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This article discusses the key aspects of the Mental Capacity Act 2005 and its Code of Practice, including assessing mental capacity, dealing with emergencies, and making decisions in a person's best interests. It provides practical guidance for front line staff working with individuals who may lack capacity to make decisions themselves.
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The Mental Capacity Act 2005Implications for Front Line Staff Richard Williams Professor of Mental Health Strategy, University of Glamorgan Professor of Child and Adolescent Mental Health, University of Central Lancashire Scientific Adviser to the Emergency Preparedness Division, Department of Health
My agenda for today • The Mental Capacity Act 2005 and its Code of Practice • Mental capacity • Assessing capacity • What to do in emergencies • Best interests • Protection of carers • Other instruments, offices and relationships • Concluding comments
The Mental Capacity Act 2005 • Covers a wide range of decisions or actions taken on behalf of people who MAY lack capacity to make decisions fore themselves • There are certain decisions that can NEVER be made on behalf of a person who lacks capacity and some are related to health and healthcare
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 oin 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
Mental capacity • Mental capacity is the ability to make a decision • Lack of capacity • ‘For the purposes of this Act, 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’ • This means that a person lacks capacity if: • They have an impairment or disturbance (for example, a disability, condition or trauma) that affects the way their mind or brain works, and • The impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made • May be: • Permanent • Partial • Temporary • Change over time
Assessing capacity • Stage 1: Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? • Stage 2: Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?
Stage 1: Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? • Examples of conditions • Conditions associated with mental illness • Dementia • Significant learning disabilities • Long-term effects of brain damage • Physical or medical conditions that cause confusion, drowsiness or loss of consciousness • Delirium • Concussion following a head injury • The symptoms of alcohol or drug use
Stage 2: Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to? • ‘A person is unable to make a decision if they cannot: • Understand the relevant information about the decision to be made • Retain that information in their mind • Use or weigh that information as part of the decision-making process, or • Communicate their decision (by talking, using sign language or any other means)’
Understanding the information • What information is relevant • The nature of the decision • The reason why the information is needed • The likely effects of deciding one way or another, or making no decision at all • Advice • Take time to enable the person to take in the information • Try to give the most appropriate amount of information (avoid confusion and under informing • Provide info on risks and benefits • Explain effects of the decision on themselves and on close persons and carers • If there is a choice present the info in a balanced way • Consider if the person requires advice from another source
Emergencies • ‘Clearly, in emergency situations (for example, where a person collapses with a heart attack or for some unknown reason and is brought unconscious into a hospital), urgent decisions will have to be made and immediate action taken in the person’s best interests’ • ‘In these situations, it may not be practical or appropriate to delay the treatment while trying to help the person to make their own decisions, or to consult with any known attorneys or deputies’ • ‘However, even in emergency situations, healthcare staff should try to communicate with the person and keep them informed of what is happening’
Best interests • Not defined in the law … but … • Provides a checklist of common factors that must be considered when coming to a view as to a person’s best interests • Encourage participation • Identify all relevant circumstances • Find out the person’s views • Avoid discrimination • Assess whether the person might regain capacity • Make no assumptions about quality of life or be motivated by a desire to bring about death in the case of life-sustaining treatment • Consult others • Avoid restricting the person’s rights • Weigh up all of the foregoing factors
Protections for providers of care • Section 5(1) of the Act provides possible protection for actions carried out in connection with care and treatment carried out on behalf of someone who is believed to lack capacity for the action so long as it is in that person’s best interests and that includes diagnostic or other procedures is included in treatment • Steps for carers to bear in mind • Acting in connection with the care or treatment … • Checking whether the person has capacity to consent • Acting in the person’s best interests • Understanding possible limitations on protection from liability • Paying for necessary goods and services
Other instruments, offices & relationships • Lasting Power of Attorney • Advance decisions to refuse treatment • Role of Court of Protection and court-appointed deputies • Independent Mental Capacity Advocate service • Research involving persons who lack capacity • Children and young people • Relationship of MCA with Mental Health Acts 1983 and 2007
