Complying with the Mental Capacity Act Department of Health July 2015 1 DH Leading the nation s health and care Niall Fry - MCA Policy Lead DH Twitter - @NiallatDH Email - Niall.Fry@dh.gsi.gov.uk
Overview Principles of the MCA Care Quality Commission - MCA Care Quality Commission - DoLS Law Commission review of DoLS Legislation National guidance - MCA Conclusions 2 DH Leading the nation s health and care
The principles of the MCA are ambitious and far reaching 1. Assume each individual has capacity until shown otherwise 2. Supported decision-making with a variety of communication methods 3. Allowing individuals the freedom to make unwise decisions 4. Ensuring all decisions are made in the individuals best interests 5. Exploring in each situation the least restrictive option The principles of the MCA should be thoroughly embedded in they way all medical and social care professionals work every day. The MCA is not a piece of legislation removed from everyday front line work. Compliance with the MCA cannot be achieved if it is approached as a tick box exercise. It is a cultural ethos of centring care around the individual. 3 DH Leading the nation s health and care
Using the Mental Capacity Act 4 DH Leading the nation s health and care
CQC Inspecting compliance with the MCA Is peoples consent to care and treatment always sought in line with legislation and guidance? House of Lords: One year on CQC response 2015 Do staff understand the relevant consent and decision making requirements of legislation and guidance, including the Mental Capacity Act 2005 and the Children s Acts 1989 and 2004. How are people supported to make decisions? How and when is a person s mental capacity to consent to care or treatment assessed and, where appropriate, recorded? When people lack the mental capacity to make a decision, do staff make best interests decisions in accordance with legislation? How is the process for seeking consent monitored and improved to ensure it meets responsibilities within legislation and follows relevant national guidance? Do staff understand the difference between lawful and unlawful restraint practices, including how to seek authorisation for a deprivation of liberty? Is the use of restraint of people who lack mental capacity clearly monitored for its necessity and proportionality in line with legislation and is action taken to minimise its use? 5 DH Leading the nation s health and care
CQC Inspecting compliance with the MCA DoLS Pre March 2014 Post March 2014 While we recognise the pressure local authorities are under, this represents a worryingly high number of people being deprived of their liberty without external scrutiny and authorisation. We expect local authorities to do all they can to assess the backlog of requests for authorisation and prevent its recurrence. - Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2013/14, CQC (2014) 6 DH Leading the nation s health and care
Law Commission DoLS review The Supreme Court judgment resulted in a ten-fold increase in cases. The DoLS process was designed when a DoL was considered rare This is no longer the case. Strong criticisms of DoLS from committees of both Houses of Parliament. A lot of poor implementation of DoLS is due to poor/ variable understanding as much as the legislation itself. The challenge: a system that delivers safeguards that benefit the individual, but which can be delivered at a population level and which reinforces/ aligns with the wider health and care system 7 DH Leading the nation s health and care
Law Commission DoLS review Legislative Change? Determined not to rush such an important decision. We want to ensure the Law Commission can consult as widely as possible. This is a rare opportunity to take a comprehensive approach. The Law Commission is very much in the driving seat DH awaiting their recommendations and confident these will address stakeholder s concerns. The final report is due at the end of 2016. Then Government will need to identify Parliamentary time and subject it to debate and scrutiny. 8 DH Leading the nation s health and care
National MCA Guidance Palliative Care In last few days/ weeks of life, consent before losing capacity can be taken to be consent to the conditions of care (providing no subsequent major change) Coroners DoLS This is not, for families, a death in state detention and so professionals should act appropriately. Working with Police and Providers to ensure families are kept informed before the event - good communication absolutely key Eligibility All of this only applies to those who have a mental disorder, lack the specific capacity to consent the accommodation and who meet the acid test. [NB. Unconsciousness in itself not a mental disorder] 9 DH Leading the nation s health and care
Conclusions Applying the MCA The principles of the MCA are basic good practice and should be embedded in the culture of all organisations providing care to vulnerable people. CQC want to see evidence of this practice in inspections not just lipservice DoLS They are about people, not paperwork, the principles are right and the Law Commissions work is focussing on making the system work for the people. CQC are expecting LA s and providers to do all they can in the circumstances they are in. Any comments or questions? How do we make this work for real people and within the current context of the health and care system? Welcome your views 10 DH Leading the nation s health and care