Developments in Mental Capacity Law and the OT

1. DEVELOPMENTS IN MENTAL Overview
CAPACITY LAW AND THE
• Law before the Mental Capacity Act 2005
OCCUPATIONAL THERAPIST
• Deprivation of Liberty
• Sex
Conor Maguire • The Mental Capacity 2005 and what it means
Public Law Department for an OT
Irwin Mitchell Solicitors • Case Studies
conor.maguire@irwinmitchell.com • Conclusions
21 September 2012
In the beginning……… In the beginning………
• Historically a wide ranging jurisdiction
• Lawful and best interests declarations on
– women, felons, lunatics – all at some time treated as incompetent
– Mental Deficiency Act 1913 – “moral imbeciles” – Healthcare and treatment
– Personal welfare – residence, care & contact
• Greater social equality leads to need for objective justification for
declaration of a lack of capacity – mental disability
– Sex (could only declare lawfulness)
– Marriage (could only declare lawfulness)
• Mental Health Act 1959 – develops a statutory code for the treatment of
a mental disorder. Abolishes powers of the Court to make decisions
about personal welfare and healthcare other than in the context of • The Impact of the Human Rights Act 1998
treatment for mental disorder
and the need to seek the guidance of the
• Leads to a declaratory jurisdiction (lawful & best interests) – Re F Court
(1990) and Airedale v Bland (1993)
The Mental Capacity Act 2005 Principles of the Act
• Why? • Assumption of Capacity
– Gaps in the law – lack of a comprehensive strategy to deal A person must be assumed to have capacity unless it is established that he lacks capacity
with the problems thrown up by those who lacked capacity • Empowerment
– Courts lack of powers A person is not to be treated as unable to make decisions unless all practical steps to help him to do so
have been taken without success
– Social change – emphasis on community care, avoidance of
• Unwise decision
discrimination, change in attitudes to disability, need for A person is not to be treated as unable to make a decision merely because he makes an unwise decision
protection, need to raise awareness of the legal position of
incapable people • 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
• Reform takes place over decades from 1980’s to the coming • Least Restrictive
Before the act is done , or the decision is made, regard must be had to whether the purpose for which it is
into the force of the MCA on 01 October 2007 needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom
of action

2. DECISION MAKING UNDER THE
What is Mental Incapacity? MENTAL CAPACITY ACT
New test (Section 2 MCA 2005): A DECISION OR SERIES OF DECISIONS IS REQUIRED TO BE MADE FOR
“a person lacks capacity in relation to a matter if at the material time he is A PERSON
unable to make a decision for himself in relation to the matter because of
an impairment of, or a disturbance of, the mind or brain”
GO AHEAD ON PERSON’S INSTRUCTIONS
ARE THERE CONCERNS ABOUT CAPACITY TO MAKE THAT DECISION?
NO WITH THEIR CONSENT
There is no universal test and there is a different test for different
purposes. YES
ASSESSED AS HAVING CAPACITY FOR
Section 3 CONSIDER IF THE PERSON HAS THE CAPACITY TO MAKE THAT
SPECIFIC DECISION AT PRESENT (MAY SEEK FORMAL ASSESSMENT)
YES THAT SPECIFIC DECISION
A person is unable to make a decision for himself if he is unable to:
a. Understand the information relevant to the decision. NO
b. Retain that information.
c. Use and weigh that information as part of the process of making CONSIDER STRATEGIES TO ASSIST THE PERSON TO MAKE THEIR
OWN DECISION
the decision-making.
YES
CAN THE PERSON MAKE THE DECISION WITH ASSISTANCE?
d. To communicate his decision (whether by talking, using sign
language or any other means). NO
PERSON LACKS CAPACITY TO MAKE DECISION – CONSIDER WHAT COURSE OF ACTION IS IN PERSON’S
BEST INTERESTS AND CONSULT IF APPROPRIATE
MAY TAKE INSTRUCTIONS FROM DEPUTY, ATTORNEY OR SEEK DIRECTIONS FROM COURT OF PROTECTION
The Duty To Act In The “Best Acts in Connection with Care and
Interests Treatment
Section 4. of the Act sets out a framework for considering what is in a Section 5:
person’s “best interests” and as far as possible the decision maker should (1) If a person (“D”) does an act in connection the care and treatment of
consider:
another person (“P”) the act is one to which this section applies if –
– The person’s past and present wishes and feelings (including any
written statement made when he had capacity) (a) before doing the act, D takes reasonable steps to establish
whether P lacks capacity in relation to the matter in question and
– The beliefs and values that they would be likely to have if they had
capacity (b) when doing the action D reasonably believes –
– Factors they would consider “if able to do so” (i) that P lacks capacity in relation to the matter, and
– The views of others should also be consulted, if appropriate, namely:- (ii) that it will be in P’s best interests for the act to be done.
• Anyone named by the person as someone to be consulted
• Anyone caring for the person or interested in their welfare (2) D does not incur any liability in relation to the act that he would not
• Anyone appointed under a Power of Attorney have incurred if P –
• Any deputy appointed by the Court (i) had had capacity to consent in relation to the matter, and
MCA does not define best interests, but does give a checklist which (ii) had consented to D doing the act.
probably should be used as a checklist.
Deprivation of Liberty DOL – Case Law
• Article 5 of the European Convention: • Storck v Germany [2005] - 3 Broad elements to consider
• “1 Everyone has the right to liberty and security of person. No – objective element - confinement for a not negligible time
one shall be deprived of his liberty save in the following cases – subjective element – no valid consent
and in accordance with a procedure prescribed law – – confinement imputable to the state – public authority
• …
• Domestic Law:
• (e) the lawful detention… of persons of unsound mind…;
– Bournewood (1999 – 2004)
• … – JE v DE [2006] - Munby J – concrete situation – type, duration, effect and
• 4 Everyone who is deprived of his liberty by… detention shall be manner of implementation – complete and effective control
entitled to take proceedings by which the lawfulness of his – P & Q [2011] - Crt. of Appeal – moved away from complete and effective
control. considered – objection, medication. purpose
detention shall be decided speedily by a court and his release
– Cheshire West – Crt of Appeal – Munby LJ – concrete situation – no one
ordered if the detention is not lawful” indicator will make a DOL. Need to consider normality and the relevant
comparator

3. DOL – Case Law (Cheshire) Sex
• Munby L J held:
D Borough Council v AB [2011]
when evaluating and assessing the ‘relative normality’ (or otherwise) of P’s
concrete situation in a case such as this, the contrast is not with the previous life • Act Specific Test – does P understand
led by X (nor with some future life X might lead), nor with the life of the able-
bodied man or woman….but with the kind of lives that people like X would
– the mechanics of the Act
normally be expected to lead. – that pregnancy can result
The comparator, in other words, is an adult of similar age, with the same – that he/she may contract an STI
capabilities as P, affected by the same condition or suffering the same inherent
mental and physical disabilities and limitations as P.
• Any other factors that should be considered?
because of his disabilities P is inherently restricted in the kind of life he can
lead. There is nothing to show that the life P is living at Z house is significantly • Alternative test to Act Specific?
different from the kind of life that anyone with his concatenation of difficulties
could normally expect to lead, wherever and in whatever setting they were
living.”
COT Code of Ethics and
How does this affect me? Professional Conduct 2010
• Occupational Therapist: • Considers in detail:
– mental capacity principles – decision specific
– need for informed consent – consent for one thing, not
Occupational therapy is the assessment and treatment of necessarily consent for another.
physical and psychiatric conditions using specific, purposeful – your duty of care – includes duty to give effect to the
activity to prevent disability and promote independent principles of the MCA
function in all aspects of daily life – professional integrity
NHS Careers website – DOL – does my intervention contribute to a DOL?
Professional Integrity and duty to take care will compromised by a
failure to have regard to mental capacity issues and to obtain
informed consent to intervention where appropriate
Use of the Court of Protection Case Study 1
If there is a dispute about capacity or best interests - follow the best
interest process
• P profoundly LD – lives with parents – 20 yrs
– have a meeting old
– consult the relevant people including P
• Moves around in his sleep so has a belt to
– record the decision and the reasons for it
strap her in place. Has had belt since a child
If the dispute persists: • Belt frays over years and parents look to local
– COP can resolve dispute on capacity and best interests
– COP Judges available 24/7 nationally
authority to replace
• Concerns as to the safety of the belt and DOL
Obligation on Public Bodies to bring disputes to the attention of the Court –
LBH v Neary [2011] EWHC 1377 • What do we do?

4. Case Study 2 Conclusions
• P lives in institutional care – brain injury • MCA and Code of Practice provide template for dealing with
mentally incapable
following accident – 18 years old • MCA and Code of Practice widely known about and therefore
• Making good progress so returns home to those acting in jurisdiction subject to scrutiny
visit parents. Retreats to bedroom and • All decisions on behalf of/for an incapacitous person are subject
to MCA principles
refuses to come out • Principles might not always provide what appears to be the best
• Will not engage with professionals (including outcome
• Beware of interventions which restrict/deprive the liberty of a
OT who has worked with at the care home) person
• What do we do? • If you’re not sure ASK!
Conor Maguire
Public Law Department
Irwin Mitchell Solicitors
0114 274 4642
conor.maguire@irwinmitchell.com