Promote Good Practice in Handling information
1. Personal data shall be processed fairly and lawfully
2. personal data shall be obtained only for one or more specified and lawful purposed.
3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposed for which they are processed.
4. Personal data shall be accurate and where necessary, kept up to date.
5. Personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes.
6. Personal data shall be processed in accordance with the rights of data subjects under this Act.
7. Appropriate technical and organisational measures shall be taken against unauthorised or unlawful processing of personal data and against accidental loss or destruction of or damage to personal data.
8. Personal data shall not be transferred to a country or territory outside the European Economic Area unless that country or territory ensures and adequate level of protection for the rights and freedoms of data subjects in relation to the processing of personal data.
Under the sixth Data Protection principle, data subjects have the right to: see data held on themselves. They must apply in writing and pay a small fee(often around £10). When a request is made to access records the company must respond to the request within forty days.
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The Freedom of Information Act
In Jan 2005 the Freedom of Information Act came fully into force and is an act that allows the public the right of access to official recorded information held by public authorities and includes information held by Companies House. It also sets out exemptions from that right. Its aim is to promote openness in the public sector which includes government departments such as Companies House. The Act help the public to get a better understanding of how public authorities carry out their duties, why they make their decisions and how they spent their money.
Confidentiality polices (Acehomecare)
At the agency I am employed by they have specific policies tailored to their service users and employees.
The Human Rights Act 1988 – Article 8
Article 8 is a broad ranging right the is often closely connected with other rights such as freedom of religion, freedom of expression, freedom of association and the right to respect for property. The obligation of the State under Article 8 is to refrain from interfering with the right itself and also to take some positive measures e.g. in the case of data protection: Respect for private and confidential information, particularly the storing and sharing of such information The right not to be subject to unlawful state surveillance
Respect for privacy when one has a reasonable expectation of privacy The right to control the dissemination of information about one’s private life, including photographs taken covertly
The Health and Social Care Act 2012
This is an act of Parliament of the United Kingdom. It is is the most extensive reorganisation of the structure of the National Health Service in England to date. It proposes to abolish NHS primary care trusts(PCTs) and Strategic Health Authorities (SHAs). Thereafter £60 to £80 billion of commissioning or health care funds will be transferred from the abolished PCTs to several hundred clinical commissioning groups, partly run by the general practitioners(GPs) in England. Section 263 – the information centre must prepare and publish a code of practice to be followed in relation to the collection, analysis, publication and other dissemination of confidential information concerning or in connection with the provision of health services or of adult social care in England.
The Mental Capacity Act 2005
This act was set up in order to provide a framework to provide protection for people who cannot make decisions for themselves. It contains provision for assessing whether people have the mental capacity to make decision, procedures for making decision on behalf of people who lack mental capacity and safeguards. The underlying philosophy of the MCA is that any decision make or action taken, on behalf of someone who lacks the capacity to make the decision or act for themselves much be made in their best interests.
The MCA came into force on 1 October 2007. It is supported by a Code of Practice. The briefing will look at the definition of capacity and the structures and safeguards provided by the MCA.
The MCA Code of Practice
The Code of Practice to the MCA is an official document that places certain legal duties on health and social care professionals. It also offers more general guidance and information to anyone caring for someone who may lack capacity to make a decision. The MCA should be interpreted using the Code of Practice, which gives explanations and examples of the MCA’s provisions. To whom does the MCA apply?
The MCA applies in England and Wales. It affects anyone whose mental capacity to make decisions is affected by (what the MCA refers to as) “an impairment of, or a disturbance in the functioning of, the mind or brain.” In some cases, a person’s capacity may be permanently affected, perhaps because they have a form of dementia, a learning disability or have suffered a brain injury. But in others, the person’s capacity might be affected only for a temporary period, perhaps because they are confused or unconscious.
It must be remembered that just because a person has a mental health diagnosis or is detained under the Mental Health Act 1983 does not necessarily mean that they lack capacity to make decisions for themselves. The MCA applies to people with mental health problems only when they experience a mental health problem that affects their ability to make a particular decision. For some people, the ability to make certain decisions is permanently affected as a result of their experience of mental illness. However, many people who experience mental health problems are capable of making all of their own decisions. For others, the ability to make some decisions is affected occasionally and only for short periods. The MCA principles
The MCA is governed by five core principles. These can be summarised as follows: Presumption of capacity (section 1(2) MCA).Every adult has the right to make their own decisions if they have the capacity to do so. Family carers and healthcare or social care staff must assume that a person has the capacity to make decisions, unless it can be established that the person does not have capacity Maximising decision making capacity (section 1(3) MCA). People should receive support to help them make their own decisions. Before concluding that someone lacks capacity to make a particular decision, it is important to take all possible steps to try to help them reach a decision themselves. Right to make unwise decisions (section 1(4) MCA).
People have the right to make decisions that others might think are unwise. A person who makes a decision that others think is unwise should not automatically be labelled as lacking the capacity to make a decision. Best interests (section 1(5) MCA). Any act done for, or any decision made on behalf of, someone who lacks capacity must be in their best interests. Least restrictive option (section 1(6) MCA). Any act done for, or any decision made on behalf of, someone who lacks capacity should be the least restrictive option possible. What does “lacking capacity” mean?
Section 2 of the MCA states: “…a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”. The impairment or disturbance can be permanent or temporary. The phrases ‘in relation to a matter’ and ‘at the material time’ indicate that capacity must be assessed on a decision-by-decision basis. Capacity is not a permanent status and so people should not be described as having or lacking capacity. Instead, when considering someone’s mental capacity a health or social care professional should ask, “Is this person, at this particular time, capable of making this particular decision?” Some people may have fluctuating capacity because their mental health changes from day to day.
For example, a person who hears distressing voices may be unable to make a certain decision when the voices are at their most distressing but be able to make the same decision on a day when they are not hearing the voices. The level of capacity needed by a person also depends on the decision to be made. For example, a person probably needs a lower level of mental capacity to make decisions about everyday matters, such as what to eat or where to go, than they do when they are deciding whether to buy a new home or get married. Section 3 of the MCA provides a fuller definition of how to assess whether someone lacks capacity to make a decision. It states that a person is unable to make a decision if he or she is unable to do one or more of the following things: Understand the information relevant to the decision
Retain the information for long enough to be able to make a decision Use or weigh up the information as part of the process of making the decision Communicate the decision by any possible method, such as talking, using sign language, squeezing someone’s hand and so on. The Code of Practice to the MCA also explains what does not mean that someone lacks capacity. A person must not be assumed to lack capacity because of: Their age
Their appearance
Any mental health diagnosis they may have
Any other disability or medical condition they may have. How is a person’s capacity assessed?
Anyone intending to take an action or make a decision on behalf of someone else must first assess that person’s capacity to take that action or make that decision for him or herself. The MCA requires that the decision-maker must have a reasonable belief that the person they are helping lacks capacity to make the decision in question. In assessing someone’s capacity two things must be remembered at all times: The principles governing the MCA (see section 4 of this briefing). This means that anyone assessing a person’s capacity must start from the presumption that the person has capacity, must help the person to make a decision, must allow the person to make an unwise decision and, if the person lacks capacity, must take a decision on their behalf that is in the person’s best interests and the least restrictive option possible The definition of lacking capacity in section 2 of the MCA (see above).
Where straightforward day to day actions and decisions need to be taken, it may be the person’s friends and family who make an assessment. Where more difficult decisions have to be made, such as giving consent to medical treatment, a more formal assessment of the person’s capacity may have to be undertaken by a professional, for example a doctor. It must be remembered that the same principles apply to life-changing decisions as they do to routine decisions. What happens if a person lacks the capacity to make a particular decision?
The MCA creates formal structures to allow people to plan for what should happen if they ever lose their capacity to make particular decision. If someone has not made such plans and at some point loses their capacity to make a particular decision, the MCA says that someone else can make that decision. This could be anyone – a friend, a relative, an informal carer, a professional carer, a doctor, a social worker, a nurse and so on. Even if someone makes a decision on behalf of a person who lacks capacity, that person should still be involved as much as possible in the decision-making process. How are best interest decisions made?
Any decision taken on someone else’s behalf must be in that person’s best interests and must restrict the person’s freedom as little as possible. The MCA does not provide a definition of ‘best interests’ but section 4 sets out a check-list of issues that should be considered by anyone taking an action or decision on behalf of someone who lacks capacity. A person making a decision on behalf of someone else must:
Consider all the relevant circumstances
Consider whether and when the person will have capacity to make the decision in the future and whether to put off making the decision immediately (for example, if the person is experiencing severe mental distress, it may be that this distress will ease in the near future so that the person will be able to make their own decisions) Support the person’s participation in acts done for him and decisions affecting him Consider the person’s expressed wishes and feelings, beliefs and values and other factors that the person would be likely to consider Take into account the views of carers, people with an interest in the person’s welfare, or those appointed to act for the person. This is not an exhaustive list: there may be other relevant considerations depending on the situation. A person making a decision on behalf of someone else must not: Base the best interests decision on unjustified assumptions based on age, appearance, medical condition or behaviour Make a decision about life-sustaining treatment “motivated by a desire to bring about his death”. The Deprivation of Liberty Safeguards
If someone lacks the capacity to make decisions about their care and it is decided that it is in their best interests for them to be deprived of their liberty, the decision-maker must follow an authorisation process before the person can be lawfully deprived of their liberty. A deprivation of liberty that has not been validly authorised will be unlawful. The authorisation process is governed by the Deprivation of Liberty Safeguards, which were introduced by the Mental Health Act 2007. For more information on the Deprivation of Liberty Safeguards see Mental Capacity Act: Deprivation of Liberty Safeguards. Powers and duties of decision makers
Legal protection
Section 5 of the MCA gives legal protection to people who take actions and decisions in connection with the care and treatment of someone who lacks capacity to deal with their own care and treatment. In order to be protected the decision-maker must follow the steps set out in section 8 of this briefing. This means that they must establish that the person lacks the capacity to make the decision and then make the decision in the person’s best interests. However, section 5 of the MCA does not give someone the power to deprive a person who lacks capacity of their liberty (see R (Sessay) v South London and Maudsley NHS Foundation Trust [2011]). Restraint
Section 6 of the MCA allows a person who lacks the capacity to make a particular decision to be physically restrained in order to prevent him or her from being harmed. An example is someone who does not have the mental capacity to be aware of road safety. It would be acceptable for a relative or carer to physically stop the person from walking into the road. The restraint must be proportionate to the likelihood of the person suffering harm and also to the seriousness of that harm and must not amount to a deprivation of liberty (as defined in Article 5 of the European Convention on Human Rights). However, it would not be acceptable for the relative or carer to keep the person locked in at all times to prevent them from going near traffic. Ill-treatment and neglect
Section 44 of the MCA creates an offence of ill-treating or wilfully neglecting a person who lacks capacity. This applies to anyone helping a person who lacks capacity to make his or her own decisions and also to deputies and attorneys. If a person is found guilty of ill-treatment or neglect they may face a prison sentence of up to five years and/or a fine. If a person is ill-treated or neglected it may also amount to a violation of that person’s human rights. Ill-treatment is likely to violate the right to a private life under Article 8 of the European Convention on Human Rights or, if the ill-treatment is extremely serious, the right not to be subjected to inhuman or degrading treatment under Article 3 of the European Convention on Human Rights. The Court of Protection
The Court of Protection was created by the MCA to oversee actions taken under the Act and resolve any disputes that involve mental capacity matters. The Court has the same authority as the High Court and appeals can be made against its decisions, with permission, to the Court of Appeal. When making any decision, the Court of Protection must apply all the principles set out in section 1 of the MCA (see above). In particular, it must make a decision in the best interests of the person who lacks capacity to make the specific decision. Powers of the Court of Protection
The Court of Protection has the power to:
Decide whether a person has capacity to make a particular decision for themselves Make declarations, decisions or orders on financial or welfare matters that affect people who lack capacity to make such decisions Appoint deputies to make decisions for people lacking capacity to make those decisions (see below) Decide whether a Lasting Power of Attorney or Enduring Power of Attorney is valid Remove deputies or attorneys who fail to carry out their duties. Decide on the lawfulness of Deprivation of Liberty Safeguards authorisations and resolve disputes regarding the Deprivation of Liberty Safeguards (see Deprivation of Liberty Safeguards). There will usually be a fee for applications to the Court of Protection, although in certain circumstances a person will be eligible for a fee exemption. The enforcement of decisions made by the Court of Protection is supervised by theOffice of the Public Guardian.
Standards/Codes of Conduct
Professional bodies
Nursing and Midwifery Council
Gscc
Care Quality Commission
Standards for record keeping
Workplacepolices and procedures
Record keeping, storage and disposal
Confidentiality
Confidentiality
This means not sharing private information about the people you provide care for: without their permission and only then with others who need to know this information This is a legal right of each individual a per the Data Protection Act ie. To expect that private information about them will be kept confidential. Maintaining confidentiality can be a challenge as inforation is ginven and received in many different ways. All the information that is given and received must be stored safely. All data has to be secure and this can take many different forms in my workplace eg. Paper records/notes, duty rostas – these are kept on computer at Acehomecare or in locked filing cabinets. All staff require passwords and may have restricted access. Data is also sent via fax, text messaging and telephone.
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