The Mental Capacity Act: new decision making challenges

1. The Mental Capacity Act:new decision making challenges Ian Hulatt Mental Health Advisor Royal College of Nursing

2. Session aims Provide an overview of the core principles of the MCA Consider the new roles and functions that support it Consider implications for practice Signpost to resources

3. First things first! • How many of you make decisions for others? • How many of you did that last time you were on duty? • How many times a day do you do this? • What was your rationale for doing so? • How did you record your actions?

4. What is it and when was MCA implemented? All of the Act came into force on 1st October 2007 Generally 16 years and over But does not currently permit deprivation of liberty

5. The changes New Court of Protection / Court appointed deputies Office of the Public Guardian Lasting Powers of Attorney (18 years and over) New Independent Mental Capacity Advocate (IMCA) service (since April 2007 in England) New research provisions Statutory advance decisions to refuse treatment (18 and over) New criminal offence – ill treatment / wilful neglect – all ages (since April 2007, two offences to date?)

6. Who is affected? Mental capacity could affect anybody Over 2 million people in England and Wales lack mental capacity to make some decisions for themselves. The lack of capacity may be temporary or permanent and will include people with dementia, with brain injury, with learning disability and mental health needs, and those who are unconscious or barely conscious whether due to an accident, being under anaesthetic or as a result of other conditions Up to 6 million family carers, carers, health and social care staff

7. The five statutory principles • A person must be assumed to have capacity unless it is 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 to do so have been taken without success. • A person is not to be treated as unable to make a decision merely because he makes an unwise decision. • An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. • 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.

8. What does the act do? The Act deals with the assessment of a person’s capacity The Act deals with the assessment of acts by carers of those who lack capacity

9. The Act deals with the assessment of a person’s capacity Assessing lack of capacity – The Act sets out a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time.  It is a “decision-specific” test.   No one can be labelled ‘incapable’ as a result of a particular medical condition or diagnosis. Section 2 of the Act makes it clear that a lack of capacity cannot be established merely by reference to a person’s age, appearance, or any condition or aspect of a person’s behaviour which might lead others to make unjustified assumptions about capacity.

10. All persons have capacity unless The person is unable by reason of mental disability, to make decisions for themselves on the matter in question or the person is unable to communicate their decision on that matter because they are unconscious or for any other reason. Law Commission 1997

11. Mental Capacity Act 2005 A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of the mind or brain

12. Lack of capacity may be due to Brain injury or CVA A mental health problem Dementia A learning disability Confusion/delirium or unconsciousness due to an illness or treatment for it Substance misuse

13. Criteria for Capacity Understand the information relevant to the decision Retain the information (long enough to make an effective decision) Use or weigh that information as part of the process of making the decision Communicate their decision.

14. Helping people to make decisions for themselves Is all the relevant information available Could the information be presented in a way that is easier to understand Are their times when this would be better considered Can anyone else help (relative, friend, advocate)

15. The Act deals with the assessment of acts by carers of those who lack capacity Best Interests – Everything that is done for or on behalf of a person who lacks capacity must be in that person’s best interests.  The Act provides a checklist of factors that decision-makers must work through in deciding what is in a person’s best interests.  A person can put his/her wishes and feelings into a written statement if they so wish, which the person making the determination must consider. Also, carers and family members gain a right to be consulted.

16. Independent Mental Capacity Advocate (IMCA) Involved if client has no one to support them other than paid staff Not the decision maker but must have their views taken into account IMCA service comes into effect in April 2007 in England

17. A new criminal offence from April 2007 Ill treatment or wilful neglect of a person who lacks capacity. Applies to those who: Has the care of a person who lacks capacity Is an attorney under LPA or EPA Is a deputy appointed for the person by the court What about nurses????????

18. A Bold idea?? The introduction of Advanced Directives is already making an impact in settings such as prison health care, and mental health

19. Advance Decisionsis a legal device (statement) made by a adult with capacity, (as defined in the act) in which s/he makes clear the detail of decisions made regarding how s/he would, or would not like to be treated if s/he were to lack capacity to make decisions or communicate his/her wishes about treatment and care in the future. 

20. An Advance Decision islegally enforceable only if it • is in writing; • is made by a persons who is 18 years or older; • is made by a person who has capacity, as defined in the Mental Capacity Act (2005);

21. An Advance Decision islegally enforceable only if it • specifies the particular circumstances and specific treatment that is to be refused, this may be expressed in layman’s terms;

22. An Advance Decision islegally enforceable only if it • is signed by the patient (or, if the patient is unable to sign it, by another person in the patient’s presence) in the presence of a witness; • it is signed by the witness, in the presence of the patient;

23. An Advance Decision addressing life sustaining / prolonging treatment is legally enforceable only if it • contains the statement that the Advanced Decision should apply ‘even if life is at risk’. This can be included in the document itself or can be a separate statement, but must also be signed by the patient and a witness.

24. Advance Decision is invalid if • Since making the Advance Decision, the patient has acted in a way that is clearly inconsistent with the advance decision.

25. Advance Decision isinvalid if • the adult has withdrawn the Advance decision at a time when he/she had capacity to do so. a patient with capacity can withdraw an Advance Decision at any time either in writing or verbally; no formal procedures are required;

26. Advance Decision is inapplicable if • At the time, the patient still has the capacity to give or refuse consent to treatment; • The treatment in question is not the treatment specified in the advance decision; •  One or more of the circumstances specified in the advance decision are different;

27. Advance Decisions • Health professionals have a legal obligation to comply with valid and applicable living wills.. NOT respecting a valid and applicable “Advanced Decision” may expose a healthcare professional to civil liability or criminal liability.

28. Potential difficulties in implementing Advanced Decisions • Health professionals may be unaware that a living will has been written. At present there is no national registration system to help health professionals quickly establish whether a Advanced Decision has been made.

29. Potential difficulties in implementing Advanced Decisions • The advanced decision may be worded ambiguously. e. g, a patient refuses all medical Interventions in the event that his/her life becomes “intolerable”.

30. Personal stories “My wife Edna and I kept our advance decisions on file with our doctor and at home for many years. When Edna was diagnosed with advanced lung cancer and given a life expectancy of six months we reminded our doctor of Edna’s wishes which were set out in her advance decision. This said that when she got to the stage where she could no longer communicate, Edna did not want anything that would prolong her life. This was adhered to, and Edna died peacefully, having been treated with great dignity and compassion, three months later. Having an advance decision gave us confidence that Edna’s wishes would be followed - I would recommend to everyone that they make an advance decision.” John Humble

31. Personal stories “My mother suffered a number of small strokes then a major stroke damaging the left side of her brain, giving her right side paralysis, leaving her unable to talk and incontinent. The consultant bullied my sister into giving consent for a peg tube even though our mother had no chance of recovery, was not considered suitable for rehabilitation and had always believed in being left to die with dignity. My mother died only after months of suffering – if she had made an Advance Decision stating her wishes she could have been spared those last dreadful months.” Stanley Kosch

32. What do I need to do? You will need to be prepared to practice within this new legal framework Your employer will have prepared procedures relating to this legislation You do however, have a professional obligation to make yourself aware of this new law

33. Hospital or care home managers identify those at risk of deprivation of liberty & request authorisation from supervisory body In an emergency hospital or care home can issue an urgent authorisation for seven days while obtaining authorisation Assessment commissioned by supervisory body. IMCA instructed for anyone without representation Age assessment No Refusals assessment Mental health assessment Eligibility assessment Mental capacity assessment Best interests assessment Authorisation expires and Managing authority requests further authorisation All assessments support authorisation Any assessment says no Best interests assessor recommends person to be appointed as representative Best interests assessor recommends period for which deprivation of liberty should be authorised Request for authorisation declined Person or their representative appeals to Court of Protection which has powers to terminate authorisation or vary conditions Authorisation is granted and persons representative appointed Authorisation implemented by managing authority Managing authority requests review because circumstances change Person or their representative requests review Review

34. Resources to consider • http://www.dca.gov.uk/menincap/legis.htm • http://www.dh.gov.uk/en/PublicationsAndStatistics/Bulletins/ChiefExecutiveBulletin/DH_4108436 • http://www.direct.gov.uk/en/DisabledPeople/HealthAndSupport/YourRightsInHealth/DG_10016888 • http://www.rethink.org/living_with_mental_illness/rights_and_laws/laws_you_need_to_know_about/mental_capacity.html

35. Any questions? ian.hulatt@rcn.org.uk On line discussion zone (RCN.org.uk)