Legal Issues

1. Legal Issues

2. Aims • Case • MCA • Decision Making • Best interests • Other • MHA • DoLs

3. Case Sarah • 40 year lady • Lived carer / partner • Moderate LD & epilepsy • Complex mental health issues • Psychosis • Vulnerability

4. Case • Develops gangrenous R foot • Admitted DGH • Fluctuating consciousness • Partner asked to consent to amputation

5. Discuss • ? Views • Who decides re capacity? • How should capacity be determined? • How are best interests decided? • Where could they seek advice?

6. Legal concepts MENTAL CAPACITY ACT 2005

7. Statutory Principles • Presumed capacity. • Not be treated as incapacitous unless all practicable steps taken to improve decision making. • Right to make unwise decision. • Incapacity > treat best interests. • Least restrictive - persons rights & freedom of action.

8. Aspects to consider • Timing /urgency of decision • Communication • Culture • Advocate • Carers

9. 2 Stage Test • Impairment of mind / brain (temporary / permanent). • Impairment prevents a particular decision at the time it needs to be made.

10. Ability to make decision • General understanding • relevant information of decision • why need to make it. • Consequences of proposed action & of not doing it. • Understand, retain, use & weigh. • Communicate.

11. Capacity – particular decision • Understand (relevant information) • Retain, • Use & weigh. • Communicate.

12. Incapacitous “For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of impairment in the functioning of, the mind or brain.” • Prove - balance of probability - lacks capacity. • Document process.

13. Who decides • Final decision made by person intending to carry out action on behalf of someone - decision maker. • Complex decision ? Need further assessment involving another doctor/ expert. • Seek medical / legal advice decisions with significant impact or likely challenges.

14. Practical steps • Understand nature & effect of decision • Other - staff / records • Family - not their view but what they think person would want confidentiality • Explain information at right level • Check understanding few minutes - rough explanation

15. Professional / expert advice • Complicated / serious consequences. • Person challenges that decision. • Family disagree. • Conflict of interest between pt & assessor. • Someone might challenge. • Someone repeatedly makes decisions puts them at risk.

16. Challenge finding • Ask assessor reasons & objective evidence • Assessor must show followed principles of Mental Capacity Act • Second opinion • If disagreement cant be resolved > Court of Protection - rule

17. 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 best interests.’ Mental Capacity Act

18. Best Interests Checklist • Person participate as much as possible. • Identify all relevant circumstances • Persons views - • Past / present • Beliefs & values • Other factors they would have considered if deciding for self • Avoid discrimination -age, appearance condition behaviour

19. Best Interests Checklist… • ?regain capacity • Consult others - Confidentiality • Carers • Relatives • Attorneys • Court appointed deputy • IMCA • Least restrictive option • Weigh all

20. Life sustaining decisions • Not be motivated by desire to bring about death • Not make assumptions on QoL • Reasonable steps to prolong life • Not obliged to if not in best interest of patient • Court of protection if dispute

21. Exceptions • Advance decision • Research not covered here

22. Capacity • Decision maker decides best interests • Lasting Power of attorney / court appointed deputy decide their scope of authority / • Make record of process • How decision reached • Who consulted • Particular factors • Reasons for reaching decision

23. Disputes • Advocate • 2nd opinion • Best interest case conference • Mediation • Court of protection

25. Advocacy • No close friends/ family • Family disagree • Doctors / family disagree • Conflict of interest • Use of restraint or restrictions • Protection of vulnerable adult

26. Legal advice • Difficult / potentially problematic cases • Seek advice from • MPS / MDU • Trust legal advisors

27. Legal Aspects MENTAL HEALTH ACT

28. MHA • Use as for general psychiatry e.g. depressive disorder etc • LD • Arrested / incomplete development of mind • Significant impairment of intelligence + • Significant social functioning • Abnormally aggressive Behaviour or • Seriously irresponsible conduct

29. LD - Act • State of arrested / incomplete development of mind which includes significant impairment of intelligence & social functioning • Present prior to adulthood • Not from accident / injury / illness after normal development.

30. Significant impairment of IQ • on basis of reliable & careful assessment • Not defined by arbitrary cut off & • Significant social impairment

31. Abnormally aggressive & irresponsible behaviour Application for detention for treatment / reception into guardianship on basis of LD without other mental disorder only be made associated with 1 or both of.. • Abnormally aggressive behaviour • Seriously irresponsible conduct Not defined Depend on nature of B & circumstances

32. Ax conduct abnormally aggressive Not defined Depend on nature of B & circumstances Risks safety for individual & others How persistent & severe it been ?trigger ?out of proportion Whether & to what degree > harm / distress to others / damage to property ? Likely to reoccur ? How common to popn generally

33. Ax seriously irresponsible conduct • ? B suggest disregard /inadequate regard for its serious / dangerous consequences • ? How recent ? Persistence • ? Harm to others • If not recent how likely to reoccur

34. Legal aspects DEPRIVATION OF LIBERTY SAFEGUARDS (DOLS)

35. Background • Bournewood case • HL • Autistic & profound LD • Unable to consent to admission • Admitted treated • Restricted contact with carers • Kept sedated • Continuous supervision • Would be assessed for detention if tried to leave

36. ECHR • HL deprived of liberty Article 5 (1) of European convention of human rights • Detention arbitrary not in accordance with law • No procedure for him to challenge detention. Non compliant with Article 5(4) of

37. DoLS • Safeguard for “Bournewood gap” • Difference between restriction upon liberty or deprivation of liberty one of degree or intensity

39. Factors to consider re restraint / deprivation • Restraint including sedation to admit person who is resisting admission • Complete effective control care & movement significant periods • Decided not to release into care of others or permitted to live elsewhere • Refused request by carers for person to be discharged • Unable to maintain social contacts • Loses autonomy as under continuous supervision

40. Authorizing • Court of protection • DoLS • Necessary in order to give life - sustaining treatment while decision sought from court

41. Supervisory body PCT or Local authority authorize DoL adult in hospital / care home respectively • Needs • Representative • Regular review • Can request review any time

42. Lack capacity • Best interests • Less restrictive alternative

43. 6 requirements • Age - >18 • Mental health must be suffering with mental disorder or LD ( section 12 approved or special experience in diagnosis & assessment of mental disorder • Mental capacity – anyone mental health assessor / best interests assessor • Best interest. Best interest checklist consult others – IMCA if no one

44. Best interest. Best interest checklist • consult others – IMCA if no one • Amhp /SW/ 1st level nurse/ OT/ psychologist – trainig • Eligibility – ineligible if under MHA • No refusals

45. References • Mental Health Act Manual. Richard Jones eleventh edition • Assessment of Mental capacity a practical guide for doctors & lawyers 3rd edition. BMA & law society • Code of Practice – Mental Capacity Act 2005. TSO