Mental Capacity Act

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Mental Capacity Act Principles and Practice

• Steve Blades
• GP Lead for Adult Safeguarding

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Aims

• Understand principles of Mental Capacity Act
• Understand how to make a best interests decision
• Recognise role of Deciding Right documents
• Understand role of the Independent Mental
  Capacity Advocate (IMCA)

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Mental Capacity Act Principles

• 1. A Presumption of Capacity
• Every Adult has the right to make his or her own
  decisions and must be assumed to have capacity to
  do so unless it is proved otherwise
• 2. Individuals being supported to make their own
  decisions
• People must be given all practicable help before
  anyone treats them as not being able to make
  their own decisions
• 3. Unwise Decisions
• Just because a person makes what might seem as an
  unwise decision, they should not be treated as
  lacking in capacity to make that decision
• 4. Best Interests
• An act done or decision made under the Act for or
  on behalf of a person who lacks capacity, must be
  done in their best interests
• 5. Least Restrictive Option
• Anything done for, or on behalf of a person who
  lacks capacity, should be the least restrictive
  of the basic rights of freedoms

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Decision Tree
Person Makes Decision
Has Capacity
Pre-Assessment - do everything to help the person
to make a decision
Assess Capacity - 2 Stage Test. Impairment or
disturbance in mind or brain?
No
Unable to make decision at time needs to be made?
Can they -Understand the information relevant to
the decision -Retain that information -Use or
weigh that information as part of the process of
making the decision -Communicate their decision
All Yes
Is there a valid applicable LPA, EPA, Advanced
Decision in place
They make the decision
Yes
Decision Maker makes decision
Best Interests Assessment
No
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Pre-assessment of capacity

• Where there is reason to believe a person lacks
  capacity you will need to consider
• has everything been done to help the person to
  make a decision?
• does this decision need to be made without delay?
• If still capacity questionable, move on to next
  phase of assessing

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Assessing Capacity

• A person lacks capacity in relation to a matter
  if at the material time they are unable to make a
  decision for themselves in relation to the matter
  because of an impairment of, or a disturbance in
  the functioning of, the mind or brain

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Two stage assessment of capacity

• Does the person have an impairment of the mind or
  brain, or is there some sort of disturbance
  affecting the way their mind works? (It does not
  matter whether the impairment or disturbance is
  permanent or temporary)
• If yes does that impairment or disturbance mean
  that the person is unable to make the decision in
  question at the time it needs to be made?
• Any question whether a person lacks capacity must
  be decided on the balance of probabilities

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Assessing capacity (MCA1 form)

• A person is unable to make a decision for
  themselves if they are unable to
• Understand the information relevant to the
  decision
• Retain that information
• Use or weigh that information as part of the
  process of making the decision
• Communicate their decision (whether by talking,
  using sign language or any other means).

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Powers of Attorney

• Enduring Power of Attorney
• Lasting power of attorney
• - Health and welfare
• - Property and affairs
• Office of Pubic Guardian
• Court of Protection

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Decision Tree
Person Makes Decision
Has Capacity
Pre-Assessment - do everything to help the person
to make a decision
Assess Capacity - 2 Stage Test. Impairment or
disturbance in mind or brain?
No
Unable to make decision at time needs to be made?
Can they -Understand the information relevant to
the decision -Retain that information -Use or
weigh that information as part of the process of
making the decision -Communicate their decision
All Yes
Is there a valid applicable LPA, EPA, Advanced
Decision in place
They make the decision
Yes
Decision Maker makes decision
Best Interests Assessment
No
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Deciding Right Guidance and Forms

• Principles of care planning
• Advance care planning (ACP)
• DNACPR
• Advance decision to refuse treatment (ADRT)
• Emergency health care plans (EHCPs)

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Outcomes of Advance Care Planning

• Advance statement of wishes and feelings, beliefs
  and values
• Advance decision to refuse treatment
• Lasting power of attorney

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Advance decisions to refuse treatment

• A decision to refuse specific treatment and is
  binding
• Can only be made by an individual with capacity
  but becomes active only when they have lost
  capacity
• Staff must be able to recognise when an advanced
  decision is valid and applicable
• Must be valid, written, signed and witnessed if
  life sustaining treatment is being refused

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Events making an ADRT invalid

• the person withdrew the decision while they still
  had capacity to do so
• after making the advance decision, the person
  made a Lasting Power of Attorney (LPA) giving an
  attorney authority to make treatment decisions
  that are the same as those covered by the advance
  decision
• the person has done something that clearly goes
  against the advance decision which suggests that
  they have changed their mind

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ADRT is not applicable if

• the proposed treatment is not the treatment
  specified in the advance decision
• the circumstances are different from those that
  may have been set out in the advance decision, or
• there are reasonable grounds for believing that
  there have been changes in circumstance, which
  would have affected the decision if the person
  had known about them at the time they made the
  advance decision

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Best Interests Decision

• The person making the decision is know as the
  Decision Maker they will normally be
• - the carer responsible for the day to day care
• or
• - a professional such as a doctor, nurse, social
  worker where decisions about treatment, care
  arrangements or accommodation have to be made
• There can also be joint decision makers
• The person delivering the care or treatment makes
  the decision about whether to deliver that care
  or treatment

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Best Interests Decision Making

• Dont make assumptions about a persons best
  interests
• Is the person likely to regain capacity, if so,
  can the decision wait
• All relevant circumstances must be considered
• Involve the person as fully as possible
• Past and present wishes, feelings, beliefs and
  values e.g. religious, cultural and moral
  considered and any advance statements / decisions
• Must consult other people if appropriate and
  practicable and take account of views
• Where the determination relates to life
  sustaining treatment.must not be motivated by
  desire to bring about death

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Best Interests Record Keeping

• Clear record keeping is crucial
• Day-to-day - record and review, but elaborate
  records not required on every occasion about
  every decision/act of care
• Consider using MCA 1 and 2 if capacity is in
  doubt and for a course of care / treatment and/or
  life changing decisions/events are necessary and
  especially where
• There is conflict with family
• There are adult safeguarding or public
  protection issues
• Accommodation change long term care, hospital
  admission
• Any case conference convened around a serious
  issue
• Where physical interventions are proposed for a
  patient not detained under MH Act or where
  there maybe restriction of liberty issues e.g.
  concealed medication

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Care and Treatment

• MCA provides legal protection from liability
  (Section 5) for carrying out actions in
  connection with care and treatment of people who
  lack capacity provided
• You have observed the principles of MCA
• You have carried out assessment of capacity and
  reasonably believe the person lacks capacity in
  relation to the matter in question
• You reasonably believe action is in the best
  interests of the person

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Relationship between Mental Capacity Act and
Mental Health Act

• Does the person have a mental health condition
  and predominantly need treatment for a mental
  health disorder?

Yes
No
Does the patient have capacity? Does the patient
have capacity?
Yes
No
Yes
No
Use MHA
Patient needs to make decisions
Consider MCA but MHA needed for detention
Use MCA. DOLS may apply
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Deprivation of Liberty Safeguards

• Cover people aged 18 or over in hospital or care
  homes
• DOL safeguards are to prevent arbitrary decisions
  that deprive vulnerable people of their liberty
• Do not apply if detained under Mental Health Act
• Beyond restraint or restriction of liberty
  difference of degree of intensity not of nature
  or substance
• LA are supervisory bodies

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Restraint

• Section 6 of the MCA defines restraint as
• the use or threat of force where an
  incapacitated person resists or any restriction
  of liberty of movement whether or not the person
  resists
• Restraint is only permitted if
• the person using it reasonably believes it is
  necessary to prevent harm to the incapacitated
  person
• and
• the restraint used is proportionate to the
  likelihood and seriousness of the harm
• Section 6 makes it clear that it does not provide
  any protection for an act depriving a person of
  their liberty

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Independent Mental Capacity Advocacy (IMCA)

• An IMCA is someone appointed to support a person
  who lacks capacity but has no one to speak for
  them in a dispute
• You must refer to IMCA if service user
• lacks capacity and
• has no one appropriate or practicable to speak
  for them
• needs decisions regarding serious medical
  treatment (excluding Mental Health Act
  treatment) or a change in a persons
  accommodation (28 days in hospital, 8 weeks in
  care home)
• Must consider referring if safeguarding issues

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Serious Medical Treatment

• Involves
• Giving new treatment, stopping treatment or
  withholding treatment that could be offered where
• There is a fine balance between likely benefits
  and burdens
• A decision between treatment options is finely
  balanced
• Or proposed treatment is likely to have serious
  consequences which include
• Serious and prolonged pain, distress or side
  effects
• Potentially major consequences e.g. stopping life
  sustaining treatment
• Serious impact on persons future life choices
  e.g. ability to have children

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Role of IMCA

• Respond within 2 working days
• Meet with the person and speak to those who know
  them to find out as much as possible about the
  persons wishes, values and beliefs
• Talk to professionals involved
• Attend relevant meetings

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Role of IMCA

• Submit a written report to the decision maker
• Recommend any courses of action that may help to
  support the decision making process
• Enable the decision maker to make decisions in
  the best interests of the person
• Challenge the decision if it does not seem
  appropriate

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IMCA referrals

• Use referral form
• Clear decision to be made
• Recent assessment of decision specific capacity
• Phone and discuss

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IMCA contact details

• Newcastle, North Tyneside and Gateshead
• Your Voice Counts 4786472
• www.yvc.org.uk
• Northumberland
• Spiral Skills 0191 2715353
• www.spiralskills.org

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Decisions that cannot be made for someone lacking
capacity

• Consenting to marriage or a civil partnership
• Consenting to have sexual relations
• Consenting to a decree of divorce on the basis of
  two years separation
• Consenting to the dissolution of a civil
  partnership
• Consenting to a child being placed for adoption
  or the making of an adoption order
• Discharging parental responsibility for a child
  in matters not relating to the childs property,
  or
• Giving consent under the Human Fertilisation and
  Embryology Act 1990.

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Contact Details

• Steve Blades
• GP lead for safeguarding adults
• stephen.blades_at_nhs.net
• Deciding Right
• www.theclinicalnetwork.org