MCA case study - hypothetical example

Produced by: NHS London Purchased Healthcare Team

Background summary

There are occasions when the Clinical Commissioning Group responsible for a patient will need to take steps and intervene in the best interest for a patient who lacks capacity to make informed decisions for them-selves. This is particularly relevant where the costs for the patients care are being met fully by the CCG Continuing Healthcare or complex care budget, typically with the patient receiving care in the private sector i.e. a non NHS provider. In such circumstances it will be important to ensure the correct procedural steps are followed by CCG staff ensure compliance with the Act.

The following is a hypothetical example; presented as a case study, of how the CCG could become involved in a complex case and need to approach the Courts for authorisation for planned actions.

The CCG was involved with an adult male patient (A) who had severe learning disabilities. He was placed outside of the home area in a specialist private hospital. Following a number of safeguarding alerts at the placement the decision was made to move the patient back to the local area. The patent was assessed as lacking the capacity to make that decision for himself, so the CCG assumed the role as decision maker for the purposes of conducting a Best Interest assessment. The decision maker was the CCG CHC team leader with significant support from the CCG Adult safeguarding lead nurse.

Initially, progress towards moving A was straightforward; a repeat capacity assessment was undertaken using specialist speech and language therapy staff to provide A with all practical means to participate in the assessment process. This also included using pictures and Makaton symbols that A was familiar with. Despite this A was not able to participate in the decision making process.

A had a supportive family who were involved in the decision making process. They could understand why the CCG wanted to move A given the safeguarding concerns and they were in agreement to the move taking place. However, when a specialist placement was identified the family of A changed their opinion and informed clinical staff they were no-longer in support of the proposed move and wanted A to remain in his placement.

The CCG clinical staff met with the family on a number of occasions trying to ascertain there reasons for a change of mind on the move without success. Although the family did not have a Lasting Power of Attorney for health and care for A, the CCG wanted to ensure they were involved as fully as possible in the BI decision making process.

After all possible involvement the family remained resolute that A should not be moved so the CCG safeguarding lead decided that a formal Best Interest meeting would take place and if the decision maker concluded that it was in A’s Best Interest to move to the identified new placement, the CCG would approach the Court of Protection to ask for authorisation. The safeguarding lead met with family members and fully explained the proposed meeting and went through the various possible outcomes with an indication of what would happen in each situation including an approach to the Court of Protection if necessary.

Best Interest Meeting

It was necessary to devise a template for recording the outcome of the meeting with guidance notes for the meeting chair and decision maker. This was to ensure if the case proceeded to the Court of Protection the actions taken by the CCG and clinical team as well as the rationales for decisions made were clearly recorded in a way that demonstrated compliance with the MCA. The template, guidance notes and format of the meeting were all agreed with the CCG solicitors and legal Counsel beforehand. It was agreed with the legal team that if the outcome of the BI meeting was to move A, an urgent application to the Court of Protection would be made.

The meeting was chaired by the CCG safeguarding nurse and the decision maker was the CCG head of CHC and complex care. The meeting was conducted similar to a safeguarding meeting with all attendees signing a confidentiality note and undertaking to store records securely. The meeting was attended by clinical staff who were familiar with A (including the care coordinator and case manager) and family members who were present throughout the whole meeting. Each attendee gave an account of their involvement with A and their views and opinions on the proposed placement. The family members for A gave their views and opinions and also reiterated their refusal to cooperate with the planned move. Clinical staff from the unit where A was resident were unable to attend the meeting but gave a verbal statement to the effect that the CCG should follow the wishes of A’s family.

The meeting was conducted following each key stage of the MCA with particular emphasis on the capacity assessment (which concluded A could not make the decision for himself) and using all possible means to involve A in the decision making process (including using a specialist speech and language therapist to aid with communication and using picture signs.

At the end of the meeting the decision maker gave consideration to all views put forward and gave their decision based upon what was considered to be in the BI of A on the balance of probability given all the views and opinions put forward. That was that A should move to the proposed specialist placement.

A’s family were unhappy with the decision made and refused to accept it saying they would cut off all contact with A if he moved. A few days later the chair was contacted by A’s family members saying they had reconsidered their decision and would not oppose the move any further. The transfer went ahead without the need to involve the Court.

Learning points

  1. Although no member of ‘A’s’ family had a lasting power of attorney for health and care it was important to ensure actions taking were in keeping with the learning from L B Hillingdon v Neary [2011] this meant ensuring family members were fully involved in the decision making process, even though they did not agree with the decision finally made.
  2. It was necessary to develop a specific template for recording the BI decision and the one developed took each key point from the BI decision making process from the MCA and required
  3. detailed completion along with rationale and examples. This was to ensure if the records were subsequently needed for Court purposes, they clearly identified how decisions were reached within the framework of the Act.
  4. It was important the chair and decision maker were not the same person to reduce any conflict of interest.
  5. It was helpful to have the BI meeting format, meeting template and guidance notes agreed with the CCG solicitors and legal Counsel before they were used.

About this case study collection

Purpose: The purpose of this document is to share MCA cases that have taken place within London for NHS staff to refer to when dealing with difficult MCA cases.

Audience: Commissioner and Provider staff involved with MCA decision making.

Background: The London NHS Commissioner MCA Board identified a number of tools/documents to support them to gain MCA assurance. One of the requests was to share MCA case studies. This document outlines a number of MCA cases which has been shared by CCG and provider MCA leads across London.

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