Not so very long ago I was delivering training on the Mental Capacity Act and Deprivation of Liberty to a group of workers in a residential home in the West Midlands. The registered manager of the unit was there and when I got to the part about locking doors she said something quite surprising:
“It’s alright Stuart, you can skip this part. It’s not relevant for us.”
I asked her how the issues of locked doors could possibly not be relevant for residential care. She said:
“Because our people don’t go out.”
I asked her why they didn’t go out and she replied:
“Because the doors are locked.”
“Why are the doors locked?” I asked
“Because they’re old.” Came the predictable response.
I’m not really trying to criticise this manager here. I don’t blame her at all for holding this view – it’s rife in UK. Her view is part of a cultural misunderstanding about the duty of Care that has encouraged residential care workers to lock people away for years. So it’s not the people that should be taken to task – it’s the culture. Unfortunately the only way to change the culture is to prosecute the people – hence the new legislation around rights and capacity.
So here’s another principle to consider….
Getting older is not a crime and it is no reason to sentence someone to life imprisonment.
The same is true for learning disability, mental disorder, physical disability etc etc. Social care is not the same as prison and social care workers are not employed to take the place of judges. It is not up to us to decide who can and who cannot exercise the right to liberty.
Care workers can restrict liberty if it’s proportionate and in the person’s best interests to do so but they cannot deprive them of it without authoirsation. This is a major source of confusion and we’ll address the difference between restriction and deprivation in a later article in this series but for now it’s enough to define these principles:
- It is unlawful to deprive someone of their liberty without legal authorisation.
- Care workers can only restrict a person’s liberty as part of their care if the person lacks the capacity to decide and the situation is both proportionate and in their best interests.
- Routine restriction is likely to be a deprivation of liberty(not just restriction) and needs external authorisation
So what do we mean by liberty?
The answer to this question is surprising to many people. Liberty is much more than simply locking doors. Basically all our rights are liberties. They are freedoms which means the same thing. All UK citizens have the right (the liberty) to do certain things and also to be free from certain types of abuse such as assault or discrimination.
Rights are given to us by law and so they can only be removed from us by legal process. This is why so many previously routine practices in social care have had to change – even preventing a person from using the toilet when they want to or from choosing what they would like to wear is a restriction or deprivation of liberty and so we must follow legal process in order to stay within the law.
Don’t panic though – this doesn’t mean that you need to go to court every time you set a menu in residential care. It simply means that you must make sure you follow the new legal procedures ‘in house’ for most decisions. This in because most decisions would amount simply to restriction of liberty – something you can authorise for yourself so long as you understand and can justify why you are doing what you do.
To make sense of this we need to talk briefly about the Mental Capacity Act 2005.
The Mental Capacity Act came into effect in 2007. The ‘Deprivation of Liberty Safeguards’ took effect in April 2009. Both are based upon the Bournewood judgement in the European Court of Human Rights (HL vs UK).
http://www.communitycare.co.uk/Articles/2009/09/02/112480/the-bournewood-case.html
They radically alter how we must deal with people in our care. Many previously routine care practices could now be unlawful.
Principles of the Mental Capacity Act
At the heart of the Mental Capacity Act 2005 are five underpinning principles:
- An assumption of capacity – until it can be shown that the adult cannot make their own decisions;
- The right for individuals to be supported to make their own decisions – people must be given all appropriate help before anyone concludes that they cannot make their own decisions;
- That individuals have the right to make eccentric or unwise decisions;
- Best interests – anything done for or on behalf of people without capacity must be in their best interests and;
- Least restrictive intervention – anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.
Essentially this means that before we take away a person’s right to make their own decisions we must be able to show that they cannot decide for themselves because they lack the capacity to do so. It is not enough to say that we thought they were making a mistake – that is their right. The only starting point is the assessment of capacity – not diagnosis or unwise decision-making. After all we all have the right to make unwise decisions – that’s how it should be.
So how do we assess a person’s capacity?
First we need to realise that capacity assessments only apply to a person’s ability to make this particular decision at this particular time.
Having capacity means being able to perform the four stages of decision-making. In other words can the person:
- understand the information relevant to the decision;
- retain that information long enough to decide;
- Use and Weigh that information;
- Communicate their decision.
Only if we can reasonably show that a person lacks the capacity to decide for themselves may we presume to decide for them. Even then it’s more than simply doing what we think is right – there’s a specific checklist that we need to follow when working out what is right. This is called the Best Interests checklist and is defined in the Mental Capacity Act code of practice.
http://www.dca.gov.uk/menincap/legis.htm#codeofpractice
The checklist includes:
- Equal consideration and non-discrimination;
- Considering all relevant circumstances and information (including written information);
- The likelihood of the person regaining capacity;
- Permitting and encouraging participation;
- Special consideration for life-sustaining treatment;
- Advance decisions;
- The person’s wishes and feelings, beliefs and values;
- Lasting Powers of Attorney;
- The views of other people.
Bear in mind that the obligation to consult relatives etc does not mean that you must do what they tell you to. There are certain formal circumstances where people can tell you what NOT to do (refuse consent under a Lasting Power of Attorney for example) but nobody can tell you to do anything that you think is professionally inappropriate.
Remember also that this is a delicate issue because of confidentiality. However, if we can speak to others we must in order to get a proper feel for what would be in that person’s best interests as an individual.
Do not do this without consent if the service-user has capacity to decide for themselves.
So to summarize the points raised in this second part of the series:
- It is unlawful to deprive someone of their liberty without legal authorisation.
- Care workers can only restrict a person’s liberty as part of their care if the person lacks the capacity to decide and the situation is both proportionate and in their best interests.
- Routine restriction is likely to be a deprivation of liberty(not just restriction) and needs external authorisation
- Liberty means the right to self-determination
- Capacity means the ability to make this particular decision at this particular time
- People with capacity to choose can do so unless a formal, legal reason exists to prevent them such as a court order or the Mental Health Act
- The Mental Capacity Act protects people’s rights to choose
- If the person lacks capacity then in most cases the decision-maker will be the person delivering the care or treatment
- Follow the best interests checklist when making decisions for other people who lack the capacity to decide for themselves.
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