Safeguarding adults
Useful information
Are you concerned someone is being abused?
More information on safeguarding adults can be found on Leicestershire County Council's website.
The Law Commission ran a consultation from 24 February 2010 - 1 July 2010 with a view to reviewing the law relating to adult social care in England and Wales. More information can be found on their website.
Dignity in Care
The Dignity Campaign aims to put dignity at the heart of care services.
Find out more...
Useful documents and links:
Assessment of capacity form
Mental capacity assessment guidance
Mental Capacity Act 2005 - deprivation of liberty safeguards in England DH
Ten things you need to know about deprivation of liberty
Guidance for primary care health professionals on the mental capacity act 2005
IMCA referral form
Flowcharts
Flowchart of how to decide whether or not a person aged 16 or over has capacity
Should I refer my client to an Independent Mental Capacity Advocate (IMCA)?
The Mental Capacity Act 2005 provides a statutory framework for people (age 16 and above) who lack capacity to make decisions for themselves, or who have the capacity and wish to make preparation for a time when they may lack capacity in the future. The act clearly states who can make decisions in which situations and how they should go about this.
The act came into force October 2007. Clear categories of staff are legally required to work to the guidance contained in the Code of Practice:
- An attorney acting under a Lasting Power of Attorney
- A deputy appointed by the new Court of Protection
- Persons acting as an independent mental capacity advocate
- Staff carrying out research approved in accordance with the act
- Those acting in a professional capacity for, or in relation to, a person who lacks capacity. Includes nurses, doctors, dentists, therapists, radiologists, and paramedics, social workers, care managers, ambulance crew, housing officers and police officers
- Staff being paid for acts for, or in relation to, a person who lacks capacity. This includes care assistants in a home, domiciliary care workers and others contracted to provide service to people who lack capacity to consent to that service
The Act also applies to everyone who looks after or cares for people who lack capacity to make decisions. This includes family and other carers.
What is capacity?
The most important term contained within the act is ‘a person who lacks capacity' this means a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken. This capacity is decision specific.
Some people may have the capacity to make some decisions for themselves but not other decisions. It also provides for people who do not have the capacity to make a decision at that time but may have the potential for doing so in the future. These decisions may be around activities of daily living such as when to get up, eat etc or decisions that may have legal consequences for themselves or others. This includes consent to medical treatment, making a will, buying goods or changing accommodation i.e. to long term residential care settings.
What you need to know
There are five principles which underpin the Mental Capacity Act
In order to protect those who lack capacity and to enable them to take part, as much as possible in decisions that affect them, the following statutory principles apply:
- You must always assume a person has capacity unless it is proved otherwise
- You must take all practicable steps to enable people to make their own decisions
- You must not assume incapacity simply because someone makes an unwise decision
- Always act, or decide, for a person without capacity in their best interests
- Carefully consider actions to ensure the least restrictive option is taken
Assessment of capacity:
The Code of Practice outlines a two-stage test of capacity:
- Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? This may be temporary or permanent - If the answer is yes proceed to second stage:
- Does that impairment or disturbance mean that the person is unable to make the decision in question, at the time it needs to be made?
Can the person:
- understand what decision they need to make and why they need to make it?
- understand the consequences of making, or not making, this decision?
- retain, use and weigh information relevant to the decision?
- communicate their decision by any means (i.e. speech, sign language)?
If the person cannot do any of these they are assessed as lacking capacity and a decision must then be made ‘in their best interests' by the person who is to give the care or treatment.
How to act in someone's best interests
- Do not make assumptions about capactiy based on age, appearance or medical condition
- Encourage the person to participate as fully as possible
- Consider whether the person will in the future have capacity in relation to the matter in question
- Take into account the views of others - i.e. carers, relatives, friends, advocates
- Consider the least restrictive options
(also see code of practice)
Where to find guidance
A code of practice has been issued to and is held by the locality service manager, integrated hospital team manager and integrated community team manager of each locality. Extra copies can be downloaded from www.publicguardian.gov.uk
For more details of the act, access to training sessions, leaflets and booklets contact kate.baxter@lcr.nhs.uk or 01509 568664.
Deprivation of liberty safeguards
The Deprivation of liberty safeguards (DoLS) come into force on 1 April 2009. People who suffer from a disorder or disability of the mind, such as dementia or a profound learning disability, and who lack capacity to consent to the care or treatment they require, may need to be cared for in a way that deprives them of their liberty. However this must be authorised and must be the least restrictive option.
What is a deprivation of liberty?
The new safeguards cannot be used to detain people in hospital for treatment of a mental disorder in situations where the Mental Health Act 1983 could be used instead. The European Court did not specifically define what a deprivation of liberty is but did draw a distinction between a deprivation of liberty and a restriction on a person's movement.
The Mental Capacity Act does allow people who lack capacity to be restrained to prevent them suffering harm provided it is a proportionate response to the likelihood of the person suffering harm and to the seriousness of that harm. In determining if there is a deprivation then there must be regard to the specific circumstances of the person concerned.
The following factors can be relevant in determining if a deprivation of liberty exists:
- Restraint is used including sedation to admit a person to an institution where that person is resisting admission
- Staff exercise complete and effective control over the care and movement of a person for a significant period
- Staff exercise control over assessments treatment contacts and residence
- A decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate
- A request by carers for a person to be discharged to their care is refused
- The person is unable to maintain social contacts because of restrictions placed on their access to other people
- The person loses autonomy because they are under continuous supervision and control
After 1 April 2009 who applies for and who authorises a deprivation of liberty?
The managing authority is the care home or hospital in which the relevant person is located or is to be located in the next 28 days. In the vast number of cases it should be possible to plan in advance if an authorisation is needed. However the safeguards allow for circumstances beyond anyone's control and urgent authorisations can be made.
The managing authority can issue itself an urgent authorisation that lasts up to seven days. A standard authorisation request must also be submitted to the supervisory body and the assessment process completed before the expiry of the urgent authorisation.
Standard authorisation is submitted to the supervisory body and has to be processed within 21 days. The supervisory body authorises a deprivation of liberty, this will be the primary care trust for hospitals and the local authority for care homes.
The supervisory body can agree to extensions to the timescales in exceptional circumstances although it is anticipated this should be rare.
A supervisory body is responsible for considering requests, commissioning the required assessments and where all assessments agree authorise the deprivation of liberty.
The five supervisory bodies across Leicester, Leicestershire and Rutland (two primary care trusts and three local authorities) have jointly commissioned a deprivation of liberty assessment team (DoLS team) to carry out delegated functions of assessment on their behalf. The DoLS team is the single point of contact for referrals and advice.
Further information and referral forms can be found at:
http://www.leics.gov.uk/deprivation_of_liberty
The DoLS Team can be contacted on 0116 3057853
or via email DolsTeam@leics.gov.uk