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How does the law protect
people with dementia?
Rachel Griffiths
Mental Capacity Act Implementation
Manager, SCIE
European Convention on Human
Mental Health Act 1983
Human Rights Act 1998
Mental Capacity Act 2005
Deprivation of Liberty Safeguards (2009)
All this law is aimed at protecting the basic
human rights of vulnerable people, who share
with all of us the right to live our lives as we
choose to do.
These laws are intended to keep interference
by others in our lives to a minimum
If we might lack capacity for some decisions at
some times, those others might need to make
decisions for us, but they must act in a
way that is proportionate
Grand laws to protect small
Where, after all, do human rights begin? In
small places, close to home – so close and so
small that they cannot be seen on any map of
the world. Yet they are the world of the
individual person…
(Eleanor Roosevelt, 1958)
A judge links human rights law with
Munby LJ
Human dignity is all the more important for
people whose freedom of action and choice is
curtailed, whether by law or by circumstances
such as disability.
The Convention is a living instrument...We need
to be able to use it to promote respect for the
inherent dignity of all human beings but
especially those who are most vulnerable to
having that dignity ignored.
Why adopt human rights as the overarching umbrella?
Five Principles of the Mental
Capacity Act 2005
Presumption of capacity
Do all you can to increase capacity
Unwise or eccentric decisions don’t of
themselves mean a person lacks capacity
If a person lacks capacity to make a decision, the
decision must be made in the person’s best
Seek the least restrictive option to meet the
What is ‘mental capacity’ and how
do we assess it?
Capacity is the ability to make a decision at the
time needs to be made.
Two – Stage Test:
Is there an impairment /disturbance in the
functioning of mind or brain? And, if so,
Does that prevent the decision being made?
4 Steps: understand, retain, use/weigh, and
If a person lacks capacity to make a
decision, follow the Best Interests track
To make a Best Interests decision:
If P is likely to regain capacity, can it wait?
Avoid discrimination/stereotyping;
Involve P in the decision-making;
P’s past and present views, wishes, culture;
Any Advance Decision or Lasting Power of
Attorney who can make that decision;
Views of those who care for the welfare of P;
Least restrictive option
Staff authority to act comes from the
The principle:
Where the conditions are satisfied, a person
who does an act in connection with an
incapacitated person’s care or treatment is
regarded as having the person’s consent for
that act.
Negligent acts are not protected, nor are acts
that would be illegal if done with consent.
New criminal offences: neglect or illtreatment of person lacking capacity
Conviction under
MCA s. 44,
The Green Goblin
Conditions for protection from
The act is ‘in connection with’ another
person’s care or treatment;
You have taken ‘reasonable steps’ to establish
whether the person lacks capacity;
You ‘reasonably believe’ the person lacks
You ‘reasonably believe’ that the proposed act
is in the person’s best interests.
(MCA s.5)
You are using restraint if you:
Use force (or threaten to use force) to make
someone do something they are resisting;
Restrict a person’s freedom of movement
whether they are resisting or not.
(MCA s.6(4))
Conditions for restraint
If you use restraint you are protected under
the MCA if you ‘reasonably believe’:
BOTH that it is necessary to use restraint in
order to prevent harm to the person, AND
That the restraining act is a proportionate
response to the likelihood of the person
suffering harm and the seriousness of this
The effects of restriction must not amount to
deprivation of liberty (unless
specifically authorised).
Munby on the importance of what
the person wants or doesn’t want
The wishes and feelings of the incapacitated
person are an important element in determining
what is, or is not, in his best interests.
Where he is actively opposed to a course of
action, the benefits which it holds for him will
have to be carefully weighed against the
disadvantages of going against his wishes,
especially if force is required to do this.
Human rights encourage
personalised “least restrictive” care
Rights that are at risk in health and
social care settings
Right to life
Right not to be subjected to torture or inhuman
or degrading treatment or punishment
Liberty and security of person
Right to a private and family life
Article 8: Right to a private and family
Freedom to text, phone, e-mail
or write
Right to choose own friends
Access to fresh air and
Privacy in washing and toilet
Privacy for visits
Confidentiality of medical
Freedom from intrusion into
private life
Freedom from searches of
living space and person
Decisions to interfere with human
rights need very careful thought
Many rights can be interfered with to some
extent, (such as treating a person in their best
interests when they lack capacity to give
consent), but any interference must be:
Allowed by law (inhuman and degrading
treatment is NEVER allowed by law)
Necessary (in light of risks if you don’t act)
Proportionate (don’t use a sledgehammer to
crack a nut)
Lord Justice Munby on Outcomes:
Physical health and safety can sometimes be
bought at too high a price in happiness and
emotional welfare. The emphasis must be on
sensible risk appraisal, not striving to avoid all
risk whatever the price, but instead seeking a
proper balance and being willing to tolerate
manageable or acceptable risks...in particular to
achieve the vital good of P’s happiness. What
good is it making someone safer if it
merely makes them miserable?
Encourage Challenges against
“Rules of the House”
“fossilisation” of risk:
You can’t have a phone because one person
was abused by direct-sellers; you can’t go out
unaccompanied because one resident got lost
and had an accident; your family can’t bring in a
curry because somebody once got a tummy
We need person-centred care plans rather
than blanket rules
Whose job is it to protect human
We are required to monitor
and report on a number of
quality measures to different
Can human rights feel like
“just another thing to juggle’”?
Staff and family can all be
“human rights champions”
proactive in scrutinising how
people are treated.
We all share the responsibility
‘All that is required for evil to prevail is for good
people to do nothing.’
(adapted from Edmund Burke, 1770)
What does this mean for
professionals and for care providers?
How can they support
whistle blowers?
Get it right with FREDA
FREDA principles really help:
Curtice & Exworthy The Psychiatrist (2010)
34: 150 - 156
Some tentative suggestions about
how to create a FREDA culture
Piloting (Oxfordshire Health and Social Care, and
care providers via the Care Providers Alliance)
suggests that a relatively small amount of
training empowers people fast
Combined with further resources, FREDA makes
sense, doesn’t overwhelm with “big law”
Empowers service users, relatives and
professionals as “human rights champions”,
promoting better decision-making, more
Sources of Help and Information
 Codes of Practice to MCA and DOLS;
 Department of Justice website:
 www.justice.gov.uk/guidance
 Department of Health website:
SCIE website: