Application of MCA: Two practical examples

Ashcroft’s experience of
applying MCA
Surrey Care Association
Practical Application of MCA
26 February 2014
Practical application of MCA:
Organisational learning in action!
Two examples:
• Compliance with CQC Outcome 2: Consent to care and
• Application to Court of Protection for permission to use
Compliance with CQC Outcome 2:
Consent to care and treatment
Prior to recent inspections:
• Best interest decisions made as determined proportionate
by Service Managers
• Decision-making processes defined by Service Managers
according to Ashcroft guidance and practice
• Embedded good practice to obtain consent and agreement
to choices and decisions
• MCS training provided for all staff – module within
Safeguarding training
Non-compliance reported at several
Standard CQC wording used – feels pretty heavy:
“ Where people did not have capacity the provider did not
always act in accordance with legal requirements”
“ People who use the service cannot be confident that their
human rights will always be respected”
“ The provider had not taken appropriate steps to establish
where service users lacked capacity and act in accordance
with the best interests of the person, in line with the
What evidence did CQC use to draw
these conclusions?
Some findings reasonable…
• No standard MCA
• Inconsistent documentation
of best interest decisions
• Staff not always
demonstrating clear
understanding of MCA
• No stand-alone training in
but perhaps not all…
• Impact on others - locked
drinks cupboard
• Conflicting priorities restricted windows
• Triangulation – locked doors
• Proportionality – decoration
• Comment on placements
• Inconsistency
So what have we learned?
• Requirement to carry out mental capacity assessment in
standard form for all the people we support
• All practices reviewed, particularly those which are longstanding
• Best interest decisions made (or confirmed) where
deemed appropriate and proportionate
• Best interest decisions documented in consistent format
• Stand-alone MCA training for all staff to raise level of
knowledge and awareness
• Internal audit processes improved to ensure all Services
remain compliant
Application of the DOL Safeguards for
a man requiring physical restraint
Outline of situation:
• Man living in own home, supported on 2:1 basis (Supported Living)
• Episode of life-threatening self-injurious behaviour
• Held by two staff for several days
• Family and Ashcroft agree that use of loose material ties to hands
is in best interest
• Psychologist fails to attend or support use of ties
• Acute services unwilling/unable to provide place of safety
• Ashcroft applies to Court of Protection for permission to use loose
material ties
Salient points about the Deprivation of
Liberty Safeguards
• Amendment to the Mental Capacity Act 2005
• Allows restraint to be used but only if in person’s best interest
• Extra safeguards if person being deprived of his/her liberty
• Safeguards apply to care homes and hospitals – ‘Standard
Authorisation’ required from local authority or health body
• Important safeguard is that the person has someone appointed
with legal powers to represent them
• In care homes and hospitals provision for emergency deprivation
via ‘Urgent Authorisation’ process
• Safeguards do not apply to people in Supported Living - the only
option if there is to be a deprivation of liberty is to make an
application to the Court of Protection
COP application process
• Straightforward process using standard forms
• Requirement for assessment of capacity for to be
completed (Form COP3) – completed by Doctor
• Fees of £400 – funded by Ashcroft
• COP have a backlog, but circumvented by ‘Fast-track’
• COP responded within 48 hours
Progression of the Application
• Interim Order granted immediately by Senior Judge Lush
determining that in best interest to apply loose material ties
• Official Solicitor engaged to act for the man (funded by him)
• First hearing held one month later - interim order extended
whilst further information obtained
• Judge ordered CCG and family joined as parties to the action
• Second hearing held two months later - Psychologist ordered to
carry out mental capacity assessment and CCG required to
comment on the deprivation
• Third hearing held two months later - open permission granted
for Ashcroft to apply loose material ties, subject to any party reapplying to Court
So what have we learned?
• Better understanding of DOLS overall
• Clarity about how DOLS relates to care homes and hospitals vs.
Supported Living
• Decisive action required if all parties cannot agree on a best
interest decision (although likely that COP permission is required
irrespective of this agreement)
• Ambiguity about what deprivation actually means and whether it
exists in a specific set of circumstances
• Unusual, but COP can be accessed by Service Providers
• COP process straightforward, supportive and non-threatening
• If you want to stay on the right side of the law, get a Court Order!
Contact details
David Holmes
Chairman, Ashcroft
01293 826200
[email protected]
Sharon Raeburn
Joint Managing Director, Ashcroft
01293 826200
[email protected]

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