.

4.2 Recording in the case notes

All service user case notes should be recorded following the agency’s and professional body’s standards, policy, procedures and guidelines.

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5. Safeguarding People who may lack the capacity to make certain decisions may also be less able to protect themselves from abuse or exploitation and therefore be considered an adult at risk.

If you have any concerns that an adult at risk may be experiencing, or is at risk, of abuse, follow the Safeguarding Adults Policy and Procedures. https://www.trafforddirectory.co.uk/kb5/trafford/fsd/myway.page?adultchannel=0

By submitting an application in accordance with the DoLS, the relevant person would not usually meet the criteria for an Adult Safeguarding referral and whilst the managing authority co-operates with the process, then this would remain the case.

However, there are circumstances where the use of a safeguarding referral should be considered if:

• It is suspected that the managing authority has knowingly not referred a resident or patient in accordance with the DOLS, in order to further deprive them of their liberty;

• A managing authority refuses to co-operate with an assessor in order to facilitate the assessment process;

• A managing authority fails to adhere to the recommendations of the best interests assessment and the authorisation by the supervisory body.

In the event that a safeguarding referral is submitted during the DoLS process, the DoLS process may not be able to continue to decision until the safeguarding investigation has been concluded. DoLS can also run parallel but independent to the Safeguarding Procedure, if required.

5.1 Abuse by an Attorney or Deputy

If someone has concerns about the actions of an attorney acting under a registered Enduring Power of Attorney (EPA) or Lasting Power of Attorney (LPA), or a Deputy appointed by the Court of Protection, they should contact the Office of the Public Guardian (OPG). The OPG can investigate the actions of a Deputy or Attorney and can also refer concerns to other relevant agencies. When it makes a referral, the OPG will make sure that the relevant agency keeps it informed of the action it takes. The OPG can also make an application to the Court of Protection if it needs to take possible action against the attorney or deputy.

Whilst the OPG primarily investigates financial abuse, it is important to note that it also has a duty to investigate concerns about the actions of an attorney acting under a health and welfare Lasting Power of Attorney or a personal welfare deputy. The OPG can investigate concerns about an attorney acting under a registered Enduring or Lasting Power of Attorney, regardless of the adult’s capacity to make decisions.

Further information about the role and powers of the OPG and its policy in relation to AdultSafeguarding can be found in the document ‘Office of the Public Guardian – Safeguarding Policy, November 2015’ (link to doc at http://www.justice.gov.uk/downloads/protecting-the-vulnerable/mca/safeguarding-policy.pdf)

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6 The Legal Position of 16-18 year olds in relation to the Mental Capacity Act

The Mental Capacity Act applies to anyone over the age of 16.Decisions about a young person’s capacity and best interests can be made in the same ways as for an adult.

There may be occasions when a 16-17 year old, who would usually be presumed to be competent to make decisions, may lack or may become incapacitated. In these circumstances, under the Mental Capacity Act, professionals are advised to look at more detailed guidance on mental capacity and they may need to seek expert advice.

If legal proceedings concerning someone 16-17 are being heard in Court, the Court of Protection may refer the decision to the Family Courts, or the Family Courts may refer the decision to the Court of Protection: each decision will be considered individually.

6.1 When can decisions be made for 16-17 year olds who lack capacity?

In England and Wales, most of the Mental Capacity Act 2005 applies to 16 -17 year olds who lack capacity because of an impairment of, or a disturbance in the functioning of, the mind or brain. At the heart of the Act lies the principle that any decision or action taken must be in the best interests of the 16-17 year old who lacks capacity.

There are some provisions in the Act that do not apply to 16-17 year old, namely: They cannot make a Lasting Power of Attorney (LPA) They cannot make an advance decision to refuse medical treatment The Court of Protection cannot make a statutory will.

In Scotland, the Adults with Incapacity (Scotland) Act 2000 sets out the framework for regulating intervention in the affairs of adults (people over 16) who have impaired capacity. It allows people over the age of 16 who have capacity to appoint a welfare attorney to make health and personal welfare decisions once capacity is lost. The Court of Sessions may also appoint a deputy to make these decisions.

In Northern Ireland, the GMC advises that ‘treatment can be provided in the young person’s best interests if a parent cannot be contacted’, although doctors ‘should seek legal advice about applying for court approval for significant (other than emergency) interventions’

Evidence based decisions, including if the decision could result in significant harm to the young adult, and that safeguarding concerns have been considered, need to be recorded.

Where complexity or conflict of opinion is present, there should be evidence of discussions with line managers and if appropriate to the circumstances, the offer of a second opinion on the decision.

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6.2 Consent to Treatment

Young people over 16 years old are presumed to have capacity to consent to surgical, medical or dental treatment and to associated procedures, such as nursing care. (Family Law Reform Act 1969 ( http://www.legislation.gov.uk/ukpga/1969/46) )

Some procedures, such as organ donation, are not covered by this, but by a test of ‘Gillick competence’. This test is used with people under 16 and for people over 16 for procedures which may not be of benefit to the young person themselves; it is similar to the capacity test and assesses if the young person has the intelligence, maturity and understanding to comprehend what is proposed.

The person proposing any treatment or care needs to be clear about the young person’s capacity to make the decision. If the young person can’t make the decision because of an impairment of or disturbance in the functioning of the mind or brain then the assessment and process of MCA will apply.

In law, a young person over the age of 16 is presumed to have capacity to consent to treatment and their decision must be respected. If the young person makes a capacitated decision to refuse treatment this must also be respected – even if someone who has parental responsibility wishes to consent on their behalf. If the young person has capacity, the MCA does not apply and the Court of Protection cannot intervene. The Family Courts can make decisions in such situations.

If a young person does not have capacity to make a decision, the decision could be made following MCA processes or could be made by a person with parental responsibility. The method by which the decision is made will depend on whether the decision is in the ‘zone of parental control’ and who is exercising parental responsibility. Case records should evidence that risks have been considered and explored in all options.

Evidence based decisions, including if the decision could result in significant harm to the young adult, and that safeguarding concerns have been considered, need to be recorded.

Where complexity or conflict of opinion is present, there should be evidence of discussions with line managers and if appropriate to the circumstances, the offer of a second opinion on the decision.

6.3 Who has parental responsibility?

Someone who has parental responsibility for a young person may be asked to make decisions about their care or treatment if they lack capacity to make the decision for themselves. It is important to be clear who has parental responsibility as it not necessarily the young person’s parent.

• A mother automatically has parental responsibility for her child, unless the child is legally adopted by someone else.

• A father who is married to the mother at the time of the birth, or if the child is jointly adopted, automatically has parental responsibility. If the father and mother subsequently marry, the father can acquire parental responsibility if the birth is re-registered.

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• From 1 December 2003 an unmarried father who jointly registers the birth with the mother and is named on the child’s birth certificate automatically has parental responsibility.

• An unmarried father who is not on the child’s birth certificate, or an unmarried father who is on the birth certificate of a child born before 1 December 2003, can gain parental responsibility by way of a formal parental responsibility agreement between him and the mother or by Court Order.

• Step fathers can acquire parental responsibility if they make an agreement with the mother or by a Court Order.

• If the child is involved in care proceedings, parental responsibility can be assigned to the person they are living with. If the child is subject to a Residence Order, the person the child lives with acquires parental responsibility.

• If the child is subject to a Care Order or an Interim Care Order, the Director of Safeguarding and Professional Development at Trafford Council and Pennine Care has parental responsibility.

Parental responsibility lasts until the child is 18. If parents’ divorce and Orders do not stipulate differently, the father retains parental responsibility; the parent the child lives with does not have more powers than the other parent.

6.4 What is parental responsibility and the zone of parental control?

Parental responsibility means the: ’rights, duties, powers, responsibilities and authority which by law a parent has in relation to a child’. (Children Act 1989) ( http://www.legislation.gov.uk/ukpga/1989/41/contents)

The zone of parental control is a legal concept describing which decisions a parent should be able to take concerning their child’s welfare. There is no codified statement of which decisions come into the zone of parental control.

The Mental Health Act Code of Practice(http:webarchive.nationalarchives.gov.uk/+/www.dh.gov.uk/en/Healthcare/Mentalhealth/DH 4132161)

(36.10) gives two points that should be borne in mind when considering if a decision comes within the zone1. Is the decision one that a parent would be expected to make?2. Are there any indications that the parent might not act in the young person’s best interests?

You should also consider:• The nature and invasiveness of what is proposed• If the young person is resisting• Do the parents’ interests conflict with the young person’s best interests?

6.5 How to make decisions for young people who lack capacity

The general rule is that the person or people who have parental responsibility for the young person should make the decision (Code of practice 12.16) ( http://www.justice.gov.uk/protecting-the- vulnerable/mental-capacity-act)

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If the decision does not come within the zone of parental control, it will be necessary to use MCA procedures instead. For instance if the proposed treatment is particularly invasive or controversial, if the young person is resisting or if the interests of the parents conflict with the best interests of the young person.

For instance a young person who usually has capacity may lack capacity when drunk. A decision that they should not go out and engage in more risky behaviour would come within the zone of parental control and a parent, or someone with parental responsibility, should use this to make a decision about the young person going out or not. However, if the young person resists the parent’s decision this may move the decision out of the zone of parental control and MCA processes would be indicated. This would be a capacity assessment, best interest decision and using appropriate restraint, proportionate to the risks, if needed. In such a situation, decisions would be based on reasonable belief rather than formal assessment. (MCA and family and informal carers) ( http://www.legislation.gov.uk/ukpga/2005/part24)

The decision-maker will need to assess the young person’s capacity and best interests. Following the best interests checklist (MCA section 4) ( http://www.legislation.gov.uk/ukpga/2005/9/section/4) ) the decision-maker will consult people involved in the care and support of the young person which will include, but not be limited to, people who have parental responsibility.

If the young person is unbefriended – has no family or friends who could be consulted about the decision – a referral for the support of an Independent Mental Capacity Advocate may be necessary. A referral will need to be made if the decision concerns serious medical treatment or a change of accommodation.

The Court of Protection can make determinations about a young person’s capacity or a best interest decision. The court of protection should only be approached used as directed when following the DoLS procedure.

6.6 Information Sharing

Parents generally need to be provided with information about their child’s problems and treatment in order to adequately support and care for them. There is a need to evidence discussion with the child, and where appropriate their parent(s), about information sharing and confidentiality and the limits of confidentiality. The extent and nature of the discussion may vary according to the age of the young person and the nature of treatment as some treatments, for example Family Therapy, directly involve the parents, whereas others, such as medication or individual counselling, involve the child. Where information is shared with parents about the problems or treatment of a competent child, the child’s consent to share the information should be obtained and evidence recorded in the notes. The consent should be absolutely clear and should cover the specific detail of what will be shared, the reason the information is being shared, as well as any special aspects of the processing that may affect the individual. It should also be freely given, for example without undue influence from the parents.

Where a competent child refuses to allow information to be shared with their parent(s), there should be evidence that the risks of not sharing the information have been considered. Where it is thought to be in the child’s best interests to share information, there should be evidence of attempts to seek a compromise. It is sometimes possible to provided parent(s) with general information about the situation, treatment or condition as a compromise, rather than the specific details of the child’s case. Where it is the clinician’s opinion that it is necessary to share information in the best interests of the

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competent child, against their wishes, the Caldicott Guardian should be consulted and Best Interest Process followed.

7 MCA & DoLS Workforce Competency Framework

This competency framework provides a template to support the ongoing delivery of an MCA and DOLS Workforce Training and Development strategy, and to maintain a framework of multi-agency staff knowledge, skills and competence in practice in Trafford.

1. Unqualified social care and health care staff, and volunteers

Competence Suggested evidence

1.1 Understanding of what mental capacity is

• Show understanding that a person does not lack capacity to make decisions solely due to an illness, diagnosis, age or disability

• Recognise that a person may lack capacity to make one decision while having capacity to make others.

• Demonstrate knowledge of their organisation’s policies and procedures relevant to MCA

1.2 Recognising the need to assist a person to make their own decision

• Demonstrate ability to help people make their own decisions wherever possible

• Demonstrate ability to communicate with people at an appropriate level to help them in their decision-making

1.3 Understanding the process of assessing a person’s mental capacity in day-to- day situations (e.g. washing, dressing, eating)

• Show ability to recognise possible risks of making a particular decision and informing more senior member of staff as appropriate

• Show ability to recognise the need to refer to a more senior member of staff where more complex decisions are involved

1.4 Understanding the process of making a best interests determination in day-to-day situations

• Demonstrate the need to act on someone’s behalf when a person lacks capacity to make the decision themselves (day-to- day decisions)

• Show understanding of the need to continue to involve the person in the decision-making process even when they lack capacity to make the decision

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2. Qualified health and social care staff and managers

Competence Suggested evidence

2.1 Understanding the need to assist someone in making their own decision

• Demonstrate ability to recognise when an impairment may be impacting on someone’s ability to make a particular decision and implement appropriate support

• Demonstrate effective communication with the person to ensure they understand the information relevant to the decision in question

• Demonstrate ability to work with “unwise decisions” and ensure ongoing support to the person while protecting their autonomy

2.2 Ability to use the two-stage test of capacity

• Demonstrate ability to recognise – or seek advice about - impairments / disturbances in the mind or brain

• Demonstrate ability to assess an individual’s ability to understand, retain, use or weigh up, and communicate their decision

• Demonstrate ability to identify risks and benefits related to a decision, to clarify the person’s ability to weigh the relevant factors in the balance when coming to a decision

2.3 Understanding of the process of making best interests determinations / decisions

• Demonstrate ability to follow the best interests checklist• Demonstrate able to use a “balance sheet approach”

to determine best interests• Demonstrate ability to involve families and carers in best

interests decision-making and being clear about the limits of their powers.

• Demonstrate ability to analyse different views from a variety of people to come to a decision

• Demonstrate ability to explain the reasoning for coming to a decision where there are conflicting views

2.4 Understanding who else can make decisions

• Demonstrate ability to identify Lasting Power of Attorney, Deputy, Advance Decision to Refuse Treatment (ADRT), and how to test the validity of each.

2.5 Understanding the relevance of European Convention of Human Rights Article 8 “right to private and family life”

• Demonstrate ability to weigh competing interests tojustify ‘interference’ in a person's life.

• Recognising the need to balance a person’s wishes and feelings with other factors when considering the need to make interventions in a person’s life.

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2.6 Understanding the concept of restraint and restrictions within the MCA

• Demonstrate ability to identify lack of capacity and risk when considering the need for restraint and/ or restrictions.

• Demonstrate ability to analyse the likelihood and seriousness of risks in relation to a person lacking capacity.

• Demonstrate ability to understand the concept of proportionality where restraint and / or restrictions are involved.

2.7 Understanding the Deprivation of Liberty Safeguards (DoLS)

• Demonstrate ability to understand the concept of deprivation of liberty, and the continuum between restraint, restriction and deprivation of liberty.

• Demonstrate ability to advise hospital and care home staff of the legislation and their own statutory duties in relation to DoLS.

2.8 Understanding the role of an Independent Mental Capacity Advocate (IMCA)- ‘Standard’ IMCA- ‘DoLS’ IMCA:39A39C39DRelevant Person’sRepresentative: (RPR) (‘paid’ or unpaid))

• Demonstrate knowledge of the statutory eligibility criteria for instruction of an IMCA

• Demonstrate ability to consider whether a person will benefit from an IMCA where there are discretionary criteria (adult safeguarding, care reviews).

• Demonstrate ability to communicate effectively with IMCA to ensure the person is adequately supported during the decision-making process.

• Demonstrate ability to distinguish the roles of DoLS IMCA (39: A, C & D) and ‘RPR’ in the DoLS Assessment and Authorisation process.

• Demonstrate awareness of the RPR role, whether ‘paid’ or ‘unpaid’, for the person.

2.9 Maintaining accurate, complete and up-to-date records

• Demonstrate ability to record assessments of capacity and best interests within statutory requirements (CABIP tool).

• Demonstrate ability to critique case notes created by self and others.

2.10 Supervision and teaching • Demonstrate ability to teach a professional in training (e.g. student nurse, social worker) how capacity is assessed and supported in this setting.

• Demonstrate ability to supervise staff and/or students in mental capacity work to ensure effective practice.

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3. Lead and strategic managers in health and social care organisations

Competence Suggested evidence

3.1 Protecting the organisation from claims of negligence or malpractice

• Demonstrate ability to provide reports to the Safeguarding Board about the workings of the MCA and DoLS in the organisation.

3.2 Ensuring continuing staff competence

• Show evidence of MCA and DoLS coverage in the regular audit programme and work of the quality/performance teams.

• Ongoing delivery of a Workforce Training and Development strategy to support and maintain a framework of multi-agency staff MCA and DOLS knowledge, skills and competence in practice.

3.3 Supporting effective implementation of the MCA& DoLS in local communities of practice

• Show knowledge of transfer protocols between social and health care, acute care and mental health, mental health and primary care. Mutual accountability for shared patients/customers – i.e.: the ‘relevant person’ as identified in the MCA & DoLS legislation.

8. Research The Mental Capacity Act also sets out clear parameters for research

Research involving, or in relation to, a person lacking capacity may be lawfully carried out if an “appropriate body” (normally a Research Ethics Committee) agrees that the research is safe, relates to the person’s condition and cannot be done as effectively using people who have mental capacity. The research must produce a benefit to the person that outweighs any risk or burden. Alternatively, if it is to derive new scientific knowledge it must be of minimal risk to the person and be carried out with minimal intrusion or interference with their rights.

Carers or nominated third parties must be consulted and agree that the person would want to join an approved research project. If the person shows any signs of resistance or indicates in any way that he or she does not wish to take part, the person must be withdrawn from the project immediately.

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9. Information and Advice

Service Role Contact DetailsAccessTrafford

All referrals are receivedand processed by Access Trafford

0161 912 5199IAT@Trafford.go v.u k

DoLS team Execute some of the functions of theSupervisory body for example commissioning independent assessors. They also provide help and support for any persons who have queries in relation to the DoLS legislation.

0161 912 2036

dols@trafford.gov.uk

AdultSafeguardingIs Provided by all Adult Locality Teams in Trafford

Ensure that the Adult SafeguardingPolicies are appropriately and consistently implemented. Provide safeguarding advice and support to any professional.

0161 912 5199

IAT@Trafford.gov.uk

IMCA(Independent Mental C a p a c i t y Advocate).

IMCA is a new type of statutoryAdvocacy introduced by the MCA. The Act gives some people who lack capacity a right to receive support from an IMCA.

For people living in Trafford : Rethink IMCA ServicesWesley Enterprise CentreRoyce RoadHulmeM15 5BPPhone:Fax:For people living in other areas please contact their local IMCA service.

More information is available on: h t t p : // www. Trafford . g o v . u k https://www.trafforddirectory.co.uk/kb5/trafford/fsd/myway.page?adultchannel=0

Information about the role and powers of the OPG and its policy in relation to AdultSafeguarding can be found in the document ‘Office of the Public Guardian – Safeguarding Policy, November 2015’ (link to: http://www.justice.gov.uk/downloads/protecting-the-vulnerable/mca/safeguarding-policy.pdf)

ADASS The Mental Health Capacity Act - Deprivation of Liberty Safeguards – Guidance and Formshttps://www.adass.org.uk/media/4436/final-dols-guidance-2015.pdf

Code of Practice Chapter 12 - The legal position of 16-18 year olds.(http://www.justice.gov.uk/protecting-the-vulnerable/mental-capacity-act)

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Appendix 1

Trafford Capacity Assessment &Best Interests Pack

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Contents of the Pack

Capacity Assessment Guidance

Capacity Assessment Document

Generic Best Interest Decision Form

DNAR Best Interest Decision Form

Information, advice, guidance and support regarding Mental Capacity and Best Interest Decisions in Trafford

Trafford DoLS Team,Trafford Council, - 0161 912 2036 dols@trafford.go.uk

Ms. Gilli Painter, Named Professional for Safeguarding Adults, Greater Manchester West Mental Health NHS Foundation Trust (Trafford) gilli.painter@trafford.nhs.uk

Ms. Lesley Shaw, Lead Nurse for Vulnerable Adults, University Hospital South Manchester NHS Foundation Trust - 0161 291 2382 lesley.shaw@uhsm.nhs.uk

M. Corrine Power, Named Nurse for Vulnerable Adults, Central Manchester University Hospitals NHS Foundation Trust (Trafford) corrine.power@cmft.nhs.uk

Dr. Mark Jarvis,Executive Clinical Director, NHS Trafford mark.jarvis@nhs.net

Dr. George KissenMedical Director, NHS Trafford - 0161 873 6084,george.kissen@trafford.nhs.uk

Ms. Julie Ryder, Named Nurse for Vulnerable Adults, Central Manchester University Hospitals NHS Foundation Trust - 0161 276 1234 julie.ryder@cmft.nhs.uk

Mr. Phil SpilstedLead Nurse for Vulnerable Adults for Learning Disability Services in Trafford - 01244 397 643

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Capacity Assessment Guidance

The MCA sets out the five ‘statutory principles’ – these are the values that underpin the legal requirements in the Act and are founded in the Human Rights Act. These principles should be adhered to when undertaking any assessment of capacity.

The five statutory principles are:

1 A person must be assumed to have capacity unless it is established that they lack capacity.2 A person is not to be treated as unable to make a decision unless all practicable steps to help

him/her to do so have been taken without success.3 A person is not to be treated as unable to make a decision merely because he/she makes an

unwise decision.4 An act done or a decision made under this Act for or on behalf of a person who lacks

capacity must be done, or made, in his/her best interests.5 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.

The MCA also introduces a new criminal offence of ill treatment or neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to a fine and/or imprisonment for a term of up to five years. For further information and guidance please refer to the MCA Code of Practice.

Decisions not covered by the best interests principles - The following decisions cannot be made in a person’s best interests as they are covered by other legal processes and require the person to have capacity, and / or court proceedings, to address:• to vote,• to marry or divorce (including civil partnerships),• to consent to sexual relations,• to consent to fertility treatment,• to make a decision to place a child up for adoption.

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Assessing Capacity for the Level 1 Competency Framework

The process below can be completed when considering if a capacity assessment is required. The form on the next page can be completed by staff to record their decisions and evidenced based practice under section 1 on the competency framework.The process is designed to help you establish an individual’s decision-making capacity, and takes you through the following steps:

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STEP 1: Determine whether an assessment of capacity is required or appropriate at this point in time.

Part 1.Does the person have an impairment of, or a disturbance in the functioning of the mind or brain?

Please provide details Outcome

Yes

No

If you have answered NO to part 1 you should assume that the person has capacity to make the decision. Please proceed to the conclusion to record this outcome.

Part 2.Is the impairment temporary, fluctuating or permanent?

If the impairment is temporary or fluctuating can the decision be delayed until the individual’s decision making ability has improved?

Please provide details

If you have answered YES to part 1 and you are not able to delay the decision to allow for the recovery of capacity then you should proceed to Step 2 below.

STEP 2: Determine the time frame in which you need to undertake this assessment.

Please specify a date or time frame within which this decision needs to be made.*

*It is important to establish this as it informs you how long you have to gather the relevant information necessary for the person to be able to make a decision, as well as the requirement to maximise capacity where possible. The Mental Capacity Act Code of Practice (s2.7) states that the level of support depends on personal circumstances, the kind of decision that has to be made and the time available to make the

39

decision. If a decision can be delayed to allow for additional support then the appropriateness of doing this should be considered.

40

STEP 3: Planning and Preparation Stage*

1. Please provide detailsWhat information is required for the person to make an informed decision?

Is there a choice or are there alternatives?

2. Please provide detailsHow do you plan to present the information to the person (e.g. verbal, written, diaries, visual etc.?)

How are you going to manage any sensory or cognitive difficulties that may be present?

3. Please provide detailsAre there particular times of the day when the person understands or concentration is better?

Are there particular locations where the person may feel more at ease?

4. Please provide detailsWho can help at the preparation stage e.g. gathering relevant information relating to the decision?

Can anyone assist to help the person make a decision or express their view (e.g. advocate, carer, and interpreter)?

*In order for an accurate assessment to be undertaken, it is important that the individual is presented with adequate information about the decision, including choices and alternatives, in a way that is understandable, and in an environment that maximises understanding and communication. This section helps you to think about how to do this before meeting with the person.

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STEP 4: The 4-part statutory Mental Capacity Test*

1.Does the person have an understanding of the relevant information relating to the decision? This includes why they have to make the decision, options available, consequences of deciding one way or another or making no decision at all?

Please provide evidence supporting the outcome,including person’s responses and quotations where appropriate.

Outcome

Yes

No

2.Is the person able to holdthe information in their mind long enough to use it to make an effective decision?

Please provide evidence supporting the outcome,including person’s responses and quotations whereappropriate.

Outcome

Yes

No

3.Is the person able to weigh up the information anduse it to arrive at adecision?

Please provide evidence supporting the outcome,including person’s responses and quotations where appropriate.

Outcome

Yes

No

4.Can the person communicate his / her decision (e.g. talking, sign language, other form of communication)?

Please provide evidence supporting the outcome,including person’s responses and quotations where appropriate.

Outcome

Yes

No

*The statutory test from the Mental Capacity Act (2005) is designed to establish whether the impairment or disturbance is sufficient enough that the individual lacks capacity to make that particular decision at the time it needs to be made. All four parts must be assessed. Guidance on addressing these areas can be found in the MCA 2005 Code of Practice s4.14 to s4.25.

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STEP 5: Take into account additional factors beyond the skills of the individual

Are there additional factors beyond the cognitive and communication skills of the individual which you believe are affecting the person’s ability to make a free and balanced decision? This may include external influences such as coercion or threats from others.Please provide details Has this resulted in

your opinion in impairment in the person’s capacity to make this decision?

Yes

No

STEP 6: Conclusion*

Having taken ‘reasonable’ steps to establish capacity, I consider on the balance of probabilities, that the person DOES have capacity to make this decision

Having taken ‘reasonable’ steps to establish capacity, I consider on the balance of probabilities, that the person DOES NOT have capacity to make this decision

* The MCA 2005 Code of Practice (s 4.10) refers to the level of proof required for claiming that a person lacks capacity. An assessor must be able to show, “o n t h e b ala n ce o f p r o b a b ilit i es , that the individual lacks capacity to make a particular decision, at the time it needs to be made (section 2(4)). This means being able to show that it is more likely than not that the person lacks capacity to make the decision in question.”

Signature of person/s

assessing:

Post Title of person/s

assessing: Date:

If the person has been assessed as lacking capacity and the decision is not to be deferred then it will be necessary to make a Best Interests Decision on behalf of that individual.

If the decision is complex i.e. 2 + on the competency framework please ensure you are a suitable qualified and experienced practitioners to be able complete this and proceed to Trafford’s Capacity Assessment form on page 40

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Capacity Assessment Form InformationWhen NOT to use this form:

Do not use this form for small decisions that affect a person’s daily routine, for example: what the person wears; how they use their weekly benefits to buy necessities; when they take their meals. if the service provision (care package) on discharge from hospital is the same as when the person was

admitted to hospital a ‘capacity assessment’ will not need to be carried out.If you can’t support the person to take their own decisions in these routine areas and you need to decide things for them, you should note what you have done and why in the nursing care plan, support plan, social care plan or equivalent.

Do not use this form when…there is someone empowered to make the decision, for example an attorney (appointed by the person when they had capacity) or a deputy appointed by the Court of Protection. Check! What areas is the attorney or the person’s deputy empowered to make decisions about? 1) Health & Welfare only, 2) Property & Finances only or 3) Health & Welfare AND Property & Finances. This is important to know and to check out. Whenever possible you will want to see copies of documents or orders. Remember, you may still need to use this form to determine that a person lacks capacity to make specific decisions which will enable Enduring Powers for Finances or Lasting Powers for Health & Well Being to begin.

For example, if there is a serious medical decision to be made, but the deputy or attorney is only empowered to act on the person’s behalf for finances and property. In that circumstance an assessment of capacity would still be required as this is a health and welfare decision.

When to use this form:

Use this form when key decisions and actions are taken on a person’s behalf because they do not have the capacity to decide for themselves. ‘Key decisions’ means significant decisions that go beyond a person’s daily routine or way of life. For example, decisions about:

minor clinical treatment, dentistry, ophthalmics or surgery, even if the decision may be not to treat the person a capacity assessment and best interest decision IS STILL REQUIRED.

the use of person’s money for more than their usual necessities obtaining or disposing of possessions of significant value spending short periods away from their home limiting activities (like smoking or drinking) that the person would normally choose to do bringing new people into the person’s life (like an advocate or volunteer).

Also use this form for big, life-changing decisions, for example:

Moving to a different home or living somewhere else Having major clinical treatment, dentistry or surgery, even if the decision may be not to treat the

person capacity assessment and best interest decision IS STILL REQUIRED. Disposing of significant assets. Preventing someone from leaving a hospital or care home who needs treatment Do Not Attempt Resuscitation (DNAR) Decisions

These decisions will usually involve a wider range of people in the decision-making process, sometimes at a Best Interest Meeting. This form should then be used in conjunction with the Best Interest Decision document or the DNAR Best Interest Decision Document

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All sections within the form will expand automatically as you type – all forms must be typed.DO NOT handwrite the form, there is insufficient room to add the information needed.

Capacity Assessment FormEmbedding the philosophy of “Make no decision about me without me” into practice

Section 1. Information about the Adult:Name of adult: NHS Number:

Date of Birth: Sex: Female Male

Address: Post Code:

Mobile Number:      

Ethnicity: First Language:      

GP details, including address and contact number:

Section 2. Communication & reasonable adjustmentAre there any communication difficulties? Yes No If yes, tell us about them here:      

Does the adult at risk require an interpreter? Yes No If yes, tell us about this here:      Does the adult require a Speech and Language Therapist? Yes No If yes, tell us about this here:      

Does the adult at risk require any other reasonable adjustment or support to communicate? Yes No If yes, tell us about this here:

Section 3. Legal Powers of others to act on behalf of the adult:If you answer yes to any of the questions 3a – 3f, you must ask to see original documents to check their validity. If the documents aren't available, telephone the Court of Protection to check. If the decision is urgent, there is no need to wait to see the documents – but the person’s representative must be made aware that documents will need to be verified after the event. Make the person’s representative aware that providing misleading information, or misusing legal powers, may result in arrest and prosecution.

3a) Does the person have an old Enduring Power of Attorney? (this will only become an effective only after the person has been assessed as lacking capacity to make decisions about their property or finances)

Yes No Don’t know

If yes, tell us about the person here: Name:      

Relationship:       Contact details:      

3b) Does the person have a new Lasting Power of Attorney for Finances/Property? (can be activated before loss of capacity)

Yes No Don’t know

If yes, tell us about the person here: Name:      

Relationship:       Contact details:      

3c) Does the person have a new Lasting Power of Attorney for Health & Welfare? (effective only after the person has been assessed as lacking capacity to make specific decisions about health and/or welfare)

Yes No Don’t know

If yes, tell us about the person here: Name:      

Relationship:       Contact details:      

3d) Does the person have a legal Advance Decision to refuse medical treatment? (Explicit, witnessed, dated and signed)

Yes No Don’t know

If yes, is a copy available? Yes No (a copy will need to be seen)

3e) Does the person have a Court Appointed Deputy?

Yes No Don’t know

If yes, tell us about the person here: Name:      

Relationship:       Contact details:      

3f) Is the person subject to an existing Guardianship Order?

Yes No Don’t know

If yes, tell us about the person here: Name:      

Relationship:       Contact details:      

Section 4. Tell us about the type of decision, and the specific decision to be made. You can only ask the person to make one decision at a time. TICK ONLY ONE BOX.

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Treatment Decision

e.g. Clinical/Medical/Surgical Treatment, Medication associated decisions, Nursing Treatment, Therapy treatments, Podiatry, Dentistry...

Example: Susan has been asked to decide if she will have an ingrowing toenail removed.

Tell us about the specific decision you are asking the person to make:      

Care Decision

e.g. Nursing Care, Care delivered by Support Workers, Home Care, Day Care, Care delivered by family members or unpaid carers... You would assess for a care decision where someone was consistently refusing care to their detriment which my lead to allegations of harm or constitute neglect.

Example: Susan has been asked to decide if she will allow the care assistants to help her change position regularly to prevent pressure area breakdown

Tell us about the specific decision you are asking the person to make:      

Accommodation Decision

e.g. Deciding to go into a Care Home, Moving from one CareHome to another, Accepting or relinquishing a tenancy...

Example Susan wants to accept a tenancy agreement to be able to live in alternative accommodation.

Tell us about the specific decision you are asking the person to make:      

Property or Finance Decision

e.g. Gifting money, selling property, selling shares orrealising other assets, making large withdrawals of cash...

Example: Susan has said she wishes to give her friend ten thousand pounds from her inheritance.

Tell us about the specific decision you are asking the person to make:      

Risk/Danger Decision

e.g. Wanting to go outdoors without support, travelling onpublic transport from one city to another, taking a flight...

Example: Susan wishes to go shopping to the Trafford Centre alone

Tell us about the specific decision you are asking the person to make:      

Adult Safeguarding Decision

e.g. Deciding if an investigation should take place after adisclosure or identification of safeguarding concerns...

Example: Susan has disclosed she is being financially abused by another resident in her street. Her decision is if she wants this investigated under the adult safeguarding procedures.

Tell us about the specific decision you are asking the person to make:      

Legal Decision

e.g. Making a Will...

Example: Susan has decided she wishes to make a will

Tell us about the specific decision you are asking the person to make:      

Other decision not listed Tell us about the specific decision you are asking the person to make:      

Section 5. Independent Mental Capacity Advocates (IMCA)Does the person require an IMCA Yes No

If yes, tell us about this here:      

Date and time IMCA requested Date:       Time:      

You must complete ALL of sections 6, 7, 8,9,10 and 10aPlease record the discussion that took place during the assessment in the

next section.

Section 6. Providing and understanding informationHave you provided the person with information about the decision, in a way that helps them to understand and in formats that are accessible to them?

This could be verbal information, written information,

Yes, I have provided the person with information in formats accessible to them

Tell us about the information provided here:      

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easy read or pictorial information, dvd, mp4 file or by accessing web pages.

It is for you to agree with the person how much information they would like and in what format.

To continue with the assessment you must provide the person with information about the decision in formats that are accessible to them. Please provide the person with information.

Was the person able to understand the information relevant to the decision provided?

Yes

Tell us how you were able to determine this here:      

No, the person was not able to understand the information

Please tell us why here:      

Section 7. Retaining the information

Has the person been able to retain the information in their mind long enough to make a decision?

The Mental Capacity Act does not say how long “long enough” is. This a judgement decision for you as the assessor.

Yes

Tell us how you were able to determine this here:      

No, the person was not able to retain the information for long enough to be able to make a decision.

Please tell us why here:      

Section 8. Weighing the information

Has the person used or weighed the information as part of the decision making process?

The person will need to be able demonstrate to you that they understand the pros and cons of the decision being made.

Yes

Tell us how you were able to determine this here:      

No, the person was not able to weigh the information as part of the decision making process.

Please tell us why here:      

Section 9. Communicating their decision

Has the person been able to communicate their decision to you in?

This point only applies if the person has not been unable to communicate their decision to you in any way.

Yes

Tell us how you were able to determine this here:      

No, the person was not able to communicate their decision to me

Please tell us why here:      

Section 10. Does the person have a disturbance in the function of the mind or brain?e.g. the person has Dementia, a Learning Disability, Confusion secondary to infection, the person is intoxicated, the person has been using illicit substances - you don't need a diagnosis here, it is enough to say the person is presenting as confused.

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This is your space to say why you believe there is reason to doubt the persons "presumed capacity".

No, the person does not have an impairment or disturbance in the function of their mind or brain

You have ticked No, and therefore must stop the assessment. In order to proceed the person must have an impairment or disturbance of their mind or brain.

Yes, the person does have an impairment or disturbance in the function of their mind or brain Please tell us what the impairment or disturbance is here:      

Section 10a. Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?The person CAN make the specific decision even though there is an impairment or disturbance in the function of their mind or brain The person CAN NOT make the specific decision due to the impairment or disturbance in the function of their mind or brain

Section 11. In your opinion, is the impairment or disturbance permanent or temporary? an example being drunk is temporary, Alzheimer’s disease is permanent, a Urinary Tract Infection is temporary, Acquired Brain Injury could be permanent.

Temporary

You have clicked temporary, can the decision wait untilthe impairment or disturbance resolves?

Yes - then stop the assessment and wait.

No - tell us below why the decision can't wait

     

PermanentPlease tell us why below:

     

You have now concluded your assessment and will need to make a decision about whether the person can make the specific decision.

Remember, you are only being asked to have reasonable grounds for believing that what you are deciding if the person does, or does not have the capacity, at this material time, to make the decision.

Section 12. Outcome of this Mental Capacity AssessmentThe person lacks capacity I have completed my assessment. I confirm that I have assessed the person named in this form and determined that they lack capacity relating to the specific decision named in section four of this form.

In accordance with the requirements of the Mental Capacity Act, 2005 I will now co-ordinate the Best Interest Process, recording my actions on the generic Best Interest Decision Form or the specific Do Not Attempt Resuscitation (DNAR) Best Interest Decision Form.

The person does not lack capacity I have completed my assessment. I have determined that the person named in this form has the mental capacity to

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make their own decision relating to the specific decision named in section four of this form.

The person’s decision will now be accepted as valid in accordance with the Mental Capacity Act, 2005.

Section 13. Details of the person completing form and reaching a decisionName: Job title:

Based at e-mail:

Base Telephone Mobile number

Section 13a. Date assessment commenced and completedDate commenced Date completed

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Generic Best Interests Form

Best Interest Decision FormEmbedding the philosophy of “Make no decision about me without me” into practice

Section 1. Information about the Adult:Name of adult: NHS Number:

Date of Birth: Sex: Female Male

Address: Post Code:

50

Tel.no: Mobile Number:      

Ethnicity: First Language:      

GP details, including address and contact number:

Who is the person’s nominated representative? Name:       Name:      

Has the person’s representative been contacted? Yes NoAre they willing to engage in the decision making process Yes No

Section 2. What is the decision to be made in the person’s best interest?Please tell us the specific decision here:      

Section 2a. Regaining capacity

Is it likely that the person will regain capacity?

Yes No

If you have answered yes to this question, can the decision wait until the person regains capacity? If yes, then wait!

If not then please tell us why in the box below,then continue with the process:

     

Section 2b. Least Restrictive Option

Is this the least restrictive option for the person?

Yes

If this is the least restrictive option, please tell us why below:

     

No

If it is not the least restrictive option, please tell us why below:

     

Section 3. Independent Mental Capacity Advocates (IMCA)If the person is unbefriended, meaning they have no nominated representative and there is nobody willing to act as such or the nominated representative does not want to be part of the decision making process (but is not objecting to it) or the person’s nominated representative is alleged to have harmed, exploited or abused the person you should appoint an IMCA.

IMCA Referral forms can be found here

Does the person require an IMCA Yes No

If yes, tell us why here:      

Date and time IMCA requested Date:       Time:      

Section 4. Tell us here about other people consulted as part of this decision making process – not every decision requires a meeting!The people listed below: where consulted as part of a discussion Attended a best interest meeting

See appendix 1 for a balance sheet tool

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Person 1:Role/Representing:

Contact number

e-mail

Consulted Invited Attended Apologies

Person 2 Role/Representing: Contact number

e-mail      

Consulted Invited Attended Apologies

Person 3.       Role/Representing:       Contact number      

e-mail      

Consulted Invited Attended Apologies

Person 4       Role/Representing:       Contact number      

e-mail      

Consulted Invited Attended Apologies

Person 5.       Role/Representing:       Contact number      

e-mail      

Consulted Invited Attended Apologies

Person 6.       Role/Representing:       Contact number      

e-mail      

Consulted Invited Attended Apologies

Person 7.       Role/Representing:       Contact number      

e-mail      

Consulted Invited Attended Apologies

Person 8.       Role/Representing:       Contact number      

e-mail      

Consulted Invited Attended Apologies

Person 9.       Role/Representing:       Contact number      

e-mail      

Consulted Invited Attended Apologies

Person 10.       Role/Representing:       Contact number      

e-mail      

Consulted Invited Attended Apologies

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Section 5.Question 1What is the justification for the proposed care, treatment, decision or action?      

Question 2Are there any risks relating to proposed care, treatment or decision?      

Question 3Are there any risks related to not carrying out the proposed care, treatment or decision?      

Question 4Are the persons past or present wishes/feelings regarding the treatment or decision known?      

Question 5Are there any beliefs and or values that would be likely to influence the decision, if he/she had the capacity?

     

Question 6What are the views of the other, relevant people in the person’s life?      

Question 7

Are there any disputes between any party about what is in the person’s best interests?

No, proceed with Best Interest Decision

Yes, a decision will need to be made by the Best Interest Assessor (the person completing this form) whether the decision can be delayed or whether action needs to be taken at once, key considerations are relief of pain, protection from harm/abuse or exploitation and the preservation of life.

Please tell us here the nature of the dispute:      

Dispute resolution should take the following forms:

Local dispute resolution meeting chaired by the local Designated Nurse for Safeguarding & Vulnerable Adults or a Named Lead Safeguarding Professional.

Where local dispute resolution fails, the matter can be referred to the Court of Protection for a judgement.

NB: The party that refers to the Court of Protection are usually liable for the costs of the case.

Section 6. Outcome of Best Interest discussion/meetingPlease tell us the outcome of your discussions here and reasonable beliefs with regard to Best Interests:

Yes No

Where the Court of Protection is not involved professionals, carers, relatives and others can only be expected to have reasonable grounds for believing that what they are doing, or deciding, is in the best interests of the person concerned. They must be able to demonstrate objective reasons as to why they believe they are acting in the person's best interests and they must have considered all relevant circumstances.

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Section 7. DeclarationI, the undersigned, believe this to be a fair representation of the discussions that took place.Those consulted agree that we have reasonable grounds for believing that what we are doing, or deciding, is in the best interests of the person concerned at this point in time.

Name of person completing this document:      

Job title of person completing this document      

Contact details of person completing this document      

Date document completed      

Balance Sheet Tool

The balance sheet tool should be used where there are two or more available options, the basic structure would be:

BENEFITS OF A BENEFITS OF B

PLUS BURDENS OF B PLUS BURDENS OF A

Whichever side of the balance is in significant credit is best. Note, however, that you are not looking at which list has the most factors. Each factor will have a different weight. Hence you could use different fonts in the balance sheet to identify the different weight attached to the considerations. For example ‘this font’ indicates equal weight, ‘italics’ indicates less than equal weight, ‘bold’ indicates more than equal weight, and ‘bold and underlined’ indicates particularly weighty considerations. Every case is different and will involve different considerations below is an example. Please see the example on the next page. Example

An 80 year old female with a diagnosis of dementia, physically well, very active and mobile but without mental capacity to make care, treatment, risk or financial decisions or to litigate. She was constantly asking to go home and had tried to leave the care home. The balance sheet approach can be used in this complex case with the following outcomes:

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BENEFITS OF OWN HOME (A) BENEFITS OF CARE HOME (B)

1. Continues to remain in a familiar place.

2. She does not feel unsafe.3. She wants to be independent.4. She wonders why she is in a hotel

and not at home.5. More family contact and

maintaining community contacts.

6. Increased care package.7. This is where she is happiest.

1. Regular meals/hydration.2. Prompting with medication.3. Prompting with personal

care/hygiene.4. Pressure/skin area

support/treatment.5. Physical safety improved.6. Staff available 24/7 to deal with

crisis.7. On-going reassurance for her

anxieties.8. Improved dignity.9. Release strain on family

members.10.Anti-depressants and anti-

psychotics can be administered.11.She enjoys the company of

others.12.Care and support may slow her

decline.13.Less need for her to contact

emergency services.14.Reduced possibility of

exploitation/cold callers.

PLUS BURDENS OF CARE HOME (B) PLUS BURDENS OF OWN HOME (A)

8. Likely to be affected by not being in own home.

9. Loss of independence. 10. Inevitable short term

anger/distress.11.Stronger possibility of depression.12.She may just give up.13.Problems with contact and

community activities.

15.Not eating or drinking enough.16. Insufficient/irregular medication.17.Deteriorating personal hygiene.18.Deteriorating pressure areas,19.Risks of wandering/falls.20. Increased psychological distress.21.Community/family support has

failed.

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Guidance for Responsible Clinicians and Do Not Attempt Resuscitation Best Interest Decision Form

This form must only be used in conjunction with the Trafford MentalCapacity Assessment Form

This document has been produced to support and record decision making in DNAR decisions, where it has been determined that an adult lacks capacity to make such a decision at the material time the decision is required. This form is intended to replace the generic best interest decision form and is to be used only when DNAR decisions are required.

Responsibility for making a DNAR decision

Responsibility for a DNAR decision rests with the most senior healthcare professional responsible for the patients care, defined in this document as the Responsible Clinician.

When a DNAR decision is made it should be recorded clearly by the Responsible Clinician,together with the reasons for it and the names and designation of those involved in the discussionand decision. If no discussion takes place either with the patient or with those close to them, thereasons for this should be recorded in the patient’s record.

Mental Capacity Act and professional considerations

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In line with the Mental Capacity Act DNAR decisions cannot be made about a person based onlyon their condition, behaviour, age or appearance (including learning disability or mental ill health). This also means that whilst people's quality of life might form part of the decision making process, it is important that decisions are made based on the person's own perception (or those who know the person well) of the quality of their life and that judgements are not made about what constitutes quality of life based on the decision maker's own views.

When assessing whether attempting CPR may benefit the patient, the Responsible Clinician must not be unduly influenced by any of their own or others pre-existing (negative or positive) views about living with a particular condition or disability. The key issue to consider is not the Responsible Clinician’s view of the patient’s disability or level of recovery that can reasonably be expected following CPR, but an objective assessment of what is in the best interests of the patient, taking account of all relevant factors, particularly the patient’s own views.

Reviewing a DNAR decision

DNAR decisions must be reviewed by the Responsible Clinician and must always occur when there are changes in the person’s condition or their wishes. NHS providers and Contractors may put in place further safeguards within local policies with respect to how often the order is reviewed. When a DNAR order is put in place on admission, the BMA, Resuscitation Council and RCN Guidance recommends that this is reviewed at the earliest opportunity

Complete all sections of this form with as much information as you are able.

All sections within the form will expand automatically as you type – all forms must be typed.

DO NOT handwrite the form, there is insufficient room to add the information needed.

Please be aware: You must only complete this form where you have already completed a mental capacity assessment and the person has been found unable to make a decision at that time regarding future attempts to resuscitate them. This form will replace the standard Best Interest Decision Form and must only be used when considering DNAR, all other treatment decisions must be made using standard documentation.

Points to highlight within the care record:

The physical, emotional and psychological impact on the person Expressed preferences of the person about CPR and or a decision not to resuscitate Views of their family or friends but also their perception of what decision the person would have made if they could The least restrictive option Relevant legal or medical guidance

Where the Court of Protection is not involved professionals, carers, relatives and others can only be expected to have reasonable grounds for believing that what they are doing, or deciding, is in the best interests of the person concerned. They must be able to demonstrate objective reasons as to why they believe they are acting in the person's best interests and they must have considered all relevant circumstances.

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Do Not Attempt Resuscitation Best Interest Decision Formto be used only in conjunction with the Trafford Capacity Assessment Form

The Mental Capacity Act 2005 Code of Practice (5.31) states that, “All reasonable steps which are in the person’s best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life sustaining treatment, even if this may result in the patient’s death.”

Section 1. Information about the Adult:Name of adult:       NHS Number:

Date of Birth:       Sex: Female Male

Address:       Post Code:      

Tel.no:       Mobile Number:      

Ethnicity:       First Language:      

Are there any communication difficulties? Yes No If yes, tell us about them here:      

Does the adult at risk require an interpreter? Yes No If yes, tell us about this here:      Does the adult at risk require any other reasonable adjustment or support to communicate? Yes No If yes, tell us about this here:      

GP details, including address and contact number:      Tell us about any existing physical health difficulties here:      

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Does the adult at risk have an Advance Decision to refuse treatment in place?

Yes No Not known

Who is the person’s nominated representative? Name:       Name:      

Has the person’s representative been contacted? Yes No Date:       Time:       By Whom?      

Are they willing to engage in the decision making process? Yes No

Section 2. Independent Mental Capacity Advocates (IMCA)If the person is unbefriended, meaning they have no nominated representative and there is nobody willing to act as such or the nominated representative does not want to be part of the decision making process (but is not objecting to it) or the person’s nominated representative is alleged to have harmed, exploited or abused the person you should appoint an IMCA.

IMCA Referral forms can be found here

Does the person require an IMCA Yes No

If yes, tell us about this here:      

Date and time IMCA requested Date:       Time:       By Whom?      

Section 3. Tell us here about the Responsible Clinician

Who is the Responsible Clinician (this is the most senior supervising health professional)

Name:       Job title:       Contact Number:      

e-mail address:       Base:      

Section 4. Tell us here about other people consulted as part of this decision making processThe people listed below: where consulted as part of a discussion Attended a best interest meeting

Person 1:       Role/Representing:       Contact number      

e-mail Consulted Invited Attended Apologies

Person 2       Role/Representing:       Contact number      

e-mail Consulted Invited Attended Apologies

Person 3.       Role/Representing:       Contact number      

e-mail Consulted Invited Attended Apologies

Person 4       Role/Representing:       Contact number      

e-mail Consulted Invited Attended Apologies

Person 5.       Role/Representing:       Contact number      

e-mail Consulted Invited Attended Apologies

Person 6.       Role/Representing:       Contact number      

e-mail Consulted Invited Attended Apologies

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Person 7.       Role/Representing:       Contact number      

e-mail Consulted Invited Attended Apologies

Person 8.       Role/Representing:       Contact number      

e-mail Consulted Invited Attended Apologies

Person 9.       Role/Representing:       Contact number      

e-mail Consulted Invited Attended Apologies

Person 10.       Role/Representing:       Contact number      

e-mail Consulted Invited Attended Apologies

Section 5. Questions for the Responsible Clinician

Why has a Do Not Attempt Resuscitation (DNAR) order been put in place?

     

What risk and/or burdens will the person face if Cardio-pulmonary resuscitation (CPR) is performed?

     

What is the chance of CPR revival for the person if they have a cardio respiratory arrest?

     

With respect to any risks or burdens from CPR on the person how will this affect their daily life including any psychological, emotional and physical factors that need to be considered?

     

If the person would have increased needs if CPR were performed could these be looked after in their current environment and/or how would the person react to a change in needs?

     

Are there known illnesses or medical problems that will impact on the outcome of a decision to perform CPR?      

What is the overall condition of the person’s health and what effect will performing CPR have on this i.e. is it likely the person will have more physical health or care needs?

     

Has the person’s faith, beliefs or culture been considered in terms of levels of medical intervention and to what level the person would want these to be

     

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considered?

When will the DNAR order be reviewed and by whom?      

Section 6. Questions for the person’s representativeHas the person expressed their preference, wishes, views or feelings either in the past or now about CPR?

Yes No

If yes, tell us about this here:      

Has the person expressed a preference in the past or now about the levels ofmedical intervention?

Yes No

If yes, tell us about this here:      

Does the person have any concept or understanding of death?

Yes No

If yes, tell us about this here:      

Does the person practice any religion or does their culture stipulate any specific process in terms of how they should be cared for before and/or after death?

Yes No

If yes, tell us about this here:      

Section 7. Is there any dispute regarding the best interest decision?

Are there any disputes between any party about what is in the persons best interests?

No, proceed with Best Interest Decision

Yes, a decision will need to be made by the Best Interest Assessor (the person completing this form) whether the decision can be delayed or whether action needs to be taken at once, key considerations are relief of pain, protection from harm/abuse or exploitation and the preservation of life .

Please tell us here the nature of the dispute:      

Dispute resolution should take the following forms:

Local dispute resolution meeting chaired by the local Designated Nurse for Safeguarding & Vulnerable Adults or a Named Lead Safeguarding Professional.

Where local dispute resolution fails, the matter can be referred to the Court of Protection for a judgement.

NB: The party that refers to the Court of Protection are liable for the costs of the case.

I the undersigned, am the Responsible Clinician and believe this to be a fair representation of the discussions that took place.

Those that I have consulted agree that we have reasonable grounds for believing that what we are deciding, is in the best interests of the person concerned at this point in time.

This decision will be subject to regular review, which will be defined and recorded in the persons care record.

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Type your name here      

Sign your name here (if printed copy)      

Job title:      

Date and time completed: Date:       Time:      

Appendix 2Definition of terms

Capacity:

Capacity is the ability to make a specific decision at the time the decision needs to be made. Abilityto make a decision is informed by, for example, a person’s ability to understand the decision and why it needs to be made. See the Mental Capacity Act Code of Practice for further information. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/497253/Mental-capacity-act-code-of-practice.pdf

The Court of Protection:The Court of Protection makes decisions for people who are unable to do so for themselves (thosewho lack capacity)? It can also appoint someone (called a Deputy) to act for people who are unable to make their own decisions. These decisions are for issues involving the person’s property, financial affairs, health and personal welfare.

Best Interests:Section 4 of the Mental Capacity Act provides a statutory checklist of factors that decision-makers must work through in deciding what is in a person’s best interests. This is laid out in Trafford’s Best Interests tool on page 50

Acts in connection with Care or Treatment:Section 5 clarifies that, where a person is providing care or treatment for someone who lackscapacity, the person can provide the care without incurring legal liability. The key will be proper assessment of capacity and best interests. This will cover actions that would otherwise result in a civil wrong or crime if someone has to interfere with the person’s body or property in the ordinary course of caring for example, by giving an injection or by using the person’s money to buy items for them.

Restrictions, Restraint and Deprivation of Liberty:

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Section 6 of the MCA defines restraint as the use or threat of force where an incapacitated personresists, and any restriction of liberty or movement whether or not the person resists. Restraint is only permitted if the person using it reasonably believes it is necessary to prevent harm to the incapacitated person or others, and if the restraint used is proportionate to the likelihood and seriousness of the harm.

There is no single definition of a deprivation of liberty. The starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors such as the type, duration, effect, and the manner of implementation of the restriction and / or restraint measures in question.

There is a scale which moves from no restriction, through varying degrees of restriction, to deprivation of liberty; where an individual is on that scale may change over time. The Code of Practice gives practitioners a full explanation, and examples of, restriction and deprivation and when it may be appropriate to use either one.

Advance Decisions to Refuse Treatment:Adults with capacity may make a decision in advance to refuse treatment if they should lose capacity in the future. An advance decision will have no application to any treatment which a doctor considers necessary to sustain life unless strict formalities have been complied with. These formalities are that the decision must be in writing, signed and witnessed. In addition, there must be an express statement that the decision stands “even if life is at risk”.Independent Mental Capacity Advocate (IMCA):The statutory Independent Mental Capacity Advocacy Service is to help particularly vulnerable people who lack capacity make important decisions about serious medical treatment and changes of accommodation, and who have no family or friends that it would be appropriate to consult about these decisions. In Trafford this is provided by Rethink through the Centre for Independent Living as advised on Page 30

Decision Maker(s):This is the person(s) who has to undertake, or person(s) who have undertaken, a best interests process to arrive at a decision on behalf of a person who lacks capacity in relation to the ‘decision in question’, and they either make the best interests decision individually or collectively. See the C ap a c i t y As s e s s me n t & B es t I n t e r es t P ro ce s s F o r m ‘CABIP’ tool procedure.

Lasting Power of Attorney (LPA):The Act allows a person to appoint an attorney to act on their behalf if they should lose capacity inthe future and allows them to empower an attorney to make decisions about property and affairs as well as health and welfare decisions. The attorney must be registered with the Office of the Public Guardian before they can legally act for the person in regards to decisions in connection with their Property & Affairs and / or decisions as to their Personal Welfare, in their best interests.

Donee:This is the person who makes a Lasting Power of Attorney, for either Property & Affairs and / or Personal Welfare.

Deputy of the Court of Protection:

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Court of protection deputies are appointed individuals given the power to make decisions abouteither personal welfare and/or financial matters.

Public Guardian:The Public Guardian is the registering and monitoring authority for Lasting Power of Attorneys and deputies. It supervises deputies appointed by the court and provides information to help the court make decisions. It also works with other agencies, for example the police and adult social care to respond to any concerns raised about the way in which an attorney or deputy is operating.

Managing Authority:The care home or hospital provider such as acute or foundation trust.

Supervisory Body:Trafford Council are the supervisory body

Relevant Person:The service user or patient, as appropriate.

Relevant Person’s Representative:The person appointed by the Supervisory Body to represent the ‘relevant person’ subject to a DOLSAuthorisation.

Best Interests Assessor:The professional appointed by the Supervisory Body to undertake certain assessments of the sixqualifying requirements upon which the Deprivation Of Liberty Safeguarding legislation is founded.

Mental Health Assessor:The professional appointed by the Supervisory Body to undertake certain assessments of the sixqualifying requirements upon which the Deprivation Of Liberty Safeguarding legislation is founded.

Standard Authorisation:A Managing Authority must request a Standard Authorisation when it appears likely that, at sometime during the next 28 days, someone will be accommodated in its care home or hospital in circumstances that amount to a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights.

Urgent Authorisation:Where it is not possible, and the Managing Authority believes it is necessary to deprive someone oftheir liberty in their “best interests” before the standard authorisation process can be completed; the Managing Authority must itself give an Urgent Authorisation and then obtain a Standard Authorisation within seven calendar days. An urgent authorisation can be for a maximum of seven days but may be extended by the Supervisory Body for up to a further seven days in exceptional circumstances.

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Ill Treatment (Criminal Offence under Section 44)Ill-treatment covers both deliberate acts of ill-treatment and also those acts which are reckless which result in ill-treatment.

Wilful neglect (Criminal Offence under Section 44)Wilful neglect requires a serious departure from the required standards of treatment and usually means that a person has deliberately failed to carry out an act that they knew they were under a duty to perform.

Both of the above offences are punishable by fines or imprisonment. Both offences can be committed by anyone responsible for that adult’s care and support – paid staff but also family carers as well aspeople who have the legal authority to act on that adult’s behalf (i.e. persons with power ofattorney or court-appointed deputies).

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