Mental Capacity Act

1. 2005 Mental Capacity Act

2. Why is it necessary • When person lacks capacity physicians have power and influence over them which could be abused • 30% pts on acute medical wards may lack capacity • 2 million people in UK lack capacity • Until this act no statutory law covered this area

3. Lack of capacity • Causes • Mental illness • Acute physical illness • Learning difficulties • Dementia • Just because a person has a condition that might mean they lack capacity does not mean that they are incapable of making all decisions

4. The new Act • Codifies previous common law • Introduces a code of practice • A criminal offence for wilful neglect or ill treatment of people without capacity • A new role of independent mental capacity advocate service - IMCA • Advanced decisions

5. Key Principles • Capacity should always be assumed • Persons ability to make decisions should be optimised before concluding capacity is absent • Patients are entitled to make unwise decisions • Decisions and actions made for people lacking capacity must be in their best interests • Such decisions must always be the least restrictive options for their basic rights and freedoms

6. The code of practice • Designed to guide those responsible for interpreting the act • Clinicians are legally required to “have regard to” its guidance and if later asked prove they did • Any departures form it will be hard to justify • Is available online

7. Independent mental capacity advocate • A person who is assigned to support and represent “unbefriended” people who lack capacity • Clinicians do not have to adhere to their decisions but must take them into account as part of the decision making process • The code specifies when to instruct an independent mental capacity advocate

8. IMCA • They should can be instructed for • Care reviews • Adult protection cases • They must be instructed and then consulted when • Serious medical treatment is being proposed • Ventilation, major surgery, chemotherapy, etc. • When accommodation for > 28 days in hospital or 8/52 in a care home is being considered

9. Lasting power of attorney • A person can appoint a named person “the donee” with the authority to make decisions on their behalf if they lost capacity • It applies to • Property and affairs • Personal welfare • Health care • Social affairs

10. Lasting power of attorney • It includes all decisions except those about withdrawal of life saving treatment unless explicitly authorised in the agreement • Property and affairs lasting power of attorney can start before the person looses capacity • Clinicians treating people without capacity must follow the decision of the “donee” unless they are thought not to be acting in the persons best interest

11. Lasting power of attorney • The limits of the power granted are specified • Decisions about life sustaining treatment must be specified • A signed statement from the attorney and a certificate completed by an independent third party are required • The court of protection can appoint a deputy for someone who already lacks capacity

12. Advanced decisions • Can be drawn up by anybody to specify treatments they would not want if they lost capacity • They cannot demand treatments • As long as they were drawn up when person still had capacity and are specific enough to cover the person’s current predicament they must be respected • They can be reversed if the person regains capacity

13. Advanced decisions • They can be made verbally • Decisions that refuse life sustaining treatment have to be written, signed and witnessed to be valid

14. Court of Protection • Adjudicates on the following for people who lack capacity • Financial matters • Health • Welfare decisions

15. Legal protection • Section 5 of the act protects from legal liability those providing • Health and personal care • For people without capacity provided they had “reasonable belief” that the person lacked capacity and their actions were in the persons best interest • Documentation is key • Does not protect those who have been negligent or who have gone against the wishes of an attorney or deputy acting within the scope of their power

16. Assessment of capacity • Stage 1 • Person must have an impairment of or disturbance in the functioning of the brain or mind resulting in an inability to retain, use or weigh information relevant to a decision. • Stage 2 • Can only be assessed in relation to a particular decision • Must be reassessed for each decision • People are entitled to make unwise decisions

17. Best interests • When deciding on best interests consider • Intervention likely to lead to best clinical outcome • Plus • Put yourself in the person position and ask what they would have wanted if they still had capacity • Views of relatives or others who know the person well might be crucial to decision making • The least restrictive option should be used

18. Use of restraint • Restraint is use or threat of force to make someone do something they are resisting • Is also the restriction of a person’s freedom of movement, whether they are resisting or not • Restraint must reasonably be believed to be necessary to prevent harm • Must be proportional to the likelihood and seriousness of the harm

19. Relationship to mental health act • Mental health act is only relevant when treating a mental disorder • Patients detained under the mental health act who refuse physical health treatments need to have their capacity assessed • Incapacity should not be assumed in those with mental illness

20. Relationship to mental health act • The mental capacity act cannot be used to give care involving loss of liberty • Treatments that are prohibited in advanced decisions or treatments that are not consented to by an attorney can still be given under the mental health act if they are to treat a mental disorder