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21st April 2017

The Mental Capacity Act and protection from liability

This is my final article (for the time being!) about the changes proposed to the Mental Capacity Act (MCA). The biggest is the introduction of a new framework to replace the deprivation of liberty safeguards (DoLS): I’ve outlined these proposals already, and of course, I’ll tell you more about what happens when the new law is discussed in Parliament… though I have heard that they’ve got a few other things on their plate.

The Law Commission is also suggesting changes to how professionals acquire ‘protection from liability.’ The changes are quite small, and I could argue that what they want is simply to put existing best practice into law and to underline ‘best practice’ by insisting that it is recorded.

They suggest, for certain important decisions, an extra requirement for a full written record, including:

  1. How and why it is believed that the person lacks capacity in relation to the matter in question including:
  • Identification of the impairment or disturbance in the functioning of the person’s brain; and
  • An explanation of why the person is unable to make the decision;
  1. A description of what has been done to work out whether the action is in the person’s best interests;
  2. A description of the person’s wishes, feelings, beliefs or values, so that they are given sufficient weight in making a best interests decision; if the decision conflicts with what has been discovered about the person’s wishes and feelings, there must be an explanation of the reason for that decision;
  3. Confirmation that any duty to provide an advocate has been complied with; and
  4. Confirmation that the act would not be contrary to an advance decision.

The situations that would trigger this extra requirement are:

  • Moving the person to long-term accommodation
  • Restricting the person’s contact with others
  • Serious medical treatment
  • ‘Covert’ treatment, and
  • Any medical treatment against the person’s wishes

Some of these are decisions that are likely to be made by a nurse or care worker (or registered manager, or GP, or dentist). I’d advise everyone making such decisions to think about this question: Where do we get our authority from, to ‘do stuff’ to people who lack capacity to consent?

Authority when people lack capacity to consent

This is where the MCA comes in. As the MCA code of practice points out, ‘every day, millions of acts are done to and for people who lack capacity either to:

  • Take decisions about their own care or treatment, or
  • Consent to someone else caring for them.’ (Code of practice, 6.1).

Such acts range from helping with personal care or eating to life-changing events such as serious medical treatment, or moving into a care setting.

Section five of the MCA provides ‘protection from liability.’ In other words, it protects people who carry out these actions. It stops them being prosecuted for acts that could otherwise be classed as civil wrongs or crimes. By protecting providers and families, from liability, the MCA allows necessary care or treatment to take place just as if the person who lacks capacity has consented to them.

The code explains that ‘to receive protection from liability under section 5, all actions must be related to the care or treatment of the person who lacks capacity to consent.  Before taking action, carers must first reasonably believe that:

  • The person lacks the capacity to make that particular decision at the time it needs to be made, and
  • The action is in the person’s best interests.’ (Code, 6.22).

Clearly, to show how staff came to these ‘reasonable beliefs’, records must make it clear how decisions were reached. The code of practice explains the capacity test and the best interests checklist: do use it.

Protection from liability if restraint is used

There are two extra conditions that must be satisfied for professionals to have protection from liability if someone is restrained. Hence, it’s important to remember the MCA’s definition of restraint. The Act says that a person is restraining another person if they:

  • Use or threaten to use force to make someone do something that they are resisting, or
  • Restrict a person’s freedom of movement, whether they are resisting or not. (Code, 6.40)

And the code goes on: ‘Any action intended to restrain a person who lacks capacity will not attract protection from liability unless the following two conditions are met:

  • The person talking action must reasonably believe that restraint is necessary to prevent harm to the person who lacks capacity, and
  • The amount or type of restraint used and the amount of time it lasts must be a proportionate response to the likelihood and seriousness of harm.’ (Code, 6.41)

I think you’ll see where this is going. To be sure of protection from liability for all decisions, particularly if the person is sometimes subject to restraint in their best interests, care plans must be made and recorded within the MCA framework.

Know when there is a risk of deprivation of liberty

It is clear in the code of practice, and in the new proposals, that providers are not protected from liability if they deprive someone of their liberty without extra authorisation. Currently, this means applying for authorisation under the deprivation of liberty safeguards (DoLS) or, for supported living or shared lives schemes, from the Court of Protection.

Remember that the ‘acid test’ says that, where a person lacks capacity to consent to the arrangements needed to give them necessary care or treatment, they are deprived of their liberty if they are both:

  • Subject to continuous supervision and control, and
  • Not free to leave

This is different from the definition of restraint. Not every restraint is a deprivation of liberty – it doesn’t meet the acid test – but every deprivation of liberty will include restraint. This is why you need to record both individual instances of restraint, and whether the care plan as a whole meets the acid test.

Care plan: get it right, record it right

Staff are protected from liability and will be under the new proposals, provided they follow the care plan. This does mean, though, that the care plan must be worked out properly, respecting the person’s rights to be valued as an individual and providing a sound basis for all staff to have this essential protection.

And the proposals to strengthen recording of how decisions are made are a good thing. I suggest we adopt the spirit of them right now. That way, our recording will give a clear narrative of how we reached the least restrictive and most person-centred way to care for individuals, and also provide protection from liability for us and our staff.

Find out more from the code: https://www.gov.uk/government/publications/mental-capacity-act-code-of-practice

*All information is correct at the time of publishing

Rachel Griffiths

Mental Capacity and Human Rights Specialist

Rachel has huge experience and knowledge in the area of Mental Capacity, including how to recognise deprivation of liberty, when and how to assess capacity and how to go about making decisions in someone’s best interests. She is nationally recognised as a leading voice with regards to Mental Capacity, and is involved with setting the agenda as well as providing advice and information about Mental Capacity. The information, guidance and support that Rachel provides helps to ensure that the way people work is within the law and recognises that the person using services is always at the centre of any decisions made. Read more

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