Mental Capacity Act – Principles and Practice

1. Mental Capacity Act – Principles and Practice Steve Blades GP Lead for Adult Safeguarding

2. Aims • Understand principles of Mental Capacity Act • Understand how to make a best interests decision • Recognise role of Deciding Right documents • Understand role of the Independent Mental Capacity Advocate (IMCA)

3. Mental Capacity Act 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 • 2. Individuals being supported to make their own decisions • People must be given all practicable help before anyone treats them as not being able to make their own decisions • 3. Unwise Decisions • Just because a person makes what might seem as an unwise decision, they should not be treated as lacking in capacity to make that decision • 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 • 5. Least Restrictive Option • Anything done for, or on behalf of a person who lacks capacity, should be the least restrictive of the basic rights of freedoms

4. Decision Tree Person Makes Decision Has Capacity Pre-Assessment - do everything to help the person to make a decision Assess Capacity - 2 Stage Test. Impairment or disturbance in mind or brain? No Unable to make decision at time needs to be made? Can they: -Understand the information relevant to the decision -Retain that information -Use or weigh that information as part of the process of making the decision -Communicate their decision All Yes Is there a valid & applicable LPA, EPA, Advanced Decision in place They make the decision Yes Decision Maker makes decision No Best Interests Assessment

5. Pre-assessment of capacity • Where there is reason to believe a person lacks capacity you will need to consider; • has everything been done to help the person to make a decision? • does this decision need to be made without delay? • If still capacity questionable, move on to next phase of assessing

6. Assessing Capacity • A person lacks capacity in relation to a matter if at the material time they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain

7. Two stage assessment of capacity • Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind works? (It does not matter whether the impairment or disturbance is permanent or temporary) • If yes does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made? • Any question whether a person lacks capacity must be decided on the balance of probabilities

8. Assessing capacity (MCA1 form) • A person is unable to make a decision for themselves if they are unable to: • Understand the information relevant to the decision • Retain that information • Use or weigh that information as part of the process of making the decision • Communicate their decision (whether by talking, using sign language or any other means).

9. Powers of Attorney • Enduring Power of Attorney • Lasting power of attorney - Health and welfare - Property and affairs • Office of Pubic Guardian • Court of Protection

10. Decision Tree Person Makes Decision Has Capacity Pre-Assessment - do everything to help the person to make a decision Assess Capacity - 2 Stage Test. Impairment or disturbance in mind or brain? No Unable to make decision at time needs to be made? Can they: -Understand the information relevant to the decision -Retain that information -Use or weigh that information as part of the process of making the decision -Communicate their decision All Yes Is there a valid & applicable LPA, EPA, Advanced Decision in place They make the decision Yes Decision Maker makes decision No Best Interests Assessment

11. Deciding Right Guidance and Forms • Principles of care planning • Advance care planning (ACP) • DNACPR • Advance decision to refuse treatment (ADRT) • Emergency health care plans (EHCPs)

12. Outcomes of Advance Care Planning • Advance statement of wishes and feelings, beliefs and values • Advance decision to refuse treatment • Lasting power of attorney

13. Advance decisions to refuse treatment • A decision to refuse specific treatment and is binding • Can only be made by an individual with capacity but becomes active only when they have lost capacity • Staff must be able to recognise when an advanced decision is valid and applicable • Must be valid, written, signed and witnessed if life sustaining treatment is being refused

14. Events making an ADRT invalid • the person withdrew the decision while they still had capacity to do so • after making the advance decision, the person made a Lasting Power of Attorney (LPA) giving an attorney authority to make treatment decisions that are the same as those covered by the advance decision • the person has done something that clearly goes against the advance decision which suggests that they have changed their mind

15. ADRT is not applicable if • the proposed treatment is not the treatment specified in the advance decision • the circumstances are different from those that may have been set out in the advance decision, or • there are reasonable grounds for believing that there have been changes in circumstance, which would have affected the decision if the person had known about them at the time they made the advance decision

16. Best Interests Decision • The person making the decision is know as the ‘Decision Maker’ they will normally be; - the carer responsible for the day to day care or - a professional such as a doctor, nurse, social worker where decisions about treatment, care arrangements or accommodation have to be made • There can also be joint decision makers • The person delivering the care or treatment makes the decision about whether to deliver that care or treatment

17. Best Interests Decision Making • Don’t make assumptions about a person’s best interests • Is the person likely to regain capacity, if so, can the decision wait • All relevant circumstances must be considered • Involve the person as fully as possible • Past and present wishes, feelings, beliefs and values e.g. religious, cultural and moral considered and any advance statements / decisions • Must consult other people if appropriate and practicable and take account of views • Where the determination relates to life sustaining treatment….must not be motivated by desire to bring about death

18. Best Interests Record Keeping • Clear record keeping is crucial • Day-to-day - record and review, but elaborate records not required on every occasion about every decision/act of care • Consider using MCA 1 and 2 if capacity is in doubt and for a course of care / treatment and/or life changing decisions/events are necessary and especially where; • There is conflict with family • There are adult safeguarding or public protection issues • Accommodation change – long term care, hospital admission • Any case conference convened around a serious issue • Where physical interventions are proposed for a patient not detained under MH Act or where there maybe restriction of liberty issues e.g. concealed medication

19. Care and Treatment • MCA provides legal protection from liability (Section 5) for carrying out actions in connection with care and treatment of people who lack capacity provided; • You have observed the principles of MCA • You have carried out assessment of capacity and reasonably believe the person lacks capacity in relation to the matter in question • You reasonably believe action is in the best interests of the person

20. Relationship between Mental Capacity Act and Mental Health Act Does the person have a mental health condition and predominantly need treatment for a mental health disorder? Yes No Does the patient have capacity? Does the patient have capacity? Yes No Yes No Use MHA Patient needs to make decisions Consider MCA but MHA needed for detention Use MCA. DOLS may apply

21. Deprivation of Liberty Safeguards • Cover people aged 18 or over in hospital or care homes • DOL safeguards are to prevent arbitrary decisions that deprive vulnerable people of their liberty • Do not apply if detained under Mental Health Act • Beyond restraint or restriction of liberty – difference of degree of intensity not of nature or substance • LA are supervisory bodies

22. Restraint • Section 6 of the MCA defines restraint as • ‘the use or threat of force where an incapacitated person resists or any restriction of liberty of movement whether or not the person resists’ • Restraint is only permitted if • the person using it reasonably believes it is necessary to prevent harm to the incapacitated person • and • the restraint used is proportionate to the likelihood and seriousness of the harm • Section 6 makes it clear that it does not provide any protection for an act depriving a person of their liberty

23. Independent Mental Capacity Advocacy (IMCA) • ‘An IMCA is someone appointed to support a person who lacks capacity but has no one to speak for them in a dispute’ • You must refer to IMCA if service user • lacks capacity and • has no one ‘appropriate or practicable’ to speak for them • needs decisions regarding ‘serious medical treatment’ (excluding Mental Health Act treatment) or a change in a person’s accommodation (28 days in hospital, 8 weeks in care home) • Must consider referring if safeguarding issues

24. Serious Medical Treatment Involves • Giving new treatment, stopping treatment or withholding treatment that could be offered where • There is a fine balance between likely benefits and burdens • A decision between treatment options is finely balanced • Or proposed treatment is likely to have serious consequences which include • Serious and prolonged pain, distress or side effects • Potentially major consequences e.g. stopping life sustaining treatment • Serious impact on person’s future life choices e.g. ability to have children

25. Role of IMCA • Respond within 2 working days • Meet with the person and speak to those who know them to find out as much as possible about the persons wishes, values and beliefs • Talk to professionals involved • Attend relevant meetings

26. Role of IMCA • Submit a written report to the decision maker • Recommend any courses of action that may help to support the decision making process • Enable the decision maker to make decisions in the best interests of the person • Challenge the decision if it does not seem appropriate

27. IMCA referrals • Use referral form • Clear decision to be made • Recent assessment of decision specific capacity • Phone and discuss

28. IMCA contact details • Newcastle, North Tyneside and Gateshead Your Voice Counts 4786472 www.yvc.org.uk • Northumberland Spiral Skills 0191 2715353 www.spiralskills.org

29. Decisions that cannot be made for someone lacking capacity • Consenting to marriage or a civil partnership • Consenting to have sexual relations • Consenting to a decree of divorce on the basis of two years’ separation • Consenting to the dissolution of a civil partnership • Consenting to a child being placed for adoption or the making of an adoption order • Discharging parental responsibility for a child in matters not relating to the child’s property, or • Giving consent under the Human Fertilisation and Embryology Act 1990.

30. Contact Details • Steve Blades GP lead for safeguarding adults stephen.blades@nhs.net • Deciding Right www.theclinicalnetwork.org