The Department of Health has renewed warnings over a lack of
access to independent advocacy for people who lack mental
capacity.
In a
circular published this week, the DH said
fewer people than expected were receiving the services of an
independent mental capacity advocate (IMCA), to support them in
important decisions about medical treatment or
accommodation.
Under the Mental Capacity Act 2005, councils and NHS bodies have
a duty to instruct and consult an IMCA in such decisions where the
person lacking capacity has no family or friends to support
them.
Extension of role
The
warnings echo concerns raised by the DH last
June, and come ahead of the extension of the role of
IMCAs next week to support people who lack capacity and are
assessed as requiring treatment or care that involves a
deprivation of liberty.
The
deprivation of liberty safeguards, which
come into force on 1 April, are designed to ensure liberty is
only deprived in the best interests of the service user, to
prevent arbitrary detention and allow people to challenge
decisions.
Their overall purpose is to ensure treatment and care plans
comply with the European Convention on Human Rights.
Bournewood case
They were inspired by the case of HL, an autistic man who was
detained unlawfully in Bournewood Hospital, Surrey in 1997.
Under the safeguards, a hospital or care home - the "managing
authority" - must apply to a primary care trust or local authority
- the supervisory body - respectively for a deprivation of
liberty.
The supervisory body must then conduct six assessments to
confirm that the deprivation is lawful:-
- An age assessment, to confirm that the person is over 18.
- A no refusals assessment, to confirm the treatment or care
decision does not conflict with a decision made on the person's
behalf by an attorney or deputy, or an advanced decision the
service user had made themselves when they possessed capacity.
- A mental capacity assessment, to confirm the person lacks
capacity to consent to the treatment or care plan.
- A mental health assessment, to check whether they have a mental
disorder.
- An eligibility assessment, to confirm whether they are eligible
to be deprived of their liberty.
- A best interests assessment, to confirm that the deprivation is
in their best interests, is necessary to prevent them coming to
harm and is proportionate.
All six tests must be met
Only if all six tests are passed can an authorisation, which
must last no longer than 12 months, be granted by the PCT or
council.
In emergencies, a care home or hospital can order an urgent
authorisation to deprive someone of their liberty but must then
secure a standard authorisation from the PCT or council within
seven days.
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More information
Department of Health information on the Mental
Capacity Act