Mental Capacity Act. Target Audience. Who Should Read This Policy. All Trust Employed Staff Bank and Agency Staff

Mental Capacity Act Who Should Read This Policy Target Audience All Trust Employed Staff Bank and Agency Staff Version 2.0 March 2017

Ref. Contents Page 1.0 Introduction 4 2.0 Purpose 5 3.0 Objectives 5 4.0 Process 5 4.1 Principles of Mental Capacity Act 5 4.2 Mental Capacity Act 2005 and the Mental Health Act 1983 (as amended 2007) 6 4.3 Assessing Capacity 8 4.4 Best Interests 11 4.5 Decision Makers 11 5.0 Procedures connected to this Policy 15 6.0 Links to Relevant Legislation 15 6.1 Links to Relevant National Standards 17 6.2 Links to other Key Policies 19 6.3 References 20 7.0 Roles and Responsibilities for this Policy 21 8.0 Training 22 9.0 Equality Impact Assessment 23 10.0 Data Protection and Freedom of Information 23 11.0 Monitoring this Policy is working in Practice 24 Appendices 1.0 Best Interest Decision Making Checklist 25 2.0 Mental Capacity Act - Two Stage Test/Best Interests Forms 33 3.0 IMCA Referral 38 Version 2.0 March 2017 2

Explanation of terms used in this policy Code of Practice - Written to support the understanding and application of how the Mental Capacity Act 2005 works in practice Capacity: - Capacity is the ability to make specific decision at the time the decision needs to be made. Ability to make a decision is informed by, for example, a person ability to understand the decision and why it needs to be made. Lack of Capacity - The MCA defines a lack of capacity as an inability to make a particular decision at a particular time due to an impairment of or disturbance in the functioning of the mind or brain Decision Maker - The person who is most appropriate to make a particular decision or who has the specific authority to make the decision Best Interests - Under the Act, many different people may be required to make decisions or act on behalf of someone who lacks capacity to make decisions for them. The person making the decision is referred to as the decision maker. It is the decision maker s responsibility to work out what would be in the best interests of the person who lacks capacity. The Act does not define the term best interest ; however, Section 4 of the Act (supported by the Code) sets down how to decide what is in the best interests of a person who lacks capacity in any particular situation Wilful Neglect - The meaning varies depending on the circumstances. Usually it means that a person has deliberately failed to carry out an act they knew they had a duty to do Lasting Power of Attorney (LPoA) - This is a Power of Attorney created by the MCA 2005, appointing an attorney to make decisions in relation to personal welfare, including healthcare and/or deal with property and affairs Donor A person who makes a Lasting Power of Attorney Court Appointed Deputies A deputy is appointed by the Court of Protection to make decisions for someone who is unable to do so on their own. They are responsible for making these decisions until either the person they re looking after dies or is able to make decisions on their own again. This replaces the previous system of receivership Restrictions, Restraint and Deprivation of Liberty - Section 6 of The Mental Capacity Act defines restraint as the use or threat of force where an incapacitated person resists, 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 restraint is used is proportionate to the likelihood and seriousness of the harm. There is no single definition of deprivation of liberty. The starting point is the persons care plan, and takes into consideration the Acid Test the type, the duration, effect, and the manner of implementation of the restriction/restraint measures in question 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 consider necessary to sustain life, unless strict formalities have been complied with Independent Mental Capacity Advocate- The statutory 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 Version 2.0 March 2017 3

1.0 Introduction In line with the Mental Capacity Act code of practice, Black Country Partnership Foundation Trust is required to have clear systems and processes in place to raise concerns and take appropriate actions if an issue of capacity is raised. The Trust is also required to ensure their staffs receive appropriate education and training in Mental Capacity and ensuring that all relevant functions on behalf of the MCA are applied accordingly to the standards contained in the Mental Capacity Act 2005: Code of practice, and the Deprivation of Liberty Safeguards Code of Practice. Mental Capacity is the ability to make a decision. Capacity can vary over time and by the decision to be made. The inability to make a decision could be caused by a variety of permanent or temporary conditions, for example, a stroke or brain injury, dementia, a mental health problem, a learning disability, confusion, drowsiness or unconsciousness because of an illness or the treatment for it; or due to alcohol or drug use/ misuse. The Mental Capacity Act (MCA) 2005 provides a statutory and quality framework to empower and protect some of the most vulnerable people in society. It applies to adults aged 16 years and over. It makes it clear who can take decisions, in which situations and how they should go about this in respect of people who lack capacity to make particular decisions for them. Section 42 of the MCA places a statutory duty on the Lord Chancellor to produce a Code of Practice (the code) to provide guidance on how to proceed when undertaking duties under the MCA. In line with this two codes of practice have been produced, The Mental Capacity Act: Code of Practice (2007) and the Deprivation of Liberty Safeguards Code of Practice (2008), both of these apply to England and Wales. Section 42 (4) places an obligation on certain persons acting in relation to a person who lacks capacity to have regard to any relevant code whilst working within its framework. This includes anyone acting in a professional capacity or for remuneration, and those carrying out functions under DOLS - thus staff of the Trust must be aware of the requirements of and have regard to MCA and DOLS codes of Practice. The Codes have statutory force for Trust staff carrying out duties and departure from the Codes could give rise to legal challenge, therefore robust recording of capacity and best interest s decisions within the patient record should be maintained. Section 44 - of the Ill-treatment or neglect- The Act introduces two new criminal offences: ill treatment and wilful neglect of a person who lacks capacity to make relevant decisions. The offences might apply to anyone caring for a person who lacks capacity- this includes family carers, healthcare and social care staff in hospitals or care homes and those providing care in a person s home. Also applies to an attorney appointed under LPA or an EPA, or a deputy appointed for the person by the court. These people may be guilty of an offence if they ill treat or wilfully neglect the person they care for or represent. Penalties will range from a fine to a sentence of imprisonment of up to five years both. Version 2.0 March 2017 4

2.0 Purpose The purpose of this policy is to underpin the implementation of the MCA within the Trust by outlining the procedures to assess mental capacity, make decisions in the best interests of patients including patients who appear to have no family or friends to consult, use restraint, and follow valid and applicable advanced decisions. The Trust takes its responsibility for the care and treatment of patients seriously and aims to ensure compliance with legislation, statutory instruments and guidance. 3.0 Objectives Embody the principles of the MCA 2005 in the clinical practice of the Trust Improve awareness and understanding of those parts of the MCA 2005 relating to the assessment of mental capacity and making best-interest decisions where patients are assessed as lacking capacity Make clear the responsibilities of the Trust and its employees in terms of protecting patients that may lack capacity Define when formal assessments of mental capacity are necessary and to provide a standard format for carrying out and recording them 4.0 Process 4.1 Principles of Mental Capacity Act Section 1 of the MCA sets out five principles to be followed in working with people who may lack capacity. Because these are embodied in the MCA they are statutory principles and have a corresponding authority. They must be followed at all times when the MCA is being used, including assessment of capacity. A person must be assumed to have capacity unless it is established that he or she lacks capacity It is necessary to demonstrate on the balance of probabilities that a person lacks capacity to make the decision in question. A lack of capacity for one decision does not mean that a person lacks capacity to make other decisions that affect them. Assumptions cannot be made based on a person s age, appearance, illness or condition (mental health, dementia, learning disability etc.) A person is not to be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success All information relevant to the decision must be presented in a way that the person can understand. This may include the use of different means of communication or the provision of information in an accessible format. A person is not to be treated as unable to make a decision merely because he or she makes a decision that others believe to be unwise Having the right to take risks is an individual choice. However, a pattern of unwise decisions might prompt staff to consider whether a Capacity Assessment is appropriate. An act done or decision made, for or on behalf of a person who lacks capacity must be done, or made, in his or her best interests The Act defines what is meant by best interests and the Code provide a Best Interests Checklist which needs to be referred to when making these decisions. Version 2.0 March 2017 5

Before such an act is done, or decision 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 invasive or restrictive of the person s rights and freedom of action When making a best interest decision on behalf of a person who lacks capacity, the decision maker must seek the option that is least restrictive of their rights and freedoms. However, in some instances the chosen option may not necessarily be the least restrictive one, if a more restrictive option is considered to be in their best interests. For specific guidance on the principles of Mental Capacity Act please see the individual SOPs listed in 5.0 Procedures connected to this Policy. Also see Deprivation of Liberty Safeguarding Policy. 4.1.1 The Role of the Statutory Principles They exist to protect people who lack capacity They aim to help people take part, as much as possible, in decision making The principles apply to any act done or decision made under the Act Trust staff must apply the principles and evidence their application in their records 4.2 Mental Capacity Act 2005 and the Mental Health Act 1983 (as amended 2007) The Mental Health Act 1983 (as amended 2007) may need to be considered where a person, needing treatment for a mental disorder Needs to be deprived of their liberty Where the treatment cannot be safely provided without compulsion The person may need to be restrained in a way that is not allowed under MCA The MCA may be used to treat a person for mental disorder when they cannot consent to treatment because they lack capacity and where the treatment is in their best interests and would not result in a deprivation of their liberty providing they are not detained under the Mental Health Act 1983 (as amended 2007). The MCA cannot be used to detain anyone. Where it is thought a person might need to be detained for treatment for mental disorder, an assessment with a view to detention under the MHA should be considered. Please note the Deprivation of Liberty safeguards allows a person lacking capacity to be treated under MCA whilst being deprived of their liberty in certain circumstances, that deprivation must be authorised to be lawful, either under the Deprivation of Liberty Safeguards (DOLS), contained in the MCA, or the Mental Health Act 1983 (as amended 2007) (MHA). Chapter 13 of the Mental Health Act 1983 (as amended 2007): Code of practice (2015) contains guidance on use of the MCA and DOLS, in particular paragraphs, 13-1,13-2, 13-3, 13-31, 13-33, 13.49-13.70 provide information on the circumstances in which they should be used and when the MHA should be utilised. The Trust Policy on Deprivation of Liberty safeguards gives further guidance to Trust staff. The MCA does not apply to treatment for mental disorder where a person has been detained under MHA, as the MHA allows treatment to be given without a person s consent (s28 MCA). This also means that attorneys (and deputies) cannot consent Version 2.0 March 2017 6

to, or refuse such treatment on a patient s behalf and an advance decision to refuse treatment for mental disorder can be over ridden where necessary, if being treated under Mental Health Act (as amended 2007). The exception to this is ECT when a valid and applicable Advance Directive or the views or an attorney or deputy will apply. 4.2.1 What MCA Covers The Act covers a wide range of decisions made on behalf of people who may lack capacity to make specific decisions for themselves. These can be decisions about day to day matters: Like what to wear, or what to buy when doing the weekly shopping or Decisions about major life changing events, such as whether the person should move into a care home or undergo a major surgical operation 4.2.2 Decisions not Covered by MCA There are certain decisions which can never be made on behalf of a person who lacks capacity to make those specific decisions. These include: Consenting to marriage, civil partnership or divorce Consenting to have sexual relations (unless abusive) Consenting to a child being placed in adoption or the making of an adoption order Discharging parental responsibility for a child in matters not relating to child property Consent under the Human Fertilisation and Embryology Act For mental health treatment under part IV of the Mental Health Act 1983 (as amended 2007), concerning a detained patient A decision on voting at an election for public office or a referendum 4.2.3 Younger People The MCA (2005) applies to people over 16 of age who lack capacity to make their own decisions. Most of the provisions of the MCA (2005) apply to young people age 16 and 17. Treatment decisions for young people age 16 and 17 who lack capacity must be made in their best interests in accordance with the principles of the Act. The young person s family and friends should be consulted where appropriate. A person needs to be over 18 to make a Lasting power of Attorney (LPA) or to be a LPA. 4.2.3.1 The children Act 1989 This law relates to children and those with parental responsibility for children. The MCA (2005) Act does not generally apply to people under the age of 16 but there are two exceptions: 1) The Court of Protection can make decisions about a child s property or finances (or appoint a deputy to make these decisions) if the child lacks Capacity to make such decisions within Section 2(1)* of the Act and is likely To still lack capacity to make financial decisions when they reach the age of 18 [Section 18(3)] 2) Offences of ill treatment or wilful neglect of a person who lacks capacity Within Section 2(1)* can also apply to victims younger than 16 (Section 44) Version 2.0 March 2017 7

4.2.4 Restraint The MCA (2005) Section 6 (4) of the Act states that someone is using restraint it they: Use force or threaten force to make someone do something that they are resisting, or Restrict a person s freedom, whether they are resisting or not Ill- treatment/ Neglect could potentially cover restraining someone unreasonably against their will, (see section 44 of the MCA) failure to provide adequate care or financial abuse. Any action intended to restrain a person who lacks capacity will not attract protection from liability unless the following two conditions are met: A person taking action must reasonably believe that restraint is necessary to prevent harm to the person who lacks capacity, and The amount or type of restraint used and the amount of time it lasts must be a proportionate response to the likelihood and seriousness of harm There is no protection under the MCA for an action that deprives someone of their liberty unless it is authorised under the Deprivation of Liberty Safeguards or by an order from the Court of Protection. There may also be protection under the Common Law for using restraint with an individual (who may or may not lack capacity) in situations where another person could be harmed. Again the level of restraint would have to be proportionate to the circumstances. This could happen in circumstances where one service user may be harming another or where a service user may be harming a member of staff. Any use of restraint must be reported via the Trust Datix system. Care plans must reflect the fact that it was an emergency response (restraint) or a planned clinical intervention. Care plans must reflect the person s capacity or lack of, detailing why it is in the person s best interest to carry out such an act. This must also evidence ongoing clinical intervention with the Trust best interest decision making checklist (See Appendix 1) The Trust has a duty to monitor and provide regular reports on the use of restraint within the Trust. All Datix incidents relating to restraints are sent to members of the MAPA Team for information. This information is collated by the team on a monthly basis and disseminated to all Trust managers. 4.3 Assessing Capacity The Act clearly states that an assessment that a person lacks capacity must never be based simply on their age, appearance or on assumptions about their condition and/ or their behaviour. The Act sets out a process which must be followed when assessing capacity. 4.3.1 The Test of Capacity Anybody who claims that an individual lacks capacity must be able to provide proof They need to be able to show on the balance of probabilities that the individual lacks capacity to make specific decision, at the time it needs to be made Version 2.0 March 2017 8

To help determine whether a person lacks capacity to make a specific decision, the MCA (2005) sets out the two stage capacity test of capacity (See Standard Operating Procedure 1 (SOP 1) Assessment of Mental Capacity and Best Interest Decisions and Appendix 2a) Chapter 4 of the MCA Code of Practice describes how capacity should be assessed 4.3.1.1 Stage One of the Two Stage Capacity Test Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? IMPORTANT PLEASE NOTE If a person does not have such an impairment of, or a disturbance in the functioning of, their mind or brain, they will not lack capacity under the MCA (2005) 4.3.1.2 Stage Two of the Two Stage Capacity Test Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to? According to the MCA (2005) a person is unable to make a decision if they cannot: 1. Understand information about the decision to be made (the MCA 2005 call this relevant information) 2. Retain that information in their mind 3. Use or weigh that information as part of the decision making process or 4. Communicate their decision by talking, writing, using sign language or any other means MCA (2005) states that every individual must be given all practical and appropriate support to help them make the decision themselves whenever possible (See Standard Operating Procedure 1 (SOP 1) Assessment of Mental Capacity and Best Interest Decisions). All those involved in the process, should document clearly, how they helped the person reach the decision themselves, and what steps were taken. If the person lacks capacity after such steps then this too should be clearly documented how the lack of capacity decision was reached and evidenced. IMPORTANT PLEASE NOTE If the individual cannot do any of items 1-3 listed above they will be treated as unable to make a decision and will therefore be deemed to lack capacity for that particular decision. The 4 th item only applies in cases where the individual is unable to communicate their decision in any way. In such cases the person will be therefore deemed to lack capacity for that particular decision. 4.3.1.3 When Should Capacity be Assessed? The Act identifies that there are a number of instances when it is appropriate/ necessary to question, or assess, a person s mental capacity to make a specific decision. This could be when: The person s behaviour or circumstances cause doubt as to whether they have the capacity to make a decision Someone else says that they are concerned about a person s capacity or Version 2.0 March 2017 9

The person has been previously diagnosed with an impairment or disturbance which affects the way their mind or brain works and it has already been shown that they lack capacity to make other decisions in their life 4.3.1.4 Who Should Assess Capacity? The person who assesses an individual s capacity to make a decision will usually be the person who is directly concerned with the individual s case at the time the decision needs to be made. Within the Trust this means that the person assessing the capacity of the individual may possibly be a member of any of the following professional groups: Nursing, Medical and/ or Allied Healthcare Professional - Whilst any person may assess capacity individually, the MCA (2005) also identifies that frequently such assessments will be conducted utilising a collaborative approach by the Multi-disciplinary team. For day to day decisions Chapter 4 of the MCA (2005) states this will be the person caring at the time the decision needs to be made. For example a care worker might need to assess if the person can agree to be bathed. The MCA (2005) chapter 4 states that any assessor should have the skills and ability to communicate effectively with the person. If necessary they should get professional help to communicate with the person. Ultimately, however the MCA (2005) states that it is up to the professional responsible for the individual treatment to make sure that capacity has been assessed. 4.3.1.5 Professional Records and Documenting Capacity In the event that an individual is judged to lack capacity to make a decision, it is essential that all professional staff involved in that individual care and treatment keep an accurate record of all the decisions and discussions concerning their mental capacity. What specific decision needed to be made and by when The evidence indicating the individual lacks capacity for that specific decision What steps were taken to support the individual to make their own decision What decision(s) were taken in the best interest if the individual and who was involved in this process The mutli-disciplinary meeting notes should clearly indicate all of the above and be written in a clear and concise format, including the best interest decision checklist This information should be stored in the patient medical and nursing notes, to ensure that all involved in care are aware of the best interest decision This information is an essential element of clinical practice. It provides evidence to support those staff involved within the decision making in the event that they are called to account for their actions. 4.3.1.6 Capacity Assessment in the Care Planning Process It is identified within the MCA (2005) that an assessment of the individual capacity to consent or agree to the provision of service will be part of the care planning process for their health and social care needs and must be in the relevant documentation. Version 2.0 March 2017 10

This may include: The individual s nursing care plan/nursing process Care programme approach within Mental Health services Individuals who are subject to the single assessment process This means we can only ask the individual to sign their care plan if they have the capacity to consent to the care plan (see regulation 9). When a person lacks capacity to consent to a care plan, the care plan is written in their best interests, until such time that the individual regains their capacity at this point the care plan can be reviewed. The care plan must be regularly reviewed demonstrating that capacity was being assessed as an ongoing process in the care planning for such individual. This must be evidenced within the documentation. 4.4 Best Interests Everything that is done for or on behalf of a person who lacks capacity must be in that person s best interests. The MCA (2005) provides a useful checklist of factors that decision makers must work through in deciding what is in the person s best interest (see Standard Operating Procedure 1 (SOP 1) Assessment of Mental Capacity and Best Interest Decisions, Appendix 1 and Appendix 2b). A person can put his/ her wishes and feelings into a written statement if they so wish, which must be considered by the decision maker. Carers and family members have a right to be consulted when a decisions is being made in the individuals best interest. 4.4.1 Best Interest Meetings Best Interest meetings must take place when decisions are being made in a persons best interest due to lack of capacity. A best interest meeting must take place using the best interest forms available in this policy. 4.5 Decision Makers Under the Act, many different people may be called upon to make decisions or act on behalf of an individual who lacks capacity to make their own decisions. The person making the decision is referred to within the MCA (2005) as the decision maker, and it is this decision maker s responsibility to work out what decision would be in the best interest of the individual concerned. In all circumstances any person acting as a decision maker is required to follow the recommended Best interest decision making checklist (see Standard Operating Procedure 1 (SOP 1) Assessment of Mental Capacity and Best Interest Decisions and Appendix 1) 4.5.1 Urgent Decisions There are occasions when an urgent decision is required. Version 2.0 March 2017 11

In the absence of clear, valid and applicable advance decisions regarding refusal of treatment, nothing should prevent immediate actions to preserve life, prevent homelessness or protect from serious harm. If there is a dispute relating to an urgent decision. 4.5.2 Designated Decision Makers The Act identifies two types of designated decision makers who have designated authority to make decisions. These are Lasting power of Attorney (LPAs) and Court of Protection Appointed Deputies. Within the Trust all staff must ensure that all patients/ service users/ residents/ clients are routinely asked if they have an LPA or deputy. Further guidance on what staff should do if an individual states they have a LPA or an LPA has been identified. 4.5.2.1 Lasting Power of Attorney (LPA) - Code of Practice chapter 7 Any LPA is a power of attorney created under the MCA (2005) appointing an attorney or attorneys, to make decisions about the donor s personal welfare, (including healthcare) and/ or deal with the donor s property and affairs. Please note that under the Act the donor is defined as the individual who makes LPA. The Act allows the donor to appoint two separate types of attorney to act on their behalf if they should loose capacity: these are the Property and Affairs LPA and Personal Welfare LPA. Property and Affairs LPA can look at and after a range of issues when acting on behalf of the donor such as: Buying or selling property Opening/closing bank or building society accounts Claiming, receiving and using all pensions, allowances and rebates Receiving income, inheritance or other entitlements Paying household bills, insuring and maintaining property Paying fees for care and treatment Making applications for allowances or benefits Personal Welfare LPA can look at a range of issues when acting on behalf of the donor such as: Living arrangements Day to Day care Consent to, or refusing medical examinations and treatment Assessment and provision of community care services Obtaining rights of access to personal information Making a complaint regarding the donors care and treatment Consulting on/contributing towards the proposed care plan for the donor Making decisions on the donor s best interest To be valid and operative an LPA must be set out in the prescribed form and registered with the office of the Public Guardian (OPG). Forms and guidance are available on Office of the Public Guardian website. Version 2.0 March 2017 12

Staffs needs to make reasonable efforts to ensure they have established if or not the individual has a LPA and to refer to them. When health or social care staffs are involved in preparing a care plan for someone with an LPA for their personal welfare, they must first assess whether the individual (donor) has capacity to agree to the care plan or parts of it. If the donor lacks capacity, professionals must then consult the attorney and get their agreement to the care plan. They must also consult the attorney when considering what action is in the donor s best interest. As a general rule it would not be appropriate for Trust staff to be a LPA for a service user chapter 7 (7.10). 4.5.2.1.1 Disagreements between Health and social Care Staff and the LPA If Health and social care staffs disagree with the LPA assessment of best interest they must discuss the individual case with other medical experts and /or get a formal second opinion. They should then discuss the matter with the appointed LPA. In the event that staff is unable to reach an agreement with the LPA they can apply to the Court of Protection. Whilst the Court of Protection is coming to a decision on the case, Health and social care staff can give life sustaining treatment to prolong the individual s life or to stop their condition getting worse. 4.5.2.2 Court of Protection - Section 45 of the MCA (2005) The Court of Protection is the ultimate arbiter for matters concerning people who lack capacity. It is able to establish precedent through case law (chapter 8 Code of Practice). Its powers include: Making decisions regarding whether or not a person has capacity to make specific decisions Making declarations, decisions or orders regarding a person s welfare or financial matters Appointing deputies to take decisions on a person s behalf Deciding if an LPA/EPA is valid Removing deputies or attorneys who fail to carry out their duties 4.5.2.2.1 Accessing the Court of Protection In order to be accessible for urgent decisions the Court is contactable 24 hours a day every day of the year. Applications to the Court are likely to be relatively rare however matters referred to the court might include: Disputes regarding capacity, from the person themselves, professional disagreements or family disputes -however it is important to try resolving every dispute locally Serious health care decisions where a declaration is required prior to action being taken for example organ or bone marrow donation and non-therapeutic sterilisation Doubts or disputes regarding best interest decisions Disagreements regarding the existence, validity or applicability of advance decisions Version 2.0 March 2017 13

Application to the court involves a standard fee, it is therefore important to access the court via an identified process in each organisation. 4.5.2.2.2 Court Appointed Deputies The Act provides for a system of Court of Protection appointed deputies to replace the previous system of receivership. Deputies will be able to take decisions on welfare, healthcare and financial matters as authorised by the Court of Protection, (but not able to refuse consent to life sustaining treatment). They will only be appointed if the Court cannot make a one off decision to resolve the issues. Deputies must be 18 years of age or over and in most cases will be a family member, a paid- care worker must not accept this role. When making decisions on the person s best interest deputies must: Follow the principles of the Act Act in the persons best interest Have a regard to the Code of Practice Only make decisions for which the court has given them authority 4.5.2.3 The Office of Public Guardianship The Public Guardian has a responsibility to help protect people who lack capacity and monitor decision makers. Its functions include: Registering LPAs Maintaining a register of LPAs of EPAs and deputies (social and health care agencies will be able to check against this register free of charge) Supervising and supporting deputies Receiving reports from attorneys Providing reports to the Court of Protection Instructing Court of Protection visitors e.g. investigate possible abuse Application to the Court to cancel a deputy s appointment Receiving complaints regarding attorneys and deputies To find out more about the Office of Public Guardian please access their website. 4.5.2.4 Independent Mental Capacity Service (IMCAs) The aim of the IMCA service is to provide independent safeguards for people who lack capacity to make certain decisions and, at the time such decisions need to be made, have no one else (other than paid staff) to support or represent them or be consulted. An IMCA must be instructed and then consulted if a person lacks capacity and has no one else to support them whenever: An NHS body is proposing to provide serious medical treatment, or An NHS body or local authority is proposing to arrange accommodation (or a change of accommodation) in hospital or a care home, and Version 2.0 March 2017 14

The person will stay in hospital longer than 28 days, or They will stay in the care home for more than eight weeks Regulations under MCA (2005) also state that IMCAs may be involved in other decisions concerning: A care review An Adult protection Case In adult protection cases, an IMCA may be appointed even where family members or others are available to be consulted. The role of the IMCA is to support and represent the person who lacks capacity. Because of this, IMCAs have the right to see relevant health care and social records. Information should not be disclosed from health and social care if: Access to it would cause serious harm to the mental or physical health of the person who is the subject of the information or anyone else: or if The person lacking capacity previously asked for it not to be disclosed If staff are in any doubt about whether information should be disclosed to an IMCA, advice can be sought from the information Governance team and MCA/ DOLS lead. 4.5.2.4.1 How to Access an IMCA Before a referral is made to IMCA, the decision maker or other nominated professionals must determine whether or not the criteria for a referral are met. If the criteria have been met then the decision maker or another nominated professional must follow the process detailed below: Contact Pohower and request an IMCA with the referral using the secure email as per Trust Policy Inform MCA lead through the safeguarding email box, that an IMCA has been requested Document this in the individual s notes To contact Pohwer visit www.pohwer.net or call 03004562370. See Appendix 3 for IMCA Referral Form. 5.0 Procedures Connected to this Policy Standard Operating Procedure 1 (SOP 1) Assessment of Mental Capacity and Best Interest Decisions Standard Operating Procedure 2 (SOP 2) Consent to Treatment Standard Operating Procedure 3 (SOP 3) Advance Decisions and Advance Statement 6.0 Links to Relevant Legislation Equality Act 2010 Equality Act came into force on 1 October 2010 and brought together over 116 separate pieces of legislation into one single Act to provide a legal framework to protect the rights of individuals and advance equality of opportunity for all. The Act simplifies, strengthens and harmonizes the current legislation to provide a new Version 2.0 March 2017 15

discrimination law which protects individuals from unfair treatment and promotes a fair and more equal society. Mental Health Act 1983 (as amended 2007) The Mental Health Act (2007) amended the Mental Health Act (MHA) of 1983. The main purpose of the legislation is to ensure that people with serious mental disorders, which threaten their health or safety or the safety of other people can be treated irrespective of their consent where it is necessary to prevent them from harming themselves or others. The amended act introduced: A new broad definition of mental disorder to encompass any disorder or disability of the mind An appropriate treatment test, preventing patients from being compulsorily detained unless appropriate medical treatment is available Community Treatment Orders to supervise the treatment of certain patients in the community New safeguards including a provision for Independent Mental Health Advisors to provide information and help people understand and exercise their rights New roles to replace the roles of approved social worker and responsible medical officer Provision for powers to reduce the time limits for the automatic referral of some patients to the Mental Health Review Tribunal Human Rights Act 1998 One of the main laws protecting human rights in the UK, it contains a list of 16 rights (called articles) which belong to all people in the UK, and outlines several ways that these rights should be protected. These rights are drawn from the European Convention on Human Rights, which were developed by the UK and others in the aftermath of World War II. The Human Rights Act may be used by every person resident in the United Kingdom regardless of whether or not they are a British citizen or a foreign national, a child or an adult, a prisoner or a member of the public. The Human Rights Act has two main aims, to promote a culture of human rights by making sure that basic human rights underpin the workings of government at the national and local level and enabling access to human rights here at home, instead of only being able to go to the European Court of Human Rights It does this by placing a legal duty on all public authorities, including NHS organisations and staff and mental health tribunals carrying out public functions, to respect and protect human rights in everything that they do. This means that public authorities have legal responsibilities for respecting, protecting and fulfilling human rights. This duty is important in everyday situations because it enables individuals to challenge poor treatment and to negotiate better solutions. Data Protection Act 1998 The Data Protection Act 1998 became law in March 2000. It sets standards that must be satisfied when obtaining, recording, holding, using or disposing of personal data. The law applies to data held on computers or any sort of storage system, including paper records. There are 8 enforceable principles of good practice. Data should be: Version 2.0 March 2017 16

Fairly and lawfully processed Processed for limited purposes Adequate, relevant and not excessive Accurate Not kept longer than necessary Processed in accordance with the data subject's rights Secure Not transferred to countries outside the European Economic Area (EEA), without adequate protection Human Fertilisation and Embryology Act 2008 The HFE Act 2008 is divided into three parts: 1. amendments to the Human Fertilisation and Embryology Act 1990 2. parenthood 3. miscellaneous and general The main new elements of the Act are: ensuring that the creation and use of all human embryos outside the body - whatever the process used in their creation - are subject to regulation a ban on selecting the sex of offspring for social reasons requiring that clinics take account of the welfare of the child when providing fertility treatment, and removing the previous requirement that they also take account of the child s need for a father allowing for the recognition of both partners in a same-sex relationship as legal parents of children conceived through the use of donated sperm, eggs or embryos enabling people in same sex relationships and unmarried couples to apply for an order allowing for them to be treated as the parents of a child born using a surrogate changing restrictions on the use of data collected by the HFEA to make it easier to conduct research using this information provisions clarifying the scope of legitimate embryo research activities, including regulation of human admixed embryos (embryos combining both human and animal material) Tissue Act 2004 The HT Act is a legal framework for regulating the storage and use of human organs and tissue from the living, and the removal, storage and use of tissue and organs from the deceased, for specific health related purposes and public display. The Act makes it an offence to have human tissue, which includes hair, nail and gametes in this context, with the intention of its DNA being analysed without the consent of the individual from whom the tissue came, or of those close to them if they have died. This provision applies UK-wide. Penalties for not obtaining consent are provided. 6.1 Links to Relevant National Standards CQC Regulation 9: Person-Centred Care The intention of this regulation is to make sure that people using a service have care or treatment that is personalised specifically for them. This regulation describes the action that providers must take to make sure that each person receives appropriate Version 2.0 March 2017 17

person-centred care and treatment that is based on an assessment of their needs and preferences. Providers must work in partnership with the person, make any reasonable adjustments and provide support to help them understand and make informed decisions about their care and treatment options, including the extent to which they may wish to manage these options themselves. Providers must make sure that they take into account people's capacity and ability to consent, and that either they, or a person lawfully acting on their behalf, must be involved in the planning, management and review of their care and treatment. Providers must make sure that decisions are made by those with the legal authority or responsibility to do so, but they must work within the requirements of the Mental Capacity Act 2005, which includes the duty to consult others such as carers, families and/or advocates where appropriate. CQC Regulation 10: Respect and Dignity The intention of this regulation is to make sure that people using the service are treated with respect and dignity at all times while they are receiving care and treatment. To meet this regulation, providers must make sure that they provide care and treatment in a way that ensures people's dignity and treats them with respect at all times. This includes making sure that people have privacy when they need and want it, treating them as equals and providing any support they might need to be autonomous, independent and involved in their local community. Providers must have due regard to the protected characteristics as defined in the Equality Act 2010. CQC Regulation 11: Need for Consent The intention of this regulation is to make sure that all people using the service, and those lawfully acting on their behalf, have given consent before any care or treatment is provided. Providers must make sure that they obtain the consent lawfully and that the person who obtains the consent has the necessary knowledge and understanding of the care and/or treatment that they are asking consent for. Consent is an important aspect of providing care and treatment, but in some cases, acting strictly in accordance with consent will mean that some of the other regulations cannot be met. For example, this might apply with regard to nutrition and personcentred care. However, providers must not provide unsafe or inappropriate care just because someone has consented to care or treatment that would be unsafe. See the glossary for the definition of 'relevant person' in relation to Regulation 11. NICE Clinical Guideline CG42 - Dementia: supporting people with dementia and their carers in health and social care This guideline covers preventing, diagnosing, assessing and managing dementia in health and social care, and includes recommendations on Alzheimer s disease. It aims to improve care for people with dementia by promoting accurate diagnosis and the most effective interventions, and improving the organisation of services. The guideline states that health and social care professionals should always seek valid consent from people with dementia. This should entail informing the person of options, and checking that he or she understands, that there is no coercion and that Version 2.0 March 2017 18

he or she continues to consent over time. If the person lacks the capacity to make a decision, the provisions of the Mental Capacity Act 2005 must be followed. It also states that in the absence of a valid and applicable advance decision to refuse resuscitation, the decision to resuscitate should take account of any expressed wishes or beliefs of the person with dementia, together with the views of the carers and the multidisciplinary team. The decision should be made in accordance with the guidance developed by the Resuscitation Council UK and, if the person lacks capacity, the provisions of the Mental Capacity Act 2005. It should be recorded in the medical notes and care plans. 6.2 Links to other Key Policies Deprivation of Liberty Safeguarding Policy The purpose of this policy is to provide staff working within Black Country Partnership NHS Foundation Trust with guidance about the Deprivation of Liberty Safeguards. Mental Health Act Policy The aim of the policy is to support staff in the effective implementation of the Mental Health Act 1983 (as amended 2007), to ensure service users detained under the Act receive care and treatment lawfully and that they are able to exercise their rights at all times Raising Concerns at Work (Whistleblowing) Policy The purpose of this policy is to provide staff with clear guidance on the Trust s commitment to ensure that fair and non-discriminatory systems are in place for staff to raise concerns under this policy. Being Open and Duty of Candour Policy The purpose of this policy is to explain the meaning of Being Open and Duty of Candour in practice by providing clear information to staff to enable them to have the confidence to communicate and act appropriately with patients, their families and carers when things go wrong. Locked door Policy The purpose of this document is to provide guidance to all staff on their approach and management of locked doors and entry and exit protocols. The policy sets out the overarching aims of the Trust and should be supported with local guidance that considers local issues i.e. dementia patients, higher percentage of informal patients as these will require individualised approaches. Restrictive Physical Intervention Practice Policy The purpose of this policy will be to detail the Trust s strategy in managing physical and non-physical assaults against NHS staff and others by the use of restrictive physical interventions. The Trust recognises that person centred care is at the heart of all good practice and that all incidences of known or potential aggression must be dealt with on an individual basis in order to create a unique solution. The core aim is to promote a philosophy of proactive care and a reduction in the use of restrictive physical interventions. Version 2.0 March 2017 19

Clinical Risk Management Policy This policy is intended to guide practitioners who work with service users to manage the risk of harm. It sets out the principles and standards required that should underpin best practice across all health settings, and describes the tools that are used to structure the often complex clinical risk management process. Rapid Tranquilisation policy The purpose of this policy is to provide staff with clear direction in regard to the use of rapid tranquillisation when faced with incidents of acutely disturbed behaviour and extreme aggression. 6.3 References Nursing Midwifery Council (NMC) The Code. Available at: https://www.nmc.org.uk/globalassets/sitedocuments/nmc-publications/nmccode.pdf Ministry of Justice (2007) Mental Capacity Act (2005) Code of Practice, London: The Office of the Public Guardian. Available at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/4 97253/Mental-capacity-act-code-of-practice.pdf CQC: Monitoring the use of the Mental Capacity Act Deprivation of Liberty Safeguards in 2013/14 Advance Decisions to Refuse Treatment; a Guide for Health and Social Care Professionals. The National Council for Palliative Care. Available at: http://www.adrtnhs.co.uk/ Version 2.0 March 2017 20

7.0 Roles and Responsibilities for this Policy Title Role Key Responsibilities All Trust Staff Adherence - Familiarise themselves with the 5 statutory principles - Recognise the importance of how issues of age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex (gender) or sexual orientation may impact on assessment of adults and families and subsequent responses - Attend appropriate mandatory Mental Capacity Act education and training - Undertake capacity assessments as appropriate - Act as the decision maker when appropriate - Refer for advocacy where required - Report any Mental Capacity related issues to their line managers - Ensure care planning processes reflect whether a person has the capacity to consent to the services which are to be provided and whether their actions are likely to result in a deprivation of liberty - Ensure any decisions taken in a person s best interest is reflected in the Best interest checklist and referred to in the MDT and clearly documents a best interest decision plan - Progress agreed adult safeguarding action plans, for which they are responsible, within agreed timescales - Ensure they communicate effectively with other professionals and members of multi-agency groups to promote adult safeguarding - Maintain good record keeping standards and work according to the Trust Health Record Keeping policy Ward Managers/ Team Leaders Operational - Ensure copies of the Code of Practice and other relevant guidance are available to staff - Ensure their staff are appropriately trained regarding mental capacity and to promote best practice in this area - Ensure that policies and procedures are followed and understood as appropriate to each staff member s role and function; and to appropriately report non-compliance with policy - Ensure that all decisions regarding best interest are monitored and have had the required best interest decision making paper work completed, evidence in MDT - Act as/ or delegate the Managing Authority duties and responsibilities for completion of DoLS forms and liaison with the Supervisory Body - Ensure compliance with conditions attached to DoLS authorisations - Ensure any dispute regarding best interest decisions are dealt with locally/informally and then following the necessary pathway when a resolution can not be agreed. To ensure that this is escalated to the MCA lead and safeguarding team through the safeguarding mailbox - Ensure all DoLS forms are passed onto Safeguarding Mailbox to ensure that these can be passed on to CQC by MCA and DOLs Lead Please note this will be amended shortly Service Managers Implementation - Provide advice and support to staff on MCA issues/concerns raised within their service areas - Ensure staff receive appropriate education and training - Investigate adult MCA/safeguarding concerns raised within the Trust and to co-operate with any related investigations Version 2.0 March 2017 21

Title Role Key Responsibilities MCA and DOLs lead Associate Director for Safeguarding Implementation Lead Mental Capacity Act Policy - Ensure clear and robust procedures are in place for staff to obtain guidance and clarity with regard to the Mental Capacity Act - Support other staff in identification of and appropriate reporting (form completion) of cases that may constitute a DoLS - Support other staff to follow local and national guidance in assessment of capacity and in making choices on behalf of people lacking capacity - Assist with embedding the principles of the MCA within the Trust - Provide feedback where appropriate on use of MCA and DoLS, specific issues and concerns, and training to Service Managers - Maintain a record of safeguarding and MCA cases for monitoring and recording purposes - Provide Trust staff with support and advice for complex safeguarding / MCA and Deprivation of Liberty Safeguards (DoLS) concerns - Support the investigation of safeguarding/mca concerns raised within the Trust Leadership - Provide clinical leadership and strategic direction on all aspects of Safeguarding Adults to ensure that health services contributions are co-ordinating and integrated across the Trust - Provide expert knowledge and advice to Trust staff in accordance with national and local requirements arising from relevant legislation and guidance, including the National Framework for Safeguarding Adults Trust Board Strategic - Strategic overview and final responsibility for setting the direction of this policy - Ensure that it fulfils its statutory responsibilities Medical Director Executive Lead - Trust strategic direction for this policy - Agree action plans to address issues relating to this policy - Update the Trust Board regularly on issues relating to Mental Capacity Act Policy 8.0 Training What aspect(s) of this policy will require staff training? Basic Awareness MCA/DoLS Which staff groups require this training? Is this training covered in the Trust s Mandatory and Risk Management Training Needs Analysis document? If no, how will the training be delivered? Who will deliver the training? All Trust Staff Yes E-Learning Learning and Development Team How often will staff require training On Induction and every 3 years thereafter via E-Learning Who will ensure and monitor that staff have this training? Workforce Development Group Version 2.0 March 2017 22

What aspect(s) of this policy will require staff training? MCA/DoLS Included in Safeguarding Adults Level 2 and 3 Training Which staff groups require this training? Level 2 - nonclinical and clinical staff who have some degree of contact with Adults and their families/carers Level 3 - All qualified Clinical staff Is this training covered in the Trust s Mandatory and Risk Management Training Needs Analysis document? No, staff will receive specific training in relation to this policy where it is identified in their individual training needs analysis as part of their development for their particular role and responsibilities No, staff will receive specific training in relation to this policy where it is identified in their individual training needs analysis as part of their development for their particular role and responsibilities If no, how will the training be delivered? Internally face to face Internally face to face Who will deliver the training? Strategic Lead for Safeguarding Adults and Children Strategic Lead for Safeguarding Adults and Children How often will staff require training Who will ensure and monitor that staff have this training? 3 yearly Safeguarding Adults and Children Team 3 yearly Safeguarding Adults and Children Team 9.0 Equality Impact Assessment Black Country Partnership NHS Foundation Trust is committed to ensuring that the way we provide services and the way we recruit and treat staff reflects individual needs, promotes equality and does not discriminate unfairly against any particular individual or group. The Equality Impact Assessment for this policy has been completed and is readily available on the Intranet. If you require this in a different format e.g. larger print, Braille, different languages or audio tape, please contact the Equality & Diversity Team on Ext. 8067 or email EqualityImpact.assessment@bcpft.nhs.uk 10.0 Data Protection and Freedom of Information This statement reflects legal requirements incorporated within the Data Protection Act and Freedom of Information Act that apply to staff who work within the public sector. All staff has a responsibility to ensure that they do not disclose information about the Trust s activities in respect of service users in its care to unauthorised individuals. This responsibility applies whether you are currently employed or after your e mployment ends and in certain aspects of your personal life e.g. use of social networking sites etc. The Trust seeks to ensure a high level of transparency in all its business activities but reserves the right not to disclose information where relevant legislation applies. Version 2.0 March 2017 23

11.0 Monitoring this Policy is working in Practice What key elements will be monitored? (measurable policy objectives) Where described in policy? How will they be monitored? (method + sample size) Who will undertake this monitoring? How Frequently? Group/Committee that will receive and review results Group/Committee to ensure actions are completed Evidence this has happened Compliance with MCA Policy Standard Operating Procedure 1 (SOP1) Assessment of Capacity and Best Interests Compliance to the Mental Capacity Act MCA Questionnaire MCA Capacity Act Survey Audit to determine evidence of best interest meetings and evidence of capacity assessments Safeguarding Adults Team/ MCA Lead Quarterly Mental Health Legislation Forum Mental Health Legislation Forum Minutes of meetings/ action plans signed off Version 2.0 March 2017 24

Appendix 1 Best Interest Decision Making Checklist This form has been developed to support your compliance with the Mental Capacity Act 2005 (MCA). There is a statutory requirement for anyone making a best interest decision to have regard to the Code of Practice for the Mental Capacity Act which can be accessed via the Legislation section of the Adult Care Procedures Manual. References given below refer to the relevant paragraphs of the MCA Code What is the 'best interests' principle and who does it apply to? The 'best interests' principle underpins the Mental Capacity Act. It is set out in chapter 5 of the MCA Code and states that: "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." This principle covers all aspects of financial, personal welfare and healthcare decision- making and actions. Certain decisions are excluded because they are either so personal to the individual concerned, or governed by other legislation which include consenting to marriage and consenting to have sexual relations. For full details see 1.8 to 1.11 of the MCA Code. 2.1. Service user details Name: Date of birth: Case/ref: Present address/location: Home address (if different): 2.2. Person completing this form Name: Role: Organisation: Tel: Email: Address: Version 2.0 March 2017 25

2.3. State the specific decision relevant to this best interest checklist (see 1.2 of Form 1 Mental Capacity Assessment) 2.4. The MCA Code 5.3 states "working out a person's best interests is only relevant when that person has been assessed as lacking, or is reasonably believed to lack, capacity to make the decision in question or give consent to an act being done." Confirm that a capacity assessment has established the person lacks capacity to make this decision. If the assessment has not established lack of capacity you cannot proceed with a best interests decision. (see 1.9 of Form 1 Mental Capacity Assessment) Yes No Date Undertaken by: Name: Profession: Relationship to person: Tel: Email: Address: 2.5. Clearly identify who is the named decision-maker for this Best Interest Decision. (see 1.5 of Form 1 Mental Capacity Assessment) Name: Profession: Tel: Email: Address: Version 2.0 March 2017 26

Chapter 5 of the MCA Code details what you should take into account when working out someone's best interests. As every case, and every decision, is different, that law can't set out all the factors you should consider, however, it sets out some common factors which must always be considered. These factors are summarised in a checklist which this form will now prompt you to work through. 2.6. Best interests consultation record your consultation with the service user. (see 5.21-5.24 and 5.37-5.48 of the Code) What are the issues that are most relevant to the person who lacks capacity? Specify their past and present wishes, feelings and concerns in relation to this decision. What are their values and beliefs (e.g. religious; cultural; moral) in relation to this decision? Are there any other "relevant circumstances" that should be taken into account in this case? Is there a relevant advanced statement? A person may have previously recorded preferences for their future care. Such requests should be taken into account as strong indications of a person's wishes though they are not legally binding. 2.7. Use this section to record who is involved in the consultation. You must include anyone named by the person lacking capacity as someone to be consulted, another professional, and, where appropriate, anyone engaged in caring for the person or interested in their welfare, e.g. any attorney, Court Appointed Deputy or other relevant person. (see 5.49-5.55 of the Code) Version 2.0 March 2017 27

Name: Relationship to person: Date consultation was undertaken: What do they consider to be in the person's best interests on the matter in question? Do they have any information about the person's wishes, feelings, values or beliefs in relation to this matter? Name: Relationship to person: Date consultation was undertaken: What do they consider to be in the person's best interests on the matter in question? Do they have any information about the person's wishes, feelings, values or beliefs in relation to this matter? Name: Relationship to person: Date consultation was undertaken: What do they consider to be in the person's best interests on the matter in question? Do they have any information about the person's wishes, feelings, values or beliefs in relation to this matter? Version 2.0 March 2017 28

Name: Relationship to person: Date consultation was undertaken: What do they consider to be in the person's best interests on the matter in question? Do they have any information about the person's wishes, feelings, values or beliefs in relation to this matter? 2.8. Independent Mental Capacity Advocate (IMCA) involvement Where the person lacking capacity has nobody that can be consulted other than paid carers and professionals, and faces a decision about serious medical treatment or a change of residence, the law requires you to ensure an IMCA is appointed. You also have discretion to refer the person for an IMCA if this decision relates to a safeguarding concern or a care review. The role of the IMCA is to facilitate the decision making process, they are not the decision-maker. (see chapter 10 of the MCA Code) Referral to IMCA service made? Yes No Date Name of appointed IMCA: Organisation: Tel: Email: Address: 2.9. Best interests decision balance sheet approach: specify the different options that are being considered. In deciding best interests, you must explore if there is a less restrictive way to achieve what is in the person's best interests but you do not automatically have to take whatever is the least restrictive option overall. This is because the least restrictive option might not be the one that is in the person's best interests. Version 2.0 March 2017 29

Option one Description: Benefits for the person: Risks for the person: Can this be achieved in a less restrictive way? Option two Description: Benefits for the person: Risks for the person: Can this be achieved in a less restrictive way? Option three Description: Benefits for the person: Risks for the person: Can this be achieved in a less restrictive way? Option four Description: Benefits for the person: Risks for the person: Can this be achieved in a less restrictive way? Version 2.0 March 2017 30

2.10. Additional information considered by the decision-maker in making the best interests decision specified. 2.11. Final decision. Give the reasons why this option has been selected and why other options have been rejected. 2.12. Objections. Record here if anyone disagrees with the decision that has been made and how you intend to proceed. (see 2.63-5.69 of the MCA Code) 2.13. Best interests decision risk assessment. If you have identified specific risks, consider if you need to complete a specialist risk assessment tool. Specialist risk assessment tool completed? Yes No Date Completed: Completed by: 2.14. Deprivation of Liberty. Article 5 of the European Convention on Human Rights provides that everyone has the right to liberty and security of person. This section helps to highlight if the person might be being deprived of their liberty. On 19.3.14 the Supreme Court handed down a judgment in the case of P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and Anor [2014] UKSC 19 (19th March 2014). The judgment is significant as it introduced a new acid test for deciding whether the living arrangements of a person lacking capacity to consent to them amounts to a deprivation of liberty. Version 2.0 March 2017 31

If the person lacks capacity to consent to their living arrangements are they: Under continuous supervision and control? Yes No AND Are they free to leave? (In this context this means not free to choose to live elsewhere). Yes No If you have answered 'yes' to either of these questions and the person is in a care home or hospital, the Deprivation of Liberty Safeguards (DoLS) may apply and you must seek advice by contacting the Deprivation of Liberty Safeguards Team on 01216128157 or 07973962948. If the person is living in the community and you are concerned that there may be a deprivation, this would need to be authorised by the Court of Protection and you should seek legal advice. Please note that the judgment made it clear that the person's compliance or lack of objection to the placement; the reason or purpose behind a placement and the relative normality of the placement is no longer relevant to the question of whether they are being deprived. Decision-maker: Date: Version 2.0 March 2017 32

Appendix 2 Mental Capacity Act - Two Stage Test/Best Interests Forms Please note the forms below are designed to be printed back to back on A4 paper giving a single sheet for the Two stage functional test appendix 2a and a single sheet for Best interests checklist - appendix 2b These forms should be placed in the service users notes, where they are easily visible and accessible to all staff. The service user should also receive a copy. The nature of decision (two stage form) and the decision (best interests form) must be identical and be the decision the service user is being asked to make. Note: If the two stage functional test demonstrates that the person has capacity there is no need to complete the best interest form as the person will make their own decision. Version 2.0 March 2017 33

Two Stage Functional Test for Capacity (Appendix 2a) Patient/User Name: DOB: Patient ID No (NHS or Social Care): STAGE ONE DIAGNOSTIC THRESHOLD Does the patient/service user have an impairment of or disturbance in the functioning of the mind or brain? Yes No If the answer is No then capacity is not at issue. If Yes then record nature of disturbance by applying a tick in the applicable condition as listed below. Neurological disorder Mental disorder Stroke Delirium or unconsciousness Other (please record) Learning disability Dementia Head injury Substance use NATURE OF DECISION (capacity must be assessed on a decision by decision basis) Record in the space below the nature of decision at issue for the person being assessed. STAGE TWO TEST See core policy for guidance on test criteria. Please circle/highlight appropriate answer. 1) Does the person understand the information relevant to the decision? Yes No 2) Can the person retain the information for long enough for the decision to be made? Yes No 3) Can the person use or weigh the information to make a choice? Yes No 4) Can the person communicate the decision? Yes No Answering No to any question above indicates lack of capacity. The assessor must record below evidence in relation to the above assessment outcome. The assessor should refer to Mental Capacity Act Code of Practice chapters 3 and 4 and include: 1. The key elements of the decision and what information the person was given to make the decision. 2. The strategies used to help the person understand the relevant information including the involvement of significant others. 3. How the person conveyed their decision. 4. How optimum timing and environment / location were used to ensure the person felt at ease. Version 2.0 March 2017 34

OUTCOME Does the patient have capacity to make this decision at this time? Yes No If the answer is No then complete the Appendix 2b (Best Interest Checklist) Assessor s details Name (print): Signature: Designation: Date: Time: Version 2.0 March 2017 35

Best Interests Checklist for Use by Health and Social Care Staff Working with Person Lacking Capacity in Relation to a Decision (Appendix 2b) Patient/User Name: Patient ID No (NHS or Social Care): DOB: DECISION Record in the space below the decision for which person lacks capacity CHECKLIST Please circle appropriate answer 1) Has an advance decision or advance refusal been made about the decision in question (only in relation to healthcare decision), and is it still relevant? Yes No If the answer is Yes then no further assessment is necessary 2) Have you considered whether it is likely that the person may have capacity at some time in future and whether a delay in decision-making will allow them Yes No to make that decision themselves? 3) Have you encouraged as far as is practicable that person s involvement in actions undertaken on their behalf or in any decisions affecting them? Yes No 4) Have you considered as much as is practicable the person s past and present wishes and preferences about the matter in question? Yes No 5) Have you considered any relevant written statement the person may have made when they did have capacity? Yes No N/A 6) Have you considered the beliefs and values that would be likely to influence the person s attitude to the decision in question, i.e. religious, cultural and Yes No lifestyle choices? 7) Have you taken into account other factors that the person would be likely to consider in relation to the matter, i.e. emotional bonds or family obligations Yes No in deciding how to spend money or where to reside? 8) Have you considered alternative actions that produce less restriction on the person s rights and freedoms? Yes No 9) Have you consulted and taken into account the views of other key people as to what would be in a person s best interests and gathered information on their wishes, feelings, values, beliefs? a) Anyone named in advance as someone to be consulted? Yes No N/A b) Carers, family, spouses or partners? Yes No N/A c) Others with an interest in their welfare, friends, voluntary workers, other professionals? Yes No N/A d) Any Lasting Power of Attorney? Yes No N/A e) Any Deputy appointed by the Court of Protection? Yes No N/A If there are any conflicts in the above consultations, there needs to be an attempt to reach a consensus. However, the decision maker makes final decision. Version 2.0 March 2017 36

If there is an answer No in question 2 to 9, then staff should question whether they are acting in best interests. If no-one is available to consult and/or if there is serious conflict of opinion and the decision and eligibility relates to decisions identified in Section 4 of the local policy and procedure, then an IMCA referral should be considered. Staff should evidence their consultations in the space below: (continue on a separate sheet where necessary but firmly attach it to this document). Name and job title of worker: Name: Job title: Date of Decision Making/Best Interests Consideration: Version 2.0 March 2017 37

Appendix 3 IMCA Referral Guidance on IMCA involvement and completing this form: The aim of the Independent Mental Capacity Advocacy (IMCA) service is to provide independent safeguards for people who lack capacity and other than in adult protection cases have no-one else (other than paid staff) to support or represent them or be consulted. In Change of Accommodation, Serious Medical Treatment and Care Review cases, we ask referrers: Before making a referral, to identify if the person who lacks capacity has previously named someone who could help with the decision and if that person may be available and willing to help; Before making a referral, to identify if the person who lacks capacity has appointed an attorney under a Lasting / Enduring Power of Attorney who continues to manage the person s affairs; When making a referral to provide information where unpaid persons are available (e.g. family or friends) but they are considered inappropriate to consult, about why they are considered inappropriate to consult, helping us to ensure IMCA involvement is appropriate. For guidance on who is it appropriate to consult? see paragraphs 10.74 10.80 MCA Code of Practice. NB: Please ensure all parts of the form relating to the relevant decision / issue are completed and IMCA cri teria is met by checking relevant tick boxes and providing further information in the free text boxes available. Failure to complete all relevant parts of the form may result in delaying the appointment of an IMCA. Details relating to the Person Lacking Capacity: Person (P) s Name: P s Date of Birth: P s Home Address: (please include postcode and telephone contact where possible) Address of P s Current Location (if different from above): If hospital please include ward name/number How does P communicate? Telephone: Please detail any risk issues or incidents relevant to P we should be aware of: Version 2.0 March 2017 38