Mental Capacity Act

Laughing my socks off

By | Mental Capacity Act, The Care Act 2014 | No Comments

Would you expect to go to a conference on the Mental Capacity and Mental Health Acts and have a rip roaring time? Silly question. It’s always lovely to be surprised in life although I would have enjoyed the subject matter either way: On Friday I went to the 2015 Annual Taking Stock conference at the Royal Northern College of Music in Manchester where we heard fascinating updates on areas such as the Care Act and Advocacy, the Law Commission’s proposals for informal incapacitated admissions, and issues with the revised Mental Health Act Code of Practice. As usual I will bullet point what I regarded as the most pertinent insights:

Neil Allen of the wonderful 39 Essex Chambers (for all things mental capacity and Deprivation of Liberty Safeguards, subscribe to their newsletter) asked ‘Informal Incapacitated Admissions, a Bygone Era?’ and answered his own question by stating ‘Yes!’ and walking off stage. it transpires that the Law Commission are attempting to integrate the situation with DoLS into Mental Health Act practice (a quarter of a million people in the UK are currently deprived of their liberty according to Neil). Neil’s view was that the proposals as they currently stand will introduce a kind of Business class service for people who are objecting to their detention (as they would be entitled to better safeguards) and Economy for those who do not object. Surely then this would lead to a ridiculous situation where people would object in order to receive a higher standard of professional attention, which could also impact on entitlement to free 117 aftercare. He urged us to email the Law Commission with our concerns. Read More

The Dementia Challenge Conference

By | Media, Mental Capacity Act | No Comments

On Tuesday I was thrilled to be on the panel at the Dementia Challenge Conference in London where a brilliant range of speakers educated us about various dementia related topics. Here I pick out some of the points that I found the most interesting and encouraging:

Alistair Burns could not be with us but sent us a video in which he informed us that diagnosis rates are improving – up from 42% to 61% in the last year. We are also making huge inroads with Dementia Friendly communities and in particular the Dementia Friends project which has now attracted 1 million ‘friends’.

Sally Warren, Deputy Chief Inspector for CQC, illustrated ways in which CQC is looking to improve on the findings of their “Cracks in the Pathway” report which looked into transitions from hospitals to homes. They discovered that 90% of care was variable and there were few examples of cases where people with dementia had encountered good practice every step of the way. They have launched a campaign called ‘Good Enough for Mum’ which emphasises that all care must be as good as we would want for our dearly loved relatives. CQC has also introduced a section into all hospital reports titled ‘Meeting people with dementia’s needs’. Read More

Whistleblowing – abuse of powers of attorney

By | Court of Protection news, Media, Mental Capacity Act | No Comments

There was a brilliant edition of Money Box Live on Radio Four yesterday when Alan Eccles, the Public Guardian, answered enquiries from the public about the workings of his office (Office of the Public Guardian – administrative arm of the Court of Protection). He highlighted a helpine for people who want to report attorneys they believe are misusing their powers in any way. The number is 0115 934 2777 and he assured listeners that their identity would remain confidential if they needed to ring that helpline. Read More

Jimmy Hill and power of attorney

By | Mental Capacity Act, Paying for Care | No Comments

I was very sad to read that Jimmy Hill has been diagnosed with dementia. There has been much press coverage about the fact that his wife and solicitor are joint power of attorney for his financial affairs. Several comments from the family have been published which suggest that as a result of this financial arrangement they have been cut out of the decision making process when it comes to their father’s care however, this should not be the case. A health professional should consider the opinions of the children in their parent’s care needs and living arrangements if the children are keen to have a conversation about those matters. Certainly NOT having power of attorney for finances and property should not be any issue, the attorney facilitates the payment for services, the attorney does not dictate the nature of those services, nor should they. Good care decisions are based on the best interests of the person with dementia and anyone who loves that person has the right to have their views heard and considered.

Update on Deprivation of Liberty Safeguards

By | Mental Capacity Act | No Comments

The concept of the Deprivation of Liberty Safeguards was being considered when I first started working directly with the laws that concern our client group, so I will always have a particular fondness for them! For the first time, legislators were recognising the fact that we should not force people into care homes or any other environment when they are protesting loudly against that decision. Of course it was not satisfactory to section all these people under the Mental Health Act so they were falling into the ‘Bournewood Gap’, a phrase named after the court case that highlighted the issue. The Safeguards provide a system whereby the best interests of the person are assessed and recorded before a decision to deprive them of their liberty is formalised.

The Safeguards were formally introduced in 2009/10 and a recent NHS Centre report reveals the following about where we are today (taken from Journal of Legal Action Group February 2013):

There has been a year on year increase in the number of applications completed for deprivation of liberty safeguards since they were first introduced.

Dementia accounted for 53% of all applications.

The East Midlands had the highest rate of applications at 51 per 100,000 whilst London had the lowest rate at just 17 per 100,000.

When I have time (!) I will post some information about the cases that have come to Court since 2009 which are often the best indicators of how a new law is developing in practice.

Republic of Ireland discussing a Mental Capacity Act

By | Mental Capacity Act | No Comments

I spoke with the Legal Policy Officer of the Alzheimer’s Society last week to talk about my experience of the success (or otherwise!) of the 2005 Mental Capacity Act. My verdict was that the Code of Practice is great, really accessible and gives excellent case examples to illustrate its points; during training sessions I thought that people liked the clarity the four stage test of capacity provided for difficult situations where cognition was in question; the move from Enduring Power of Attorney to Lasting Powers has increased (greatly) the amount of paperwork people need to get to grips with and this has subsequently added to the solicitors fees for people who choose to use a solicitor. However, there is no doubt that the option to appoint a Health and Welfare attorney has been useful for people whose attorney might otherwise have struggled to gain access to care plans and medical records, particularly in continuing care cases; rules around restraint are reiterated rather than changed by the Act but health professionals on my training courses again appeared to appreciate further guidance; and finally, the introduction of Advance Decisions into statute law (thereby lending them more weight) has hopefully highlighted their advantages and encouraged people to talk about making them.

On the downside, and my gripe about most community care legislation, is that people do not know enough about it – hence my passion to spread the word! Also, there is no doubt that Deprivation of Liberty Safeguards are confusing for people (I will post more on the three cases I have recently read about next month in an attempt to provide some clarity). Apparently Ireland are not even looking at this yet though – let’s hope that when/if they do, they learn from our mistakes…

Mental Capacity Act – how far we’ve come

By | Media, Mental Capacity Act | No Comments

Listening to an old You&Yours this morning which was broadcast due to a journalists’ strike, I realised that we have come a long way in 40 years with regards to disabled people’s rights – huge strides as regards physical disability but also for my client group: people who may lack mental capacity.

The Mental Capacity Act of 2005 legislated that people who struggle to make decisions for themselves due to some form of cognitive impairment must be supported to make their own decisions wherever possible. The Act sets out a 4 stage test for capacity:

1. Does the person understand the information involved (for example, do they know what a will entails) ?

2. Can the person weigh up the pros and cons of the decision they are making (for example can they see that leaving more of their estate to one child than another may cause upset further down the line)?

3. Can the person retain the information for as long as is necessary to make the decision (this could be a half hour window) ?

4. Can they communicate their decision?

This test is extremely helpful in all number of situations although obviously cannot be religiously applied for EVERY decision the person makes, there just isn’t time! Where we still have a way to go is getting the message out there – how many people with dementia and their carers actually know about the law and the rights it gives them? Not enough, in my experience.

Comment on BBC’s ‘Exile’

By | Media, Mental Capacity Act | No Comments

A harrowingly believable portrait of dementia maybe but a harrowingly bad portrayal of a solicitor meeting with a person who their family claims has memory loss…

It does annoy me when dramas about dementia have the opportunity to educate people about legal matters and instead convey a false impression of what might happen in certain circumstances, but I should get out more, granted. The BBC’s new series, Exile, starring Jim Broadbent and Jon Simm included a scene in which the family, desperately in debt due to caring duties, attempt to access their father’s money with the help of a solicitor. Of course we know that family or friends of an elderly person cannot simply rock up at their local solicitors firm, announce ‘This person has memory problems’ and expect the solicitor to believe them however, any solicitor worth their salt is going to do more than say to the person in question ‘And do you agree with this course of action?’ This is not a test for capacity which would stand up under any close inspection.
The Mental Capacity Act 2005 lays out the 4 stage test for capacity – does the person understand the information being given to them? Can the person weigh up the pros and cons of the decision they are making? Can the person retain the information for as long as is necessary to make a decision? Can they communicate their decision?

So in the case of Sam [Jim Broadbent] the solicitor should have probed further – did Sam understand that there were outstanding debts that needed paying which were causing his primary carer (his daughter) a great deal of stress? Did he understand the disadvantages of denying her any of his quite substantial savings to clear these debts? Could he elaborate at all on why his answer to the question ‘Do you agree with this course of action?’ was ‘No’.

Let’s face it, most people when asked if they would like someone to take charge of their finances would think ‘Not really thanks all the same’. For people with dementia who are living in an often confusing and scary world the prospect of losing control of one’s money, even to a family member, is terrifying.

Had the solicitor been satisfied that Sam had capacity to deny his daughter access to his money she could still have gone ahead and applied to be his Deputy for Property and Finances. The Court of Protection would then determine, if Sam contested the application, whether or not the daughter ought to be appointed or not. Just because someone is having a ‘good day’ and presents well does not mean that they are coping and managing their lives as best they might given the appopriate support and a one question capacity test does not cut the mustard in such circumstances.