Session Two Assessing capacity under the Mental Capacity Act 2005

1. Mental Capacity Act 2005: a practice-based courseSupporting older people in care homes and the community as they would like Session Two Assessing capacity under the Mental Capacity Act 2005

2. 5 key 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 must be done, or made, in their 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 which is less restrictive of the person’s rights and freedom of action.

3. Assessing capacity Factors to be considered in assessing for capacity • General intellectual ability • Memory • Attention and concentration • Reasoning • Information processing • Verbal comprehension and expression • Cultural influences • Social context • Ability to communicate.

4. The two stage test of capacity • Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain? • If so, is the impairment or disturbance sufficient that the person lackscapacity to make that particular decision? This 2-stage test must be used and your records should show it has been used Taken from Mental Capacity Act Code of Practice, section 4.11 – 4.13

5. Assessing capacity Remember, any assessment of a person’s capacity must consider the following factors: • Their ability to understand the information • Their ability to retainthe information related to the decision to be made • Their ability to use or assess the information while considering the decision • Their ability to communicate the decision – by any means. If they are unable to do any of the above, they are unable to make the decision for themselves.

6. Assessing capacity - Viktor • Viktor is a 79-year-old Ukrainian man who has severe chronic obstructive pulmonary disease which makes it difficult for him to breathe. He is also a little confused at times. • Viktor lives in a care home. • Every winter the local GP visits the home to give the residents flu immunisation. • When the GP tells Viktor that he has come to give him his flu jab, Victor refuses to have the injection. • The GP explains that it is particularly important for him to have the flu jab because of his breathing problems but Viktor is adamant that he does not want the vaccine. Scenario taken from Department of Health (2007) ‘Mental Capacity Act 2005: Residential Training Set’. What should Viktor’s key worker do? What are your initial considerations?

7. Assessing capacity - Albert • Albert is a 82 year old man who lives in his own home. He has visits from care workers 3 times a day to help him with his personal care and administer his medication from a dosette box. He has been diagnosed as having dementia. • He also has epilepsy and this has been controlled on tablets. Last week he refused to take his tablets on two occasions and this was reported to the GP. He then had an epileptic fit which was witnessed by one of the care workers, but he recovered quickly. • The GP visited and has advised the care worker that his anti-epileptic tablets should be covertly administered. As the manager of the domiciliary care agency, what are your initial considerations?

8. Additional information about Viktor • He does not understand or speak English well. • He has a daughter, Mrs Lilia Crosby, who visits daily and who speaks his native language. • She told staff in the home that her father had flu 2 winters ago and was very ill. • She also told staff that her father had the flu jab last winter and did not have flu. Complete the SHARP ‘Making Decisions under the MCA’ document, to demonstrate the decision-making process, adding any other details and information to support your decision

9. Additional information about Albert • Albert has a daughter, Mrs Links, who lives nearby. • She says that her father has never liked taking tablets and has had epileptic fits in the past when he stopped taking his tablets. • She says his memory is such that he does not remember how seriously ill he has been when he has had fits. Complete the SHARP ‘Making Decisions under the MCA’ document, to demonstrate the decision-making process, adding any other details and information to support your decision

10. Discussion - Viktor • Who is the decision makerin this case? • What strategies could you use to help Viktor make his decision? • Did you assess that Viktor was unable to • understand the information and/or • retain the information, and/or • use and assess the information, and/or • communicate his decision? • If you answered yes to one or more of the above, then he is unable to make the decision himself? • Did you decide Viktor should have the immunisation or not? • What could be the possible consequences of givingthe injection, without following the MCA requirements? • What could be the possible consequences of not givingthe injection, without following the MCA requirements?

11. Discussion - Albert • Who is the decision maker in this case? • What strategies could you use to help Albert make his decision about taking his tablets? • Did you assess that Albert was unable to • understand the information and/or • retain the information, and/or • use and assess the information, and/or • communicate his decision? • If you answered yes to one or more of the above, then he is unable to make the decision himself? • What did you decide about how Albert’s medication should be managed? • If covert administration is to be used who else must you consult with for authorisation? • Is there another less restrictive option, which may be more appropriate?

12. Planning care and support – determining “best interests” The statutory (legal) check list: • Avoid making assumptions about someone’s best interests merely on the basis of the person’s age, appearance, condition or behaviour. • Consider a person’s own wishes, feelings, beliefs and values and any written statements made by the person when they had capacity. • Take account of the views of family and informal carers. • Can the decision be put off until the person regains capacity? • Involve the person in the decision-making process. • Demonstrate that you have carefully assessed any conflicting evidence or views. • Provide clear, objective reasons as to why you are acting in the person’s best interests. • Take account of the views of any Independent Mental Capacity Advocate. • Take the less restrictive alternative or intervention.

13. 2 scenarios to consider Esther lives in a care home. • She has severe dementia. • Esther has asked the staff to buy a Christmas present for her daughter • However, she cannot remember what her daughter likes. Scenario taken from Department of Health (2007) ‘Mental Capacity Act 2005: Residential Training Set’. You are her Key Worker Discuss in your groups what you should do? Maria lives in her own home • She has severe dementia. • Care workers visit her once a day to help her cook her lunch and tea. • The care worker notices that in the fridge there is a lot of food with mould growing on it. You are her Key Worker Discuss in your groups what you should do?

14. Esther and Maria Esther • The staff use Esther’s personal allowance to buy the present for her daughter, as they did in the past when Esther was able to ask them to buy her daughter her favourite soap. • They keep the receipt, give it to the home administrator and write down what they have done in Esther’s care plan. Maria • Assess capacity for deciding about the edibility of the food. • If Maria lacks capacity, act in her ‘best interests’. • What action should the care worker take? • Record in care plan.

15. Safeguards for staff There are safeguards in the MCA for staff making decisions on behalf of people who lack capacity. Staff have statutory or legal protection for best interests decisions providing that they can demonstrate they: • have taken reasonable steps to assess capacity to make a decision • reasonably believe that the person lacks capacity to make that decision • reasonably believe that the decision is in the person’s best interests However, staff will not be protected if they act negligently

16. Esther and Maria • For Esther, as staff have sufficient information to explain why and what they did, staff will be protected if anyone asks why they bought such an expensive soap. • For Maria, if staff have sufficient information to demonstrate that they acted in best interests, to prevent Maria from eating potentially harmful food, they will be protected.

17. Summary • 5 key principles • 2 stage test for capacity • 4 stage assessment or capacity • 5 stage ‘best interests’ criteria • ‘The 5:2:4:5 aide memoire’