Teresa – scenario for training

Mental Capacity Act workbook

Commissioned by, and hosted here on the MCA Directory on behalf of, the members of the NHS Eastern Region Safeguarding Adult Forum facilitated by Eleanor Sherwen & Sarah Robinson.

View here online or order a DVD or workbook

Learning outcomes

For participants to recognise that

Teresa’s story

Teresa is a West Indian woman, single, aged 72. She worked at a local business until she retired at 60. A loner, she never really made any friends and rarely told anyone much about herself. She was diagnosed with diabetes just before she retired. She managed her diabetes with diet and later with oral medication. She attended the local church about once a month. She always sat alone and never joined in with any of the social activities. She was polite but not one to initiate conversation. She was known to members of her congregation as a "woman of mystery". In the last two years her behaviour has changed significantly. Her neighbours have been concerned about her odd behaviour such as shouting at the children in the garden and calling for her mother (who has been dead for years). She has had unprovoked outbursts of aggression. On one recent occasion, a neighbour saw her lying, having fallen in the garden and called an ambulance. She was admitted to hospital. She was then moved into a care home after a short hospital admission. This was considered by the multidisciplinary team at the hospital to be the best course of action for Teresa, as her diabetes was not stable and she had become insulin dependent. There were concerns that she had dementia. She was willing only to go for a short stay at the care home initially. This has now become a more permanent arrangement. During her stay her dementia and inability to manage her own medication have become more apparent. An assessment of capacity has been made by the home's manager as part of the care plan. There was only one assessment that wasn't decision specific. This was the evidence used for the Deprivation of Liberty Safeguards (Do LS) application.

Current decision making issues for the professionals involved

As part of the authorisation process for the DoLS, the Best Interests Assessor (BIA) has assessed capacity for the living arrangements. A lack of capacity is concluded, however the BIA has now questioned whether the placement is the least restrictive. The local nursing team is very concerned about the level of risks for this patient if she were to return home. The community nursing team is under considerable pressure in her locality. How should a best interests decision be reached? The District Nurse has called into discuss the matter with the home’s manager.

The ethical decision

The ethical issue for the professionals involved is how to care for Teresa in the least restrictive way whilst acknowledging that there will be some potential risks. For the professionals involved they need to know how far they can go in perhaps making a medical intervention in the person’s best interests when the person is living in their own home. How far can resources be taken into account when considering the best interests options?

Cases from the court of protection

Case M a woman living in a care home where the imca supported her to have her situation heard in court. Decision: despite risks the court allowed her to return home

In the case Re M [2013 EWHC 3456(COP) a diabetic lady who had been resident in a care home from the previous year, lacked capacity about her medical care; her diabetes. However, she wished to go home. This carried risks. She said that if she stayed at the care home she would seriously self-harm. The judge attached considerable weight to her wishes and terminated the DoLS standard authorisation, therefore allowing her to return home with a care package.

Transcript of Case M

Commentary on Case M

Case KK a woman who was resident in a care home but maintained she wanted to go home despite her history of not managing because of her physical and mental health. Decision: the court decided she did have capacity despite professionals’ views of her understanding, therfore she could return home with support

In a case before the Court of Protection CC v KK and STCC [2012] EWHC 2136 (COP) judgement, an elderly woman who was considered to be at risk at home had been subject to DoLS in a care home. However, she maintained she wanted to go home, and there were several assessments of her capacity, concluding she lacked capacity.

However, the judge felt she could understand sufficiently and cautioned against professionals being “risk adverse” he commented 25… [T]here is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective. On the other hand, the court must be equally careful not to be influenced by sympathy for a person’s wholly understandable wish to return home.”

Para 69 KK may lack the capacity to understand and weigh up every nuance or detail. In my judgment, however, she does understand the salient features, and I do not agree that her understanding is "superficial".

Transcript of Case KK

Commentary on Case KK