DoLS Code of Practice para 4.33 The purpose of the mental health assessment is to establish whether the relevant person is suffering from a mental dis

Transcription

1 Deprivation of Liberty Safeguards (DoLS) Module 2: Slides 2 Mental Health, Mental Capacity, Eligibility ibilit Assessments

2 DoLS Code of Practice para 4.33 The purpose of the mental health assessment is to establish whether the relevant person is suffering from a mental disorder within the meaning of the Mental Health Act 1983 A person with a learning disability can receive deprivation of liberty safeguards, ards if appropriate p and the other assessments are positive, whether or not their disability is associated with abnormally aggressive or seriously irresponsible ibl conduct This is not an assessment to determine whether the person requires mental health treatment 2

3 A registered medical practitioner must have: (a) Section 12 Mental Health Act Approval OR (b) At least three years post registration ti experience in the diagnosis or treatment of mental disorder AND (c) Successfully completed the Royal College of Psychiatrists i t DoLS Mental Health Assessors training i gp programme 3

4 DoLS SC Code of Practice paras 4.14 and 4.15 Supervisory bodies must be satisfied that the assessor has the required ed skills, s, experience, e qualifications and training i required for the role Supervisory bodies must consider the suitability of the assessor appointed to the particular a case, for example e whether they have experience relevant to the person s s condition 4

5 DoLS SCode of Practice para 4.38 Supervisory bodies should consider using a doctor who is eligible ibl to carry out the assessment and who already knows the relevant person to undertake this assessment if they think it would be of benefit This would primarily il arise if a professional involved in the person s s care is considered best placed to carry out a reliable assessment, using their knowledge of the person over a period of time It may also help in reducing any distress that might be caused to the person if they are assessed by somebody they do not know 5

6 Schedule A1 para14 The relevant person meets the mental health requirement if he is suffering from mental disorder d (within the meaning of the Mental Health Act, but disregarding g any exclusion for persons with learning disability) An exclusion for persons with learning disability is any provision of the Mental Health Act which provides for a person with learning disability not to be regarded d as suffering from mental disorder d for one or more purposes p of that Act 6

7 (1) The provisions of this Act shall have effect with respect to the reception, care and treatment t t of mentally disordered d d patients, the management of their property p and other related matters (2) In this Act mental disorder means any disorder or disability of the mind; and mentally disordered d d shall be construed accordingly; gy and other expressions shall have the meanings assigned to them in section 145 below (3) Dependence on alcohol l or drugs is not considered d to be a disorder or disability of the mind for the purposes p of subsection (2) above 7

8 Reference Guide to the Mental Health Act 1.7 Mental disorder d is defined d for the purposes p of the Act ctas any ydsode disorder or dsab disability tyo of the mind Although h the Act does not define these terms any further, it is likely l that t conditions falling within the definition iti could include: Organic disorders Functional py psychoses Neurotic, personality and habit disordersd Learning disabilities and autistic spectrum disorders 8

9 DoLS Code of Practice para 4.39 The mental health assessor is required ed to consider how the mental health of the person being assessed is likely l to be affected by being deprived d of their liberty, and to report their conclusions to the best interests es s assessor The mental health and best interests t assessments cannot tb be carried out tb by the same person 9

10 Factors to consider If relevant person is likely l to be distressed d by being i deprived of liberty in a hospital / care home this will affect the assessment as to whether a DoLS authorisation ti will be in their best interests t The mental health assessor also needs to consider the effect on mental health of an authorisation not being issued 10

11 Friday, 10 June 2011 Mark Neary: 'They didn't understand d Steven. They saw me as a fly in the ointment' i t t After a bitter battle with his local council, a father has finally got his son back. Jerome Taylor meets him When Mark Neary asked the London Borough of Hillingdon to look after his son for three days as he recovered from a nasty bout of 'flu he had little idea that t the next 12 months of his life would be consumed by bureaucratic and legal l nightmares that nearly cost him his family. Steven, a 21-year-old autistic man with severe learning disabilities, is now living back home with his father in Uxbridge. Yet for almost a year he was held against his parent's will in a bitter dispute with care workers.

12 MCA Sch A1 para39 (3) The [best interests] assessor must have regard to all of the following (a) the conclusions which the mental health assessor has notified to the best interests assessor (b) any relevant needs assessment (c) any relevant e care plan 12

13 DoLS Code of Practice paras 4.16 and 4.18 Assessors act as individual id professionals and are personally accountable for their decisions i Managing authorities and supervisory bodies must not dictate or seek to influence their decisions Nobody can or should carry out an assessment unless they are protected t against any liabilities that t might arise in connection with carrying out the assessment 13

14 Mental health assessment must be performed by a doctor (registered medical practitioner) i who has undertaken special training i It is desirable for the assessing doctor to have experience in the person s s condition and preferably previous acquaintance of them Mental disorder d is defined d as any disorder d or disability of the mind in the Mental Health Act 1983 Guidance is available in the Code of Practice and Reference Guide to the Mental Health Act

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16 The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 rule 6 A person is eligible ibl to carry out a mental capacity assessment if that t person is eligible ibl to carry out (a) a mental health assessment; or (b) a best interests assessment 16

17 There may be benefit in the assessment being undertaken by a professional who has previous acquaintance with the person being assessed 17

18 A person is unable to make a decision i for himself if he is unable (a)to understand d the information i relevant to the decision, i (b) to retain that t information, (c) to use or weigh that t information as part of the process of making the decision, or (d) to communicate his decision i (whether by talking, using sign language age or any other means). 18

19 A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate p to his circumstances (using simple language, g visual aids or any other means) The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision The information relevant to a decision i includes information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision i 19

20 Do they understand whether or not he should be accommodated d in the relevant hospital or care home for the purposes p of being given the relevant care or treatment? t t? No specific case law, so s.3 MCA test must be applied to this situation ti A decision i is made on the balance of probabilities biliti 20

21 It requires not merely an actual understanding di of the information in question, but the ability to appreciate the consequences ences of the choice, and of the other choices open to the patient. t Bartlett P (2011) Med Law Rev 1-34

22 Questions to consider: Does the person have general understanding of what the decision i is and why they are being asked to make it? Do they understand d the consequences of making, or not making, the decision? Are they able to understand the information relevant to the decision? i Can they assess the relative importance of the information? i Can they use the information as part of the decision making process? Can they communicate their decision? i 22

23 In assessing capacity you should have regard to Chapter 4 Mental Capacity Act Code of Practice How does the Act define a person s s capacity and how should capacity be assessed? 23

24 Read any available background documents Speak to family and close friends Explain to relevant person in the most appropriate p way what is required Check understanding di after a few minutes 24

25 Avoid questions which can be answered yes or no Don t be misled by maintained i social façade or preserved skills It may be necessary to repeat the procedure to confirm the result 25

26 Is someone that they trust present to reassure them? Do they need a translator? t Are they yp physically y as well as they can be? Has the process of establishing a psychiatric i diagnosis i upset them? Have you chosen the best time, day and place to undertake the assessment? 26

27 Have you communicated with them in the most effective way? Would pictures or written information help? Do they have their glasses? Are they clean? Is their hearing aid working? Is the television i / radio turned off? Would oud it help ep for information o be presented ed to them on an audio tape or video? 27

28 Deprivation of liberty is an ongoing g process so being able to make a one-offoff decision i may not be relevant 28

29 Is the person s s ability to reason about their place of residence affected by psychosis, neurosis or any other mental disorder? d Is any disorder d controlled as well as it can be? 29

30 Before deciding that someone lacks capacity because of communication difficulties, it is important t to make all practical and appropriate p efforts to help them communicate This might call for the involvement of speech and language g therapists, t specialists in non-verbal communication or other professionals Chapter 3 of the Mental Capacity Act Code of Practice gives advice for communicating with people p who have specific difficulties or cognitive problems 30

31 Where do they think they are? Do they wish to be somewhere else? If so, where? Do they remember where their home was prior to entering hospital/care home? Do they recognise their limitations? it ti What support would they require to live independently? Do they have realistic expectations ti of families /others? 31

32 It is always important t to try to involve the relevant person s s representative ti as much as possible in the process of assessment, but they cannot be forced to undergo an assessment of capacity In the end the assessor has to make a decision i on the best available a ab evidence 32

33 Mental capacity and the ability to make a decision i are defined d in the Mental Capacity Act Practitioners must have regard to the Principles i of the Act and the Code of Practice when undertaking capacity assessments No specific case law, so s.3 MCA test t must be applied to the decision i of where e to reside 33

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35 Determines whether: The patient t is legally ll eligible ibl to be detained d under the DOLS procedures. Specifically must consider: Whether the patient t is already subject to MHA detention ti or conditions and whether an objecting patient t could be subject to s.2 or s.3 MHA detention. 35

36 Sets out the criteria i for ineligibility ibilit that t the eligibility ibilit assessor must apply Access at: l ti gov k pg /2005/9 /schedule/1a / 36

37 Where the eligibility ibilit assessor and best interests t assessors are different persons: (1)The eligibility ibilit assessor must request that t the best interests t assessor provides him with any relevant eligibility ibili information i that the best interests assessor may have (2) The best interests assessor must comply py with any request made under this regulation 37

38 The Mental Capacity (Deprivation of Liberty: Standard Authorisations, Assessments and Ordinary Residence) Regulations 2008 rule 5 A person is eligible to carry out an eligibility assessment if that person is (a) approved under section 12 of the Mental Health Act 1983 and is eligible ibl to carry out a mental health assessment; or (b) an approved mental health professional and is eligible ibl to carry out a best interests t assessment 38

39 DoLS Code of Practice p51 para 4.57 It may well be known in advance of the assessment that a decision i is likely l to have to be made about whether the patient t should be assessed with a view to an application under the Mental Health Act 1983 rather than being made subject to a DoLS authorisation ti In such cases, steps should be taken, where practicable, to arrange assessments in a way that minimises the number of separate interviews i or examinations to which h the person concerned is subject 39

40 Pi is ineligible ibl if:- MCA Sch 1A P is detained d in hospital under MHA P is on leave (s.17), guardianship (s.7) or CTO (s.17a) and is subject to a condition which h conflicts cts with a proposed authorisation ti P is subject to recall conditions under s.17, s.17a or conditional discharge

41 Pi is ineligible ibl if:- MCA Sch 1A The purpose p of deprivation of liberty is treatment t t of mental disorder, d the Mental Health Act criteria i are met, and P objects

42 DoLS cannot be authorised in respect of a person who is: (a) currently detained d under the MHA (iess a474851) (i.e Ss.2,3,4,35,36,37,38,44,45A,47,48,51).,35,36,3,38,, 5,, 8,5 (b) not currently detained but who is subject to conditions under the MHA (eg Ss.7,17,17A), 17A) if the DoLS authorisation ti would conflict with any of the conditions imposed by the relevant MHA regime. See: MCA Sch 1A. Paras 2 to 12; MHA Code of Practice paras

43 DoLS cannot be authorised if: the purpose p of the deprivation of liberty is to treat t mental disorder in hospital, and The patient could be detained under s.2 or 3 MHA and the patient t objects to being admitted d to hospital, or the patient t objects to some or all of the treatment t t they will receive there for mental disorder unless a deputy or donee has validly consented to the treatment t t on behalf of the patient. t Sh1A Sch para

44 See: Sched 1A para a 5(6) In many cases, the incapable patient will still be able to state t their objection If there is reason to think that t a patient t would object, if able to do so, then the patient should be taken to be objecting You must consider the patient s t behaviour, wishes, feelings, beliefs and values when determining whether they object The reasonableness of that t objection is not the issue MHA Code of Practice para

45 GJ v The Foundation Trust [2009] EWHC 2972 (Fam) it is not lawful l for the medical practitioners referred e ed to in [the Mental Health Act], decision i makers under the Mental Capacity Act, treating doctors, social workers or anyone else to proceed on the basis that t they can pick and choose between the two statutory t t regimes as they think fit The Mental Health Act is to have primacy when it applies

46 DoLS/MCA will usually be required to authorise deprivation of liberty in a care home DoLS/MCA will usually be required to authorise deprivation of liberty in hospital for physical treatment t t MHA will usually be required to authorise deprivation of liberty in hospital for treatment of mental illness 46

47 DoLS Code of Practice ce para a 4.56 If the assessor believes e es that the patient is not eligible e [for DoLS], but that t they nevertheless need to be deprived d of liberty, the assessor should take steps to arrange for appropriate action to be taken under the Mental Health Act

48 Ad decision i will illhave to be made as to whether the Mental Health Act or a DoLS authorisation ti under Mental Capacity Act is indicated The DoLS eligibility ibilit assessor must be either an AMHP or a s.12 approved doctor DoLs can be used to detain someone in hospital in order to provide treatment t t for physical disorder d DoLS cannot be used to detain someone in hospital in order to provide treatment for mental disorder if the patient objects to being admitted, d or to the proposed treatment t t for mental disorder d and could be detained d under MHA 48