Legal Aspects of Dementia
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Dementia Training Project
The aim of Homeless Link’s Dementia Training Project (October 2016 - March 2017) was to up-skill
the housing support sector, enabling them to provide support that improves quality of life for older
people with dementia, and reducing the need for more intensive and expensive forms of care and
support.
Five courses were designed for, and piloted with, housing and homelessness staff who are not
dementia specialists, and who may have little or no previous training about dementia.
The materials from two courses – ‘Legal Aspects of Dementia’ and ‘Dementia and Housing’ – have
been made available via the Homeless Link website to support providers in developing and delivering
their own local sessions.
The material in this course does not constitute legal advice. We advise that the course is delivered by
someone who has a working knowledge of the legislation and practice covered by the material.
Please email any requests for in-house training delivery to: [email protected]
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Learning objectives
By the end of the session participants will be able to:
1. Define their responsibilities under the Mental Capacity Act and Deprivation
of Liberty Safeguards.
These include:
• the application of the five principles
• capacity assessments
• best interest decision-making
• signing of tenancies
• awareness of Powers of Attorney
2. Explain their safeguarding responsibilities under the Care Act
3. List their responsibilities under the Equality Act to avoid and eliminate
discrimination, harassment and victimisation; also to promote positive
action and equality of opportunity in service provision.
4. To be more aware of how these legal considerations impact on the support
given to people with Dementia
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Plan for the day
10.00
Introductions, objectives & programme
10.30
The Mental Capacity Act (MCA) & the 5 principles
11.15
MCA assessments
11.30
Break
11.45
Best interest decision-making
12.15
The MCA and housing – tenancy issues and Powers of Attorney – case studies
1.00
Lunch
1.30
Deprivation of Liberty Safeguards
2.15
Safeguarding. The legal framework and Care Act principles
2.40
Responsibilities to report, record and manage on-going cases
3.00
Break
3.15
Case Studies for MCA and Safeguarding
4.00
Equality Act requirements and responsibilities
4.20
Evaluation and close
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Mental capacity
Consider what the consequences would be if…
•
Someone who is able to decide or act for themselves is not permitted to
•
Someone who is unable to decide or act for themselves has no-one who will
do this on their behalf or in their best interests.
The Mental Capacity Act 2005 provides a legal framework for these to be
managed
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The 5 principles
1. A person must be assumed to have capacity unless it is established
that s/he lacks capacity
2. A person is not to be treated as unable to make a decision unless all
practical steps to help her/him to do so have been taken without
success
3. A person is not to be treated as unable to make a decision merely
because he makes an unwise decision
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The 5 principles
4. 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 interest
5. Before the act is done, or the decision is made, regard must be had as
to whether the purpose for which it is needed can be effectively
achieved in a way that is less restrictive of the person’s rights and
freedom of action
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Decisions covered by the MCA
The type of decisions covered by the act range from:
 Day to day decisions, e.g. what to eat, wear, time to get up
 More serious decisions like where to live and signing a tenancy,
what to do with your finances, having an operation
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What triggers an assessment?
Remember Principles 1, 2 & 3
Assessment might be prompted by:
• The person’s behaviour
• Their circumstances
• Concerns raised by someone else
Always assess in relation to the specific decision to be made.
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The two stage test
Diagnostic Test
“Is there an impairment of, or disturbance in, the functioning of the person’s
mind or brain?” (e.g. a dementia diagnosis)
If so, move onto:
Functional Test
“Is the impairment or disturbance sufficient that the person lacks the capacity to
make that particular decision?”
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Functional test
With all possible help, is the person able to understand the information relevant
to the decision?
OR
Are they able to retain the information long enough to make the decision?
OR
Are they able to weigh the information as part of the decision making process?
OR
Are they able to communicate the decision in any way?
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Who can be the assessor &
decision- maker?
Varies depending on the individual’s circumstance and the type of decision
involved.
Housing Officers and staff can, if they are closely involved with the
individual at the time
Managers and clinicians will sometimes need to be the decision maker if it
is seen to have major implications
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Best interest checklist
When making decisions:
 Encourage participation
 Identify all relevant circumstances
 Find out the person’s views
 Avoid discrimination
 Assess whether the person might regain capacity
 Have good motives and no ‘quality of life’ assumptions when decision
concerns life-sustaining treatment
 Consult others
 Avoid restricting the person’s rights
 Take all of this into account
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Consulting others
Finding out the person’s views and wishes:
o Valid and applicable advance decision to refuse treatment
o An advance statement of wishes
o Enduring or Lasting Power of Attorney (LPA)
o Court Deputy
o Anyone previously named by the individual
o Close relatives, friends, carers
o Independent Mental Capacity Advocate (IMCA)
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Recording the decision
 The Assessment and best interest decision should be recorded on your
organisational form or in client notes
 Use the good practice guidelines available
 The decision record should be kept in the client’s file
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Issuing tenancies and licences
When a referral or nomination is made for an individual to be housed and there
is reason to doubt their capacity to understand and sign a tenancy, or licence
agreement, Adult Services should arrange a Best Interest meeting to assess
the individual’s capacity.
If the outcome of this assessment is that the individual does lack capacity,
arrangements can be put in place for an Appointee or Deputy to sign the
tenancy/licence on the individual’s behalf.
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Termination of tenancies and
licences
o If either the housing provider or the tenant wishes to end their tenancy or
licence and you believe the person lacks capacity, then considerable care
must be taken and advice sought
o This is to protect you and the adult at risk and to avoid safeguarding concerns
being raised
o It would be helpful to have an organisational policy and guidance notes on this
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Deprivation of liberty safeguards
•
Adults in care homes , hospitals in England & Wales
•
Staff exercising control over care, movement, assessments, treatment and
person is under continuous supervision and not free to leave
•
Proper procedure - Managing and Supervisory Authorities
•
Least restrictive option and difference between a restriction and a
deprivation
•
Recent reviews - West Cheshire Case and Law Commission proposals
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Deprivation of liberty in other
settings
If the person is not in a care home or hospital and they do not have capacity to
make a particular decision and you feel that in their best interests, they should
be deprived of their liberty, then you must apply direct to the Court of Protection
At present, the DoLS do not apply to supported housing arrangements or to
peoples own homes
If someone is deprived of their liberty without authorisation, a
safeguarding alert will be raised and a criminal offence could have been
committed
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Care Act 2014
Replaces ‘No Secrets’ as statutory guidance for Safeguarding Adults
Establishes 6 principles:
• Empowerment
• Prevention
• Proportionality
• Protection
• Partnership
• Accountability
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Definition of an adult at risk of
abuse
Safeguarding duties apply to an adult (18+) who:
 Has needs for care and support (whether or not the LA is meeting those
needs); and
 Is experiencing , or is at risk of, abuse or neglect; and
 As a result of those care and support needs is unable to protect themselves
from either the risk of, or the experience of abuse or neglect
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Categories of abuse
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Physical
Sexual
Modern Slavery
Domestic Violence
Psychological/Emotional
Financial or material
Neglect and acts of omission
Discriminatory
Organisational
Self - neglect
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Typical procedure if abuse
disclosed or suspected
o
Inform Line Manager (LM) or safeguarding Champion within 24 hours
o
If decision to proceed then inform LA Adult Services, Police if a possible
crime, and/or CQC if necessary
o
Complete incident form and attach any supporting evidence and send to LM
o
LM to check and pass onto Champion; to then send to LA
o
An internal planning meeting may be held
o
Copies of all paperwork to be placed on Clients file and safeguarding
database
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Other considerations
o
Is the potential perpetrator a member of staff or another client or customer?
o
What does the adult at risk want you to do?
o
Do you feel the adult at risk lacks capacity to make a decision about the
issue?
o
Does the adult at risk need an advocate?
o
Does anyone else need to be informed? If so, who?
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Follow-up action
o
If you have reported a concern then you should be informed of any followup action
o
Should a staff member receive an invitation to attend a safeguarding panel
or be interviewed about a safeguarding concern, they should speak to their
line manager or a Champion
o
Attendance at panels should be considered on a case by case basis, but
where the staff member has had a lot of contact with the family, they should
be in a position to contribute to the process. All agencies give a view and
the Independent Chair makes the final decision
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Adult safeguarding process
•
Referral received by LA - action within 24 hours
•
Risk decision taken to determine level of seriousness and risk
•
Where thresholds reached, then a Strategy discussion must be held within 7
working days
•
Safeguarding assessment and “Section 42 enquiry” leading to a possible
investigation.
•
If appropriate; a case conference and Safeguarding Plan within 21 working
days
•
Review within a further 3 months
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Equality Act 2010
•
Dementia as a form of disability, is a protected characteristic under the Act.
•
This means it is illegal to discriminate in the provision of services
(directly or indirectly)
•
Also means that you can take positive action to target people with dementia
and help redress inequalities
•
The Act applies to all service providers including housing providers
(whether LA or not)
•
Requirement to make reasonable changes to the way a service is provided
where a person would otherwise experience a “substantial disadvantage”
•
Provides protection from disability related harassment or victimisation
•
Local authorities and employers have wider duties under the Act
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