Mental Capacity Act 2005 Implications for Care and Treatment

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Mental Capacity Act 2005Implications for Care
and Treatment

• Paul Harper
• Mental Capacity Act/DOLS Lead

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Aims of the training

• Clarify issues around consent to treatment.
• Ensure a working knowledge of the Mental Capacity
  Act.
• Explore when and how to undertake capacity
  assessments.
• Develop a basic understanding of The Deprivation
  of Liberty Safeguards.

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Consent

• The starting point is that everyone has the right
  to determine what happens to their own bodies.
• (Article 8 ECHR Everyone has the right to
  respect for his private and family life)
• Touching someone without valid
• consent may constitute the civil or
• criminal offence of battery unless
• authorised by the MHA.
• This could lead to challenges of
• negligence and compensation.

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Types of Consent

• Verbal/non verbal
• Written
• Implied
• To be valid it must be
• Given freely without duress.
• The patient must have been given sufficient
  information to understand the implications.
• The patient must have the mental capacity to
  give consent to the treatment or intervention.
• Consent can be withdrawn at any point.

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Adults Children and Young People

• Consent for adults (over18) governed by common
  law.
• Young People Aged 16 and 17 are often treated
  as adults by the courts.
• Younger children who understand fully what is
  involved in the proposed procedure can also give
  consent (although their parents will ideally be
  involved).
• In other cases, someone with parental
  responsibility can give consent on the childs
  behalf, unless they cannot be reached in an
  emergency.

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What is the Mental Capacity Act 2005 (MCA)?

• Developed to bring together and integrate
  existing law
• Puts the needs and wishes of a person who lacks
  capacity at the centre of any decision making
  process

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MCA Code of Practice
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Which staff will be affected by the MCA?

• People working in a professional capacity, e.g.
  doctors, nurses, dentists and social workers
• People who are paid to care or support, e.g. home
  care workers and care assistants
• Anyone who is a deputy appointed by the Court of
  Protection
• Anyone acting as an independent mental capacity
  advocate (IMCA)
• Anyone carrying out research involving people who
  may lack capacity

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Children and young people

• The MCA applies to people who are 16 years old or
  older
• 16 or 17 year olds who lack capacity can be
  treated under the MCA their parents should be
  consulted unless the young person does not wish
  this
• the Court of Protection can be involved in
  decisions for someone under 16 if they are likely
  to still lack capacity at 18
• People have to be 18 to make LPAs and advance
  decisions

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What is mental capacity?

• Mental capacity is the ability to make a decision
  
• Capacity can vary over time
• Capacity can vary over the decision to be made
• Physical conditions, such as location, can affect
  a persons capacity
• Staff must not assume a lack of capacity because
  of a persons age, physical appearance, condition
  or an aspect of their behaviour

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The five core principles(Code of Practice,
Chapter 2)

1. Every adult must be assumed to have capacity
   unless it is proven otherwise.
2. All reasonable steps must be taken to assist
   person to make the decision themselves.
3. Individuals have the right to make unwise
   decisions, even those others may consider
   eccentric.
4. All actions on behalf of those who lack capacity
   must be in their best interests.
5. Any treatment should be done in the least
   restrictive manner of the persons basic rights
   and freedoms.

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What is lack of capacity?

• An individual lacks capacity if they are unable
  to make a particular decision
• This inability must be caused by an impairment or
  disturbance in the functioning of the mind or
  brain, whether temporary or permanent
• Capacity can vary over time and depends on the
  type of decision

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Which Patients may this affect ?

• dementia
• learning disability
• CVA / brain injury
• severe mental illness
• anyone planning for the future
• temporary loss of capacity, unconscious because
  of an accident or anaesthesia or because of
  alcohol or drugs

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What triggers an assessment?

• Staff should start from a presumption of capacity
  then take into account
• the persons behaviour
• their circumstances
• any concerns raised by other people

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How is capacity assessed?

• Factors to be considered include
• general intellectual ability
• memory
• attention and concentration
• reasoning
• verbal comprehension and expression
• cultural influences
• social context

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How to assess capacity(Code of practice,
4.11-4.13)

• The two-stage test of capacity
• is there an impairment of, or a disturbance in,
  the functioning of the mind or brain?
• if so, is the impairment or disturbance
  sufficient to cause the person to be unable to
  make that particular decision at the relevant
  time?

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Questions that must be considered when assessing
capacity

• Does the person have the ability to
• understand the information?
• retain information related to the decision?
• use or assess the information while considering
  the decision?
• communicate the decision by any means?

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What kind of records will staff need?(Code of
Practice, 4.60-4.62)

• No formal documentation is required for day-
  to-day decisions or for consent to care.
• A healthcare professional proposing treatment
  should record an assessment of capacity in the
  patients notes or on specific documentation
  designed for this purpose.

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Who can be a decision maker?

• Varies depending on the individuals
  circumstances and the type of care or treatment
  or decision being considered
• Health and social care staff, family and unpaid
  carers can be decision makers when decisions
  relate to carrying out an act on behalf of
  somebody who cannot consent
• The person delivering the care or treatment makes
  the decision about whether to deliver that care
  or treatment
• Section 5 of the MCA gives protection from
  liability

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Best interests(MCA, Section 4 Code of Practice,
5.1-5.69)

• Any decision or act must be in a persons best
  interests
• When making decisions, staff should take account
  of the following
• equal consideration and non-discrimination
• considering all relevant circumstances
• regaining capacity
• permitting and encouraging participation
• special considerations for life-sustaining
  treatment
• the person's wishes, feelings, beliefs and
  values
• the views of other people

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Restraint
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Restraint
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Examples of Restraint

• 11 Staffing or close supervision
• Sedation
• Bed rails
• Patient denied access to everyday clothing
• Locked doors.
• Patient requests to leave the ward declined

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Restraint

• Section 6 (4) of the Act states that someone is
  using restraint if they
• Use force or threaten to use force to make
  someone do something that they are resisting ,or
• Restrict a persons freedom of movement whether
  they are resisting or not.

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Restraint

• In order for restraint to be lawful the person
  taking action must reasonably believe that
  restraint is necessary to prevent harm to the
  person who lacks capacity.
• The type of restraint and duration must be a
  proportionate response to the likelihood and
  seriousness of harm to the person.

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Deprivation of Liberty Safeguards(DOLS)

• Only relevant to patients in registered care
  homes and Hospitals.
• Not applicable to patients in their own homes.
• You may not utilise a level of restraint that
  would amount to depriving a patient of their
  liberty.
• BUT Restraint or restriction does not necessarily
  result in deprivation.

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Lasting Powers of Attorney(MCA, Sections 9-14
Code of Practice, Chapter 7)

• Two different LPAs to cover a range of
  circumstances
• personal welfare (including healthcare)
• property and affairs (finance)
• Who can be an attorney?
• family
• friend
• professional, e.g. lawyer
• An attorney must be over 18 years old
• An individual can be an attorney for more than
  one person
• Staff should not normally act as attorneys

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Advance decisions

• An advance decision is prepared when a person has
  capacity
• It is a decision to refuse specified treatment
  and is binding
• Other expressions of an individuals preferences
  are not binding but must be considered
• Staff must be able to recognise when an advance
  decision is valid
• An advance decision must be written, signed and
  witnessed if life-sustaining treatment is being
  refused
• A relevant LPA will override an advance decision
  if it is made after the decision
• An advance decision can be withdrawn
• by the individual while they have the capacity,
  or
• if the individual does something that is clearly
  inconsistent with the advance decision, or
• by the decision maker if treatment is now
  available that was not available when the advance
  decision was made

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Independent mental capacity advocates (IMCAs)

• IMCAs are a local service to represent the
  interests of
• people lacking capacity when making a serious
  decision about medical treatment or a move, and
  in some adult protection cases, and if
• they have no one else to speak for them other
  than paid carers, and
• their care is arranged by their local authority
  or NHS
• The IMCA has a right to information about the
  person who lacks capacity but is not a decision
  maker

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Acting lawfully in connection with care or
treatment

• Section 5 of the MCA provides protection from
  liability provided that all the MCA requirements
  are met
• Includes acts of
• personal care Dressing, washing, feeding
• healthcare and treatment Diagnostics, Taking
  blood, Giving medication, providing nursing care.

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New criminal offences of ill-treatment or wilful
neglect(MCA, Section 44 Code of Practice,
Chapter 14)

• New offences apply to
• people who have the care of a person who lacks
  capacity
• An attorney under a LPA or EPA
• A deputy appointed by the Court
• Criminal offences can result in a fine and/or a
  sentence of imprisonment of up to five years

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Court of Protection

• Application can be made to the Court of
  Protection if
• On-going decisions may be needed for a person who
  lacks capacity.
• To arrange a court appointed deputy.
• Or
• A particularly difficult decision is required,
  such as withdrawing/withholding artificial
  nutrition and hydration.
• Disagreements can not be resolved in any other
  way.

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Remember..

• In emergencies,
• decisions will need
• to be made immediately.
• Where there is doubt as
• to the appropriateness of treatment, there
  should be a presumption in favour of providing
  life-sustaining treatment.

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IMPORTANT..

• Where an adult patient lacks the mental capacity
  (either temporarily or permanently) to make a
  decision for themselves

NO ONE IS ABLE TO GIVE CONSENT TO THE
EXAMINATION OR TREATMENT ON THEIR BEHALF
Unless they have a Welfare Lasting Power of
Attorney or Deputy of Court of Protection However
you could make a best interest decision for this
person under the MCA 2005
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Paul Harper

• Mental Capacity Act/ DOLS Lead
• East Lancs Hospitals Trust
• Family Care Division
• Children's Out-Patient's Department
• Burnley General Hospital
• Casterton Avenue
• Burnley BB10 2PQ
• 07944 194866
• Paul.harper_at_elht.nhs.uk