Mental Capacity Act 2005 For General Practictioners

1. Mental Capacity Act 2005For General Practictioners Syed & Quinn Ltd Syed & Quinn Ltd 2013

2. Introduction • The Mental Capacity Act for England and Wales was passed in 2005 and came into force in April 2007 • In this session we will look at the contents of the legislation and in particular the way it has impacted on the expectations of GP practice. • The Act generally only applies to people over the age of 16 and provides a statutory framework to empower and protect people who may lack capacity to make decisions for themselves, and who else can make those decisions if they are not able to do so. Syed & Quinn Ltd 2011

3. Definition • Mental capacity is the ability to make decisions. • The Act is clear that assessments of capacity are only about an individuals capacity to make this decision today. • The department of health consider that up to 2 million people may lack capacity to make some decisions. • 6 million family members and carers are likely to be involved. Syed & Quinn Ltd 2011

4. Context • Supporting people whose capacity is ‘questionable’ to be supported to make decisions or to ensure decisions are made in the individuals best interest. Syed & Quinn Ltd 2011

5. Five Key Principles. • The whole act is underpinned by 5 key 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; Syed & Quinn Ltd 2011

6. Principles • 2. Individuals being supported to make their own decisions A person must be given all practicable help before anyone treats them as not being able to make their own decisions; Syed & Quinn Ltd 2011

7. Principles • 3. Unwise decisions Just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision Syed & Quinn Ltd 2011

8. Principles • 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 Syed & Quinn Ltd 2011

9. Principles • 5. Least restrictive option Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms. Syed & Quinn Ltd 2011

10. Clarification • Assessment of capacity should be specific to the decision needing to be made at a particular time. • Ensuring the individuals best interests – involve the person, have regard to past and present wishes, consult with people who know the person well, do not make assumptions based on the persons age, appearance, condition or behaviour. Syed & Quinn Ltd 2011

11. Best Interest Decisions • When an individual is assessed as not having capacity at this time to make a particular decision, a group of professionals and family can make a ‘best interest’ decision on the persons behalf. • In the code of practice there is a clear statutory checklist which must be applied before a best interest decision can be made. Syed & Quinn Ltd 2011

12. The Functional Test. 1 • Is there at that moment in time, an impairment of, or disturbance in, the functioning of the persons mind or brain? • Does such an impairment or disturbance make the person unable to make that particular decision? Syed & Quinn Ltd 2011

13. The Functional Test 2 • Understand the information relevant to that decision • Retain that information • Use or weigh that information as part of the process of making the decision • Communicate their decision. Syed & Quinn Ltd 2011

14. Designated decision makers • Lasting Powers of Attorney (LPAs) • The act allows a person to appoint an attorney to act on their behalf if they should lose capacity in the future. There are now two and they need to be set up separately. One is over money and property as before, the second allows people to empower an attorney to make health and welfare decisions. • Court Appointed deputies • The Act provides for a system of court appointed deputies to replace the current system of receivership in the existing court of protection. • Deputies will be able to make decisions on welfare, healthcare, and financial matters as authorised by the new court of protection but will not be able to refuse to consent to life –sustaining treatment. Syed & Quinn Ltd 2011

15. Public bodies • The New Court of Protection • The new court has jurisdiction relating to the whole act. It will have its own procedures and nominated judges. • It will be able to make declarations, decisions and orders affecting people who lack capacity and make decisions for or appoint deputies to make decisions on behalf of people lacking capacity. • A New Public Guardian • The Public Guardians have several duties under the act and will be supported in carrying these out by an Office of the Public Guardian. • They will supervise deputies appointed by the court and provide information to help the court make decisions. Syed & Quinn Ltd 2011

16. Three further key provisions: • Independent Mental Capacity Advocate Someone appointed to speak on behalf of a person who lacks capacity but has no-one to speak for them such as family or friends • Advance decisions to refuse treatment The Act creates statutory rules with clear safeguards so that people may make a decision in advance to refuse treatment if they should lack capacity in the future. • A new criminal offence The act introduces a new criminal offence of ill treatment or neglect of a person who lacks capacity. Syed & Quinn Ltd 2011

17. Criteria for referral to IMCA • Medical treatment • Accommodation reviews /issues • Safeguarding Adults The individual needs to have been assessed as not having capacity to make whichever one of the above decisions is relevant Syed & Quinn Ltd 2011

18. Deprivation of Liberty Safeguards. • The aim of the Deprivation of Liberty Safeguards is to provide legal protection for those vulnerable people who are deprived of liberty otherwise than under the Mental Health Act 1983. • The safeguards apply to people who lack capacity to consent to care or treatment, and who are suffering from a disorder of the mind. • Added as a supplement to the Mental Capacity Act 2005 using the vehicle of the Mental Health Act 2007. Were fully implemented in 2009. Syed & Quinn Ltd 2014