Practitioners Experience and implications for Capacity Legi - PowerPoint Presentation

Slide1

Practitioners Experience and implications for Capacity Legislation in the North and South of Ireland

Paula Scully

Solicitor

ex Public Guardian (Australia) and ex Chairperson Guardianship Board Hong Kong)

paula.scully@derbyshire.gov.ukSlide2

Overview

Examine and make recommendations for ROI Assisted Decision Making (Capacity) Bill (ADMCB) and Northern Ireland Mental Capacity Bill (NIMCB)

Will focus on Deprivation of Liberty (DOL), proposed authorisation processes and safeguards and roles of proposed agencies.

Separate handout on additional recommendations not included in

Powerpoint

due to time constraints

Apologies for errors as working in England not Ireland!

“RPs” -describes the persons subject to both Bills - not intended to disrespect people with disabilities/ capacity issues but for time sake only!

Speaking personally and not on behalf of

my employerSlide3

ADMCB- general comments

Bill has lots of positives – abolition of wards of court system, setting out guiding principles, functional capacity, supported decision making through a range of roles

e.g

co decision making assistant, Court appointed representatives and the Public Guardian

Some recommendations on the need for advocacy services, detention/DOL processes, systems, transitional issues – see also other handout

Capacity assessments should be done by not only doctors but by nurses, social workers, psychologists, other health professionalsSlide4

ADMC Bill PG functions

Supervise

DM assistants

,

Co- DMs, attorneys, DM Representatives (DMRs) / receive their reports

Appoint

special

/general visitors/ court friends

Nominate

DMRs from a panel as last resort

Maintain

registers of all DM agreements/ EPAs

Receive

complaints

re

DMakers

& act on them

Create Codes of Practice etcSlide5

Protection against abuse ROI

A16 UNCRPD- States Parties shall take all appropriate legislative and other measures to protect persons with disabilities (PWDs) from exploitation, violence and abuse

ROI

- ADMC Bill –PG no power to investigate abuse /neglect

Is that for the Health Information & Quality Authority (HIQA) or/and HSE? Or should OPG become Office of Public Advocate to expand PG powers to cover A16?Slide6

Protection against abuse

What structures will protect RPs against abuse and exploitation?

England

– OPG can investigate allegations of abuse against deputies or attorneys– in reality, focus on financial abuse.

2013/4 – OPG received 2,200 new safeguarding referrals. 628 new cases accepted for full investigation- 1406 sent to Police or Local Authority to deal with.

If welfare attorney/welfare deputy suspected of abuse, expectation that Local Authority would take court action rather than PGSlide7

Visitors & Advocates

English OPG visitors conducted 10,589 visits in 2013/4 to support supervision and investigations activity

Visitor’s role under ADMCB to visit and take records too limited

Duty under ROI Citizens Information Act to provide advocacy for PWDs - National Advocacy Service

Bill should provide for Independent Decision Making Advocates (IDMAs

) to support /advocate for RPs in making significant decisions when interfacing with professionals, family or those charged with roles to assist/represent RP where issues /concerns raised, such as;

Decisions on future accommodation and care packages, refusal of serious physical treatment, safeguarding issues and to redress power imbalances when RP is caught up in a dispute with people in those other roles.Slide8

Advocates

Who will have power to appoint advocates? And at whose request? And where should advocacy service be located? PG / Court/ HSE/ MHC/HIQA

English Care Act- advocates for those with substantial difficulty in being involved/engaged in community care assessments, care / support planning and reviews

Independent Mental Capacity Advocates have championed supported decision making and pushed professionals to really engage with RPs.

Advocates help to embed better practice amongst professionals; reduce power imbalances for RPs. Slide9

A14 UNCRPD – Deprivation of liberty

States Parties shall ensure that PWDs, on an equal basis with others:

Enjoy the right to liberty and security of person;

Are not deprived of their liberty unlawfully or arbitrarily, and that any deprivation of liberty is in conformity with the law, and that

the existence of a disability shall in no case justify a DOL.

2. States Parties shall ensure that if PWDs are deprived of their liberty through any process, they are, on an equal basis with others, entitled to guarantees in accordance with international human rights law and shall be treated in compliance with the objectives and principles of the present Convention, including by the provision of reasonable accommodation.Slide10

DOLS-Deprivation of Liberty Safeguards

Cannot be placed under DOLs unless have a mental disorder & incapacity to consent to care and treatment in circumstances amounting to DOL

Must be in RP’s best interests

Right to review by Supervisory Body or appeal to Court of Protection, non means tested legal aid

COP can authorise DOL for those not in hospital or care home e.g. Supported living placementsSlide11

DOL Safeguards Processes

Managing Authority of hospital, care home can issue urgent DOL authorisation- 7 calendar days

Apply for standard authorisation to Local Authority Supervisory Body

Best Interests Assessor- age, best interests, no refusal by attorney, capacity assessments

Mental Health Assessor- mental health, eligibility for DOLs v MHA, capacity assessments

Supervisory Body – Local Authority can extend urgent for max 7 days; grant authorisation max 12ms

Authorisers – senior LA staff, quasi judicial role (

Neary

judgment)

Independent Mental Capacity Advocate for RP with no family

Relevant Person’s Representative, family or paid after authorisation.Slide12

DOLS RP’s Representative & BIA

RPR -critical role to support RP

Paid RPRs more likely to challenge authorisation in the Court of Protection

BIAs –though employed by LA are human rights focused, challenge abuse, restrictive practices, give RP/family a voice

BIAs recommend conditions to reduce restrictive practices; resolve disputes with RP & familySlide13

Interface MHA and informal detention /DOLs

Informal patients in psychiatric wards, no right to review by Tribunal

Since SC Cheshire West decision, cohort of informal incapacitated patients shrinking- detained under MHA or under DOLS

Schedule 1A interface DOLs/MHA a disaster

DOLS processes too complex, Care Homes not completing forms correctly, not embedded yetSlide14

Case example MHA/MCA

Woman aged 80, confused, self neglecting, dementia, sectioned for assessment s2 MHA; after 28 days becomes a “voluntary “patient. No detailed capacity assessment completed as to whether she had capacity to consent to treatment and to stay.

Under continuous supervision and not free to leave so placed under DOLS Authorisation

Psychiatrist wants Social Care to move her to care home. Woman wants to go home but concerns whether she will accept care package. Adult Care willing to trial her at home. Independent Mental Capacity Advocate appointed as decision on residence required. IMCA pushes for a trial at home.

If not agreed, Social Care may move her to care home, but will need DOLS authorisation at the care home and will have to apply to Court to decide where she will live permanently Slide15

A PCT v LDV [2013] EWHC 272 (Fam) –capacity for DOL

Has the Assessor considered the concrete situation & RP’s understanding of their situation?

RP must understand some information about the context in which the DOL is being imposed, i.e. the care /treatment regime, level of supervision, restraint, medication.Slide16

Restraint ROI Bill

S27 impose limit on decision-making

representatives

(DMRs) concerning restraint.

DMR

is considered to

do more than restrain

a

RP

if

deprives RP of liberty as per A 5

of

ECHR.

This shall not prejudice S69

of

MHA (seclusion/ bodily restraint restrictions)

S41 similar power for attorney for welfare decisions under EPA

S53 similar rules for informal decision maker

No reference to seclusion or chemical restraintSlide17

Part 9 Detention-related safeguards ROI

Section 67 ADMCB- Where an issue arises in an application to the Court as to whether a person who lacks capacity is

suffering from a mental disorder

, (as defined by MHA) the

procedures under MHA 2001 shall be followed

as respects any proposal to

detain

i.e. detain within ECHR.

Not restricted to wards of court

Lacks capacity for what- to consent to MH detention? Note narrow MHA definitionSlide18

Definition of Mental Disorder under MHA

means mental illness,

severe

dementia or

significant

intellectual disability where—

because of that condition, there is a serious likelihood of RP causing immediate and serious harm to him/herself or to others or

because of its severity, P’s judgment is so impaired that failure to admit to an approved centre would be likely to lead to a serious deterioration or would prevent appropriate treatment and it would likely benefit P.Slide19

Implications of s67

“

The MHA procedures will be followed

” – will the Judge order RP to be detained or transfer RP to the Mental Health Commission so that a Tribunal can be organised?

Difficulty in finalising ADMCB interface with MHA until review of MHA 2001 completed – will MHA be amended or use ADMCB to amend MHA re RPs without DM capacity?Slide20

Review of detention of wards

Section 68 -review of

W

ardship

orders detaining RP in an MHA

approved centre

.

If satisfied that RP still suffering from a MHA mental disorder,

Wardship

Court may order continued detention in the approved detention centre or an alternative centre for 3 months.

2

nd

or subsequent review - order for 6 months. Before review, obtain clinical director’s views, and from treating and independent psychiatrists

Only discharged from detention if no longer suffering from a (MHA defined) mental disorderSlide21

Review of detention of wards ROI- 2

S69 similar powers of review for RPs in an institution other than an approved centre

Institution- not defined but s56(6) refers to a hospital or other institution for the care or treatment of mentally ill or intellectually disabled persons and any public or private institution for the care of elderly or infirm persons

S67 MHA—(1) Subject to sections 12/22 a person suffering from a mental disorder shall not be detained in any place other than an approved centre (but wards can be under Bill!). Slide22

Review of detention of wards -3

Why cannot the Court refer these cases to the Tribunal for review of detention?

Does not say RP can seek review or that psychiatrist should initiate review if RP no longer suffering from mental disorder

No reference to obtaining RP’s views / preferences directly or via independent mental health advocate or social work or psychology reportsSlide23

Detention and wards of court –recommendations

Wards under

wardship

detention orders should be prioritised for Court review on Bill’s implementation.

MHA advocates to work with wards to ascertain preferences

Create a panel of “DOL assessors” (similar to Best Interests Assessors) to review detained wards pre implementation, assess capacity on a range of decisions, ready to provide report to Court so not just a medical model though still need Dr’s report- A5

Panel to include doctors, nurses, social workers independent of service provider,

Access to legal advice/ aid/ Court friendSlide24

What about those under DOL but not wardship?

If not under s67 or MHA criteria, then no DOL procedures

For A5 ECHR compliance, need safeguards re DOL in congregated housing; residential centres, for voluntary MH patients etc

Who will assess capacity for DOL?

Suggest Panel system for authorisation - who will create and supervise Panel? Right of appeal to Tribunal or Court?

Where will Panel sit -within HSE, OPG, MHC?

Which agency will oversee authorisations , investigate RPs under DOL in care homes/ community placements, issue reports on restraint/ DOL– an expanded MHC or HIQA? Slide25

Forensic risks

MCA /DOLS not designed for risk of harm by RP to others unlike MHA

Local authorities fund 24: 7 packages for sex offenders with Intellectual Disability to prevent offending- is this preventative detention unlawful and not to be under DOLs ?

But see Y County Council v ZZ [2012] MHLO 179

J Council v GU & Ors [2012] EWHC 3531Slide26

Challenges to implementation ADMCB

Resources

- require resourced OPG, Advocacy service and Courts, Bill will be undermined in implementation

Professionals need training to change practice, to let go of best interests paradigm and accede to RP’s preferences

Deal with concerns about professional liability and impact on duty of care- what will the Coroner say?

Education of RPs and carers on understanding complex mechanisms under Bill and how to implement them

Difficulties in persuading organisations that DM capacity is a continuum not black and whiteSlide27

Key provisions NI Mental Capacity Bill

Capacity- diagnostic and functional tests-

over 16

Need an impairment to intervene compulsorily

No compulsory MH treatment for those with capacity to refuse

Best interests – less restrictive principle

If has capacity, RP nominates Nominated Person (NP), if not, their carer -not a decision maker but can object to serious interventions, compulsory MH treatment & certain physical treatments Slide28

Detention/deprivation of liberty grounds

DOL may be required in a hospital/ care home where care or treatment available; or

When being taken, transferred or returned there (no need for authorisation if emergency)

For compulsory treatment with serious consequences

For conditions imposed during approved absence in communitySlide29

NI Bill - authorisations

Need

authorisation

for DOL, attendance for treatment/ residence requirements (similar to MH Guardianship) or compulsory serious treatment where NP objects and P resists or a DOL occurs

Independent advocate for those without capacity or if NM objects to intervention

If advocate objects, Trust decide interventions but reviewed by TribunalSlide30

Authorisation for DOL

HSC panel may only authorise a DOL in circumstances in which a failure to do would create a risk of serious harm to P or of serious physical harm to others; and

DOL is proportionate to likelihood/ seriousness of harm; P lacks capacity and in his/her best interests

Trust Panel must have report, care plan & P’s views

May have oral hearing but to issue in 7 working days

Short term detention allowed for physical/ mental examination of P without capacity only if a report including medical report completed by approved Social WorkerSlide31

Authorisation for DOL

Interim authorisation 28 days

Panel issues authorisation for up to 6 months, then for a year

Appeals against authorisations go to Review Tribunal (similar to MHRT) -if RP does not ask for review, automatic review after a while

Criminal offence if DOL unlawful

Placements other than care home /hospital- need High Court DOL order Slide32

Comments on NI Bill

No compulsory MH treatment for those with capacity to refuse - will challenge professionals concerned about extent of their duty of care

Create assessments tools to correctly assess capacity to refuse mental health treatment, because of the public’s perceived risk of harm to others and to patient

Extend authorisation procedures for DOL in community placements rather than use Court

Welcome amendments to criminal justice laws to address disproportionate no. of people with disabilities caught up in that system.Slide33

House of Lords Report-lessons

Simplify DOLs law and

processes

Clarify interface between MHA and DOLs

Social Care risk averse; NHS paternalistic

Move from protection to empowerment

Insufficient respect for RP’s wishes

Least restrictive options not sufficiently explored

Create effective oversight of Supervisory BodiesSlide34

Conclusion

Do not over estimate time required for changing cultures & embedding new practices

Consider which agency will champion implementation, not duplicating HIQA or MHC (or RQIA) or perhaps an Office of Public Advocate?

Need resources to meet expectations of RPs, their families and professionals

Need courage and compassion to drive change, work collaboratively & tackle abuse of PWDsSlide35

Thank you!Any Questions?