Lawtrack
GPS trackers for people
with mental incapacity
Hilary Cragg
Specialist Elderly & Vulnerable Client
Advisor
Twitter: @hilarycragg
Blog: http://elderlylaw.wordpress.com
6 April 2017
Tel: 01752 664444
The Mental Capacity Act –
The Principles
1.
2.
3.
4.
5.
A person must be assumed to have capacity unless it is
established that he lacks capacity.
A person is not to be treated as unable to make a decision
unless all practicable steps to help him to do so have been
taken without success.
A person is not to be treated as unable to make a decision
merely because he makes an unwise decision.
An act done, or decision made, under this Act for or on behalf
of a person who lacks capacity must be done, or made, in his
best interests.
Before the act is done, or the decision is made, regard must be had
to whether the purpose for which it is needed can be as effectively
achieved in a way that is less restrictive of the person's rights and
freedom of action.
Tel: 01752 664444
The Test of Capacity
Stage 1:
Does the person have an impairment of, or disturbance in the
function of their mind or brain?
If the answer is yes go on to stage 2, if the answer is no, then
they have capacity to make decisions.
Stage 2:
Does the impairment or disturbance mean that the
person is unable to make a specific decision? This stage can only
be taken if you have taken all practical steps to support the
person in making this decision and this has failed.
A person is considered to be unable to make a decision if they
cannot on the balance of probabilities:
1. Understand information about the decision to be made.
2. Retain the information in their mind.
3. Weigh that information as part of the decision making process.
4. Communicate their decision (by talking, sign language or other
means).
Tel: 01752 664444
Best Interests
a)
b)
c)
d)
e)
f)
g)
Working out a person’s best interests cannot be based on their age,
appearance, condition or behaviour.
All relevant circumstances should be considered when working out
someone’s best interests.
Every effort should be made to encourage and enable the person
who lacks capacity to take part in making the decisions.
If there is a chance that the person will regain the capacity to make
a particular decision, then it may be possible to put off the decision
until later if it is not urgent.
Special considerations apply to life sustaining treatment.
The person’s past and present wishes and feeling, beliefs and values
should be taken into account
The views of other people who are close to the person who lacks
capacity should be considered, as well as the views of an attorney or
deputy.
Tel: 01752 664444
Prime Minister’s Dementia
Challenge Team – rural
dementia awareness
• The lawfulness of “tagging”
• Dementia is not a criminal offence…..
Tel: 01752 664444
Consultation
• Senior Judge
Denzil Lush (Court
of Protection – now
retired)
Tel: 01752 664444
• Clare de Than
(Senior Lecturer,
City Law School,
London)
Ann Pascoe
Dementia Friendly
Communities, Scotland
Tel: 01752 664444
The issues
•
•
•
•
•
Capacity to consent or refuse
Previously expressed views
H&W Attorney / Deputy to consent
Best Interests Decision (s5 MCA)
Human Rights issues
Tel: 01752 664444
Capacity to consent
• Since capacity is time and decision specific
– Does the person have the mental capacity to
consent to wearing a GPS tracker?
• Weighing up the decision
– Understand the decision in the positive
– Understand the decision in the negative
– Understand if no decision is made
Tel: 01752 664444
What is an unwise
decision?
Tel: 01752 664444
Unwise Decision
Where someone else would
make a different choice!
Tel: 01752 664444
Previously
expressed
views
For GPS trackers, not
likely!
Tel: 01752 664444
Attorney / Deputy
• Is there a Health & Welfare Attorney or
Deputy that can consent to the use of a
GPS tracker?
– Check the document!
• Check for Preferences / Instructions (Restrictions /
Guidance)
• Is the attorney appointed jointly?
Tel: 01752 664444
MCA Best Interests
Decision
• “An act done in the care or treatment of
another person”
• “That P lacks capacity in relation to the
matter” and
• “That it will be in P’s best interests for this
act to be done”
Tel: 01752 664444
House of Lords Post Legislative
Scrutiny of MCA
• The empowering ethos of the Act has not been
widely implemented
• The evidence presented to us concerns the health
and social care sectors principally. In those
sectors the prevailing cultures of paternalism (in
health) and risk-aversion (in social care) have
prevented the Act from becoming widely known
or embedded
• A fundamental change of attitudes among
professionals is needed in order to move from
protection and paternalism to enablement and
empowerment
Tel: 01752 664444
Best Interests
For THIS person – not a generic
person!
Tel: 01752 664444
Human Rights issues
• Article 2 – Right to Life
• Article 8 – Right to private & family life
• Article 11 – Right to free association and
assembly
Tel: 01752 664444
A little background…
Helmsdale –
Remote and rural Scottish
Highlands
Latitude 58˚N
Population 740
Nearest city 70 miles away
Tel: 01752 664444
The results of the trial in
Scotland
–
• One person
with dementia did not have insight to
understand wife’s concern when he was gone for
long periods – she no longer worries and has
been able to come off blood pressure medication.
• The other person with dementia had been too
afraid to go out alone he now feels secure
enough to go out without his wife, his
independence has increased, giving him a new
lease of life.
• Semantics are important – people don’t want to
be tagged, they want freedom to roam.
Tel: 01752 664444
The Dartmoor Trial
10 November 2015
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The Dartmoor Trial
• The lost person
was found within
20 mins
• It would take
around 1 hour
from alerting the
authorities
Tel: 01752 664444
Thank you
Tel: 01752 664444