mental capacity act

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The mental capacity act.

• By C Spain

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INTRODUCTION TO THE MENTAL HEALTH ACT

• The mental health act was introduced in September
  of 1983 to replace the 1959 act.
• The mental health act in divided into various
  sections and subsections. These sections help to
  set out what sort of care is made available to
  clients who are placed under these sections.
• For example sections 2,3,4 and 5 (the most
  commonly used sections) can be remembered using
  the phase I ATE ALREADY as in Assessment,
  Treatment, Emergency and Already in hospital.

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Common sections.

• Section 1--This sets out why the act is needed
  and who it is trying to help.
• Section 2Assessment, usually for no more than 28
  days.
• Section 3Treatment, This section is for people
  requiring treatment and is for a
• Maximum period of 6 months.
• Section 4Emergency treatment, for no more than
  72 hours

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Common sections.

• Section 5Already in hospital, This section is
  designed to help with those people who Are in
  hospital informally (Not held under any section)
• If they are deemed to Be a danger to themselves
  or others and require to be held against their
  will
• In order to help prevent any harm coming to
  themselves or others.
• This section is split into two subsections
  section 5/2 refers to the doctors holding power
  whilst section 5/4 refers to the nurses holding
  power.

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The nurses holding power.

• This nurses holding power requires that the
  responsible nurse feels that the Client is
• A-Informal
• B-Deemed to be a danger to themselves or others
• C-And no doctor is immediately available.
• The nurses holding power lasts for up to 6
  hours and during that time a Doctor should be
  advised and then make a decision as to whether to
  section
• the client or not.

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The mental health act.

• There are many other sections within the mental
  health act and if interested further reading is
  advised.

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The mental capacity act 2005

• A new part of legislation that has recently come
  into force that we need to be aware of is the
  mental capacity act.
• This act is underpinned by five key principles,
  these are

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The mental capacity act 2005

• A presumption of capacity.
• This means that every adult has the right to make
  his or her own decisions and must be assumed to
  have the capacity to do so unless it is proved
  otherwise.
• The right for individuals to be supported to make
  their own decisions.
• This means that people must be given all
  appropriate help before anyone decides that they
  are unable to make these decisions.

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The mental capacity act 2005

• The right to make wrong decisions.
• This means that the individual must be allowed to
  make decisions which may seem as unwise or
  eccentric.
• Acting in the individuals best interests.
• This simply put means that anything done for and
  on behalf of an individual without capacity must
  be in those individuals best interests.

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The mental capacity act 2005

• Do not restrict the individuals own rights.
• That anything done for or on behalf of an
  individual without said capacity should be the
  least restrictive of the individuals basic
  rights and freedoms.

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What is mental capacity?

• Mental capacity is the ability to make a decision
• Capacity can vary depending on 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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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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The mental capacity act 2005

• So how do we assess the mental capacity of an
  individual?
• The act makes it clear that a lack of capacity
  cannot be made merely by reference to a persons
  age, experience or any other condition or aspect
  of a persons behaviour, Which could be deemed
  assumptions and unjustified.

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The mental capacity act 2005

• There is a test which can be done with the
  individual which is decision specific. to help
  enable staff to work out whether or not the
  clients have the capacity to make their own
  decisions about their own lives.

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So what is this Test?

• The client has to show that they
• A Understand what is being asked or said to
  them, For example can they repeat it back to you?
• B Can they retain and remember the information
  given after say 10-15 minuets?
• C Can the client not only remember but also
  repeat it back to you after a period of time, say
  10-15 minuets?

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The mental capacity act

• If they are unable to complete all of these tasks
  then they are deemed not able (not to have the
  capacity) to make their own decisions without
  help and/or guidance.
• At all times staff should work with the
  individuals best interests at the foremost of
  their care.

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But remember

• It may be useful, as in most tests of this type,
  for the client to attempt the test on more than
  on occasion , for example in the morning and
  later on in the evening. This will give a more
  accurate reading.
• The main thrust of the mental capacity act deals
  with how decisions are made with, and especially
  on behalf of, people who lack full mental
  capacity.
• These parts of the mental capacity act came into
  force as recently as 1st October 2007.

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KEY CONCEPTS.

• One persons ability to make decisions can vary,
  both over time and depending on exactly what the
  decision is. However, the initial presumption
  must be in favour of mental capacity.
• Mental capacity needs to be assessed by the
  person who is making the decision, not by some
  one else.

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KEY CONCEPTS.

• Decisions that are not urgent should normally be
  deferred to give time for the person to have all
  the options and other issued explained to them in
  a way that they may understand, to help avoid
  other people from making the decision for them.
• Where a decision is to be made by some one other
  than the resident/client, then the clients own
  views and wishes should also be taken into
  account.

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KEY CONCEPTS

• Ultimately, however, the ultimate test is the
  best interests of the client.
• The process of assessment of capacity and
  decision making should be recorded, in order to
  avoid or limit possible legal liability.
• Where a person has nobody to speak for them, an
  independent mental capacity advocate (IMCA) may
  be appointed to assist. But they are not the
  decision maker, however.

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HOW TO LIMIT PROBLEMS UNDER THE MENTAL CAPACITY
ACT.

• 1Get Trained (all staff)
• 2---Sort out capacity and any power of attorney
  issues at the same time you would do the Initial
  assessment, for admission. For existing clients,
  do it now.
• 3---Make sure that the contract is signed, and by
  the right person.

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HOW TO LIMIT PROBLEMS

• 4---Make sure you have a care plan for mental
  capacity decision-making, especially where there
  are foreseeable difficulties, for example family
  members with strong or conflicting opinions.
• 5---Always use best interest as the test, no
  convenience or relatives wishes.
• 6---Record whenever practical the reasons for the
  decision.

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INITIAL CONSIDERATIONS

• 1---What is the decision to be made?
• 2---When does it need to be made, at the latest?
• 3---What is the worst that could happen if the
  decision is bad or wrong?
• 4---What would the client need to be capable of
  understanding, weighing up and Communicating, in
  order to make the decision for themselves?

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INITIAL CONSIDERATIONS

• 5---Do I have any objective evidence for
  believing that the client is not capable of
  Understanding or communicating this?
• 6---Can the decision be delayed until the client
  has recovered capacity, or can the necessary
  information be presented in a way that the client
  can understand?

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DAY TO DAY CARE

• 7---If the answer to question 5 is yes and the
  answer to question 6 is no, Does the type of
  decision to be made fall within the day to day
  care of the client, for example help with
  washing, dressing, personal hygiene, eating
  drinking, mobility or personal safety.
• If the answers yes, then make the
  decision in the clients best interests, taking
  all relevant circumstances and known wishes into
  account, and record the decision and reasons for
  it if practical.

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POWERS OF ATTORNEY

• 8---If this is not a day to day care decision,
  is there a registered attorney whose authority
  covers this sort of decision?

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WHENEVER YOU OR THE HOME ARE THE DECISION MAKERS

• 9REMEMBERwhatever the method used, ensure that
  the decision is
• a) The least restrictive option.
• b) Recorded where ever practical,
• c) Take advice if unsure.
• d) In the clients best interests.

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What is meant by, best interests

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

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Question.

• How can I ensure that an older person who is
  mentally incapacitated gives their consent for
  treatment?

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• To ensure that an older person who is mentally
  incapacitated gives their consent, be very clear
  about the means by which the person is
  communicating their consent.
• Consent to treatment can be communicated in
  writing or verbally. For example, is the person
  nodding their head, smiling or attempting verbal
  utterances?

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• Consent can also be implied.
• Implied consent is usually clear because the
  patient co-operates with the treatment being
  given.
• In most cases verbal consent or consent by
  implication is sufficient.

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What to do?

• Assess each person individually, but consider
  these practical steps
• 1Does the persons cognitive reasoning fluctuate
  from day to day? Give them time to consider their
  treatment during a period when their cognitive
  reasoning is improved.

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Practical steps

• If a person does regain some mental capacity,
  allow them to make an informed choice by
  presenting the information in a meaningful way.
• Have a sound knowledge of the individual person.
  Knowing their usual behaviours and ways of
  communicating can also aid decision making.

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Practical steps.

• Be aware of the people who may consent through
  one means and not consent through another, For
  example, a person may say yes but then try to
  prevent the treatment from taking place.
• Maintain accurate records of all communications.
• And finally.

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FINALLY.

• All decisions must take into account the older
  persons human rights, regardless of their mental
  incapacity.
• 
  Royal college of nursing
  2008

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Thank you for your time.
Mr C Spain