SCIE opinion - 26 November 2012

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Photograph of Rachel Griffiths

Help for councils over their new mental capacity responsibilities

Expert advice from SCIE's Rachel Griffiths

Working within mental capacity issues and the Mental Capacity Act can be challenging, but it's vital to protect some of the most vulnerable people in society, those adults who lack capacity to decide on matters of their own health and welfare for themselves.. Sometimes, health and social care staff have to restrict peoples' freedoms in their best interests, in order to give them essential care or treatment. It's not something to do lightly, and we need to be extra careful that there is no alternative – especially when the level of restriction might be depriving people of their liberty. This is what the requirements known as the Deprivation of Liberty Safeguards (the Safeguards) are for.

In April, the responsibility for the Safeguards in hospital settings, transfers from primary care trusts (PCTs) to councils. SCIE's Report 62 is a starting point for those PCTs and councils who need to know more. The rights of the vulnerable people, described above, can be best protected if all of those responsible for the handover in April work together. This will include local authorities, hospitals, PCTs and the new clinical commissioning groups (CCGs).

Transferring and taking on responsibilities can feel daunting. Our expert resource can help PCTs and local authorities to create a seamless and high-quality transition and transfer of responsibilities, without staff feeling overwhelmed by the changes.

The resource covers all aspects of the Safeguards, along with plenty of tips and guidance. However, let's look at one area in detail; the role of Best Interest Assessors (BIAs).

Health-employed BIAs have played an important role in the implementation of the Mental Capacity Act in general, as well as within the Safeguards.  In their “day jobs” they have been beacons of good practice in hospitals, making sure that decisions, about people's capacity and best interests, are carried out properly. They are, of course, experts on human rights law relating to restrictions of liberty, so help their employers and colleagues to set the “human rights framework” to ensure that everyone is dealt with in a dignified and lawful manner.

Health trusts and local authorities need to decide if the continuation of such expertise is possible to achieve, following the transfer in April. In contrast, some local authority BIAs may be carrying out assessments in hospitals for the first time, and will need support to understand the environment in which the assessment is taking place. The assessor should also understand the legal context of hospital treatment, and understand the case law relevant to hospital settings.  A BIA should also be able to recognise when it may be appropriate for the hospital to make an application to the Court of Protection under Practice Direction 9e (applications relating to serious medical treatment), rather than simply rely on the Safeguards to protect a patient's human rights.

This is just one example of the detailed help and advice available from SCIE's resource to help in planning the transfer of responsibilities.  I hope that this introduction will inspire those, who will be making the transfer work, to use the resource

April's changes, including the changes in managing the Safeguards, are laid out in the Health and Social Care Act 2012. For more general MCA information, perhaps go to our training and consultancy services or try our e-Learning

Rachel Griffiths is SCIE's Mental Capacity Act Development Manager.

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