Mental Capacity Act 2005

1. Louise Wilson, Solicitor Mental Capacity Act 2005

2. MCA 2005 - Introduction • Royal Assent – April 2005 • Came into force April & October 2007 • Many common law principles now enshrined in statute • Court of Protection • Regulations • Code of Practice

3. MCA 2005 - Introduction • Capacity • Treatment/welfare decisions • IMCAS • LPAs and Court of Protection • Advance Decisions to Refuse Treatment • Research • Offences/Protection • Children & Young Persons • Deprivation of Liberty Safeguards (DoLS)

4. MCA and Children • MCA does not apply generally to under 16s • However, the offence of ill-treatment and neglect can apply to under 16s • Principles apply to 16 & 17 year olds • Parental consent/best interests – 16 & 17 year olds • Gillick competence

5. Capacity – 5 Principles • A person must be assumed to have capacity unless it is established that he lacks capacity; • A person is not to be treated as unable to make a decision unless all practicable steps to help him 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;

6. Capacity – 5 Principles • 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.

7. Assessment of Capacity • Who can/should assess capacity? • Need for formal assessment – • Legal matters • Grave decisions • Dispute • Risk of harm • Highest level of functioning • Balance of probabilities • Confidentiality

8. Assessing Capacity – 2 stage test Stage 1 – Diagnostic • Is there an impairment/disturbance in functioning of the mind/brain? Stage 2 – Functional • Is the impairment/disturbance sufficient to render person incapable of making that particular decision?

9. Assessing Capacity - Considerations • Note – capacity is time and issue specific • Unable to make a decision if: • Cannot understand the information relevant to the decision; or • Cannot retain that information; or • Cannot use or weigh that information as part of the process of making the decision; or • Cannot communicate his decision (whether by talking, using sign language or any other means)

10. Best Interests Checklist – s.4 • Principle of equal consideration and non-discrimination • best interests not to be determined merely by reference to age, appearance or condition/unjustified assumptions • All relevant circumstances • of which decision maker aware & it would be reasonable to regard as relevant • Regaining capacity • if this is likely, could decision be delayed? • Permitting and encouraging participation • views still relevant where a person lacks capacity

11. Best Interests Checklist – s.4 • Life sustaining treatment • must be no motivation to bring about persons death • starting point is best interests for life to continue • Persons wishes, feelings, beliefs and values • past and present (e.g. any relevant written statement) • beliefs and values likely to influence that person if they had capacity • View of others • statutory right of carers, family & others to be consulted • Attorney/Deputy • Only if “practicable and appropriate”

12. IMCAs • Duty on NHS body or LA to instruct an IMCA if serious medical treatment or provision of accommodation and no person appropriate to consult in determining best interests (other than engaged in providing care or treatment in a professional capacity or for remuneration) • Not required if Attorney or Deputy already involved

13. IMCAs • Does not apply to treatment under MHA 1983 • Serious medical treatment – involves providing, withdrawing or withholding treatment in circumstances where: • Single treatment – fine balance between benefits, burdens and risks to patient; • Choice of treatments – finely balanced; or • What is proposed is likely to involve serious consequences for the patient

14. IMCAs - Treatment • Can still provide treatment in an emergency • Must take into account any information given or submissions made by an IMCA but decision rests with health professional (IMCA will usually prepare a report for consideration) • Safeguarding issues

15. Powers/Functions of IMCAs • May interview person in private • May examine and take copies of a health record, social services record or care home records, if relevant to their investigation • May obtain further medical opinion • Consult with: • Professionals providing care/treatment • Other persons in a position to comment • Provide support so person may participate in decision, obtain relevant information, ascertain what likely to be wishes/feelings of person and alternative courses of action

16. Court of Protection The Court of Protection has wide ranging powers: • To make declarations • Make decisions and appoint Deputies • In relation to LPAs • To remove Deputies or Attorneys who act improperly

17. Court of Protection - Declarations • Capacity • Dispute between professionals • Dispute between family members • Lawful actions

18. Court of Protection - Declarations Should always apply to Court: • Withholding or withdrawal of artificial nutrition and hydration for PVS patients • Organ or bone marrow donation involving a person lacking capacity • Non therapeutic sterilisation • Some termination of pregnancy cases • Other cases where there is doubt or dispute about best interests

19. Advance Decisions • Life-sustaining treatment: • Must be in writing • Must be signed by person (or in their presence if they are unable to do so themselves) • Must be witnessed • Must include a statement that it is to apply even if life is at risk

20. Advance Decisions • Must specify the treatment that is to be refused (general desire stated does not constitute an advance decision) • Must set circumstances in which refusal will apply • Will only apply once the person lacks capacity • Where possible oral decisions should be recorded in case notes • Need to consider if meet validity and applicability requirements • Can treat in an urgent situation if validity unclear and matter is being referred to the Court

21. Summary • Ensure MCA principles are followed – protection for the patient and for professionals • Do not make presumptions of best interests • Documentation is crucial • Cannot be forced to provide medical treatment which is not felt to be in a patient’s best interests. Ensure follow GMC guidance • Seek legal advice if in doubt about a decision

22. Contacts • Court of Protection – Archway Tower – 0300 456 4600 • Royal Courts of Justice – 0207 947 6000 • Office Public Guardian – 0300 456 0300 • Emergency out of hours applications – 0207 947 6000 – explain nature of the case to security staff who will contact duty Judge