Mental Capacity Act 2005

1. Mental Capacity Act 2005 Kevin Towers WLMHT

2. Current law where lacking capacity Financial matters: • Part VII Mental Health Act 1983 • Enduring Powers of Attorney

3. Current law where lacking capacity Welfare matters (including treatment): • Common law (necessity & best interests) • Part IV Mental Health Act 1983 • Advance directives

4. What is Incapacity? Person unable to make a decision for him/herself if unable: • to understand the information relevant to the decision • to retain that information • to use or weigh that information as part of the process of making the decision, OR • to communicate his/her decision (whether by talking, using sign language or other means)

5. Statutory Principles of MCA 05 (Section 1(1)) • A person must be assumed to have capacity unless established that they lack capacity. • A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success. • A person is not to be treated as unable to make a decision merely because he/she makes an unwise decision

6. Statutory Principles contd. 4. An act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in his/her best interests (see s4) 5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

7. New mechanisms for making decisions • Advance Decisions (MHA 83 can overrule) • Lasting powers of attorney • Court decision or Court Appointed Deputy (New Court of Protection takes over role of High Court in relation to welfare matters) • Independent Mental Capacity Advocates (IMCA) • Use of section 5

8. An ‘advance decision’ is a decision made by an adult with capacity that if: (a) at a later time a specified treatment is proposed to be carried out by a person providing healthcare, and (b) at that time he lacks capacity to consent to that treatment, the specified treatment is not to be carried out or continued Advance Decisions

9. Advance decision contd. • Not binding if at material time person who made it still has capacity to give or refuse consent to the treatment being proposed • Not binding if not valid e.g. withdrew the AD at any time when had capacity, or has done something clearly inconsistent with the AD remaining his/her fixed decision • Not binding if not applicable to the treatment. Or, if treatment is not the treatment specified in the AD, any circumstances specified in the AD absent, or there are reasonable grounds for believing that circumstances exist which the person did not anticipate at the time of the AD and which would have affected his/her decision

10. Life-sustaining treatment An advance decision is not applicable to life-sustaining treatment unless it is verified by a statement to the effect that it is to apply to that treatment even if life is at risk and the decision is in writing, signed and witnessed

11. Scenario (Anselm Eldergill) Mr Smith has suffered from schizophrenia for many years. He has been detained on a number of occasions. His consultant prescribes him Impotentox when he is acutely unwell. This has very unpleasant side-effects for him. He makes an advance decision refusing the treatment in the event he becomes incapacitated. Some months later, he relapses and is admitted to hospital informally. His consultant considers that he requires a course of Impotentox. What is the legal position?

12. Lasting Powers of Attorney • An LPA is a power of attorney under which the donor (P) confers on a donee or donees, authority to make decisions about all or any of the following: • P’s personal welfare or specified matters concerning P’s personal welfare, and • P’s property and affairs or specified matters concerning P’s property and affairs, • And which includes authority to make such decisions in circumstances where P no longer has capacity.

13. Court Decisions / CADs • Application made to Court of Protection: • Can make order in respect of complex or difficult welfare decisions or simple one-off financial decisions • Can appoint a Deputy – e.g. where a series of decisions are needed and a single court order is insufficient. replace current ‘receivers’

14. Court of Protection / CADs contd • Court can also declare whether someone lacks capacity / contact issues • Decide if CAD is in person’s best interests • Office of Public Guardian carry out checks on person appointed • Must still allow person who lacks capacity to make whatever decisions they are able to and MUST make decisions in person’s best interests

15. IMCA • Provide additional safeguard for particularly vulnerable people in specific situations • Duty on local authority or NHS body to provide this service where necessary • For people with no-one to consult other than paid carers • Use when decisions about serious medical treatment or significant change of residence (provision of accommodation by NHS or LA) • IMCA represents and supports person lacking capacity

16. Section 5 (MCA) Must satisfy conditions: • The act is one undertaken in connection with another person’s care or treatment • The person doing it takes reasonable steps to establish whether the recipient has capacity • He/she reasonably believes that the recipient lacks capacity • He/she reasonably believes that is in their best interests for act to be done • If use restraint, he/she reasonably believes BOTH that it is necessary to do the act in order to prevent harm to the person and that the act is a proportionate response to the likelihood of their suffering harm and the seriousness of that harm

17. Concerns? • Danger of overregulation of treatment of incapacitated patients? • Concerns that donees will act unreasonably or other than in best interests of patients? • Advance decisions to refuse treatment may be unworkable because will often be unclear if they are valid and applicable?