Mental Capacity Act 2005

Mental Capacity Act 2005

The presentation is an overview and will cover: • Part one - background and key policy • Why we needed the Act and who it affects • The Mental Capacity Act principles • Assessing capacity • Best interests

The presentation will cover: • Part two - what will be different in 2007 and implementation • Planning ahead if you think you might lack capacity in the future • What happens if you lack capacity • The Independent Mental Capacity Advocate (IMCA) • Research • Interface with Mental Health Act 1983 • How the Act is supported - the Code of Practice, the Court of Protection and the Public Guardian • Implementation

Part One • Background and key policy

Why we needed the Act and who it affects • Mental capacity is the ability to make decisions for ourselves, for example about what we eat everyday or deciding where to live • It is an issue that could potentially affect everyone • Up to 2 million people in England and Wales lack mental capacity to make some decisions for themselves, for example, people with: • dementia • learning disabilities • mental health problems • stroke and brain injuries • Up to 6 million family and unpaid carers, and people involved in health and social care who may provide care or treatment for them

Why we needed the Act and the current situation Did you know that at present • there is no formal legal status for “next of kin”? • if your loved one is in hospital voluntarily but unable to consent to treatment, you have no legal right to give consent on their behalf, or to be consulted about their treatment? • if you lack capacity in the future, there is no statutory mechanism whereby you can state your wishes for your future care with the expectation that your wishes will be taken into account?

Why we needed the Act and the current situation • There is no clear mental capacity legislation in England and Wales • Current common law lacks consistency • People’s autonomy to make decisions is not always respected • People can be written off as “incapable” because of diagnosis

Why we needed the Act and the current situation • There is no clear legal authority for people who act on behalf of a person lacking mental capacity • There are only limited options for people who want to plan ahead for loss of mental capacity • There is no legal right for relatives and carers to be consulted • Enduring Powers of Attorney seen as open to abuse

The Act contains 5 principles • Assume a person has capacity unless proved otherwise • Do not treat people as incapable of making a decision unless all practicable steps have been tried to help them • A person should not be treated as incapable of making a decision because their decision may seem unwise • Always do things or, take decisions for people without capacity, in their best interests • Before doing something to someone or making a decision on their behalf, consider whether the outcome could be achieved in a less restrictive way

Assumption of capacity and supported decision making • The Act sets out an assumption of capacity • There is an obligation to take all practicable steps to help the person take his or her own decision • The Act makes it clear that a person’s age, appearance, condition or behaviour does not by itself establish a lack of mental capacity • Information must be given in a clear and easy to understand way • The person who lacks capacity must be helped to communicate

Assessing capacity • The Act sets out the best practice approach to determining capacity. This means whether an individual is able, at a particular time to make a particular decision • Assessment of capacity should be specific to the decision needing to be made at the particular time • Detail on what is involved in assessing capacity is covered in the Code of Practice

Best Interests • All decisions must be made in the best interests of the person who lacks capacity • Any best interests decisions relating to life-sustaining treatment must not be motivated by a desire to bring about the person’s death • The decision maker must consider all relevant circumstances

Best interests • The Act doesn’t define best interests but does give a checklist. The decision maker must: • involve the person who lacks capacity • have regard for past and present wishes and feelings, especially written statements • consult with others who are involved in the care of the person • not make assumptions based solely on the person’s age, appearance, condition or behaviour

Part Two • The Act will come into force during 2007 - so what will be different?

Planning ahead for a time when you might lack capacity • The Act provides new and more clearly defined ways of planning ahead. These are: • 1. Lasting Powers of Attorney (LPA’s) • 2. Advance decisions to refuse treatment • 3. Making your wishes and feelings known

1. Lasting Powers of Attorney (LPA) • The Act enables people to appoint someone they know and trust to make decisions on their behalf for a time when they may lack capacity. This is called a Lasting Power of Attorney. • There are two types of LPA • ‘Property and affairs’ which replaces the current Enduring Power of Attorney • ‘Personal welfare’ which is a new way to appoint someone to make health and welfare decisions • A person can only make an LPA when they have capacity

1. Lasting Powers of Attorney (LPA) • An LPA must be registered with the Public Guardian before it can be used. • The chosen attorney's must have regard to the Code of Practice, which includes acting in the donor's best interests . • A public consultation on forms and guidance for LPAs was held in 2006. The revised forms and guidance will be published in 2007.

2. Advance decisions to refuse treatment • This allows people to refuse specified medical treatment in advance • They are currently sometimes called ‘living wills’ or ‘advance directives’ and are legally binding but the Act gives greater safeguards • They must be made when a person still has capacity and comes into effect if they lack capacity

2. Advance decisions to refuse treatment • It must be clear about which treatment it applies to and when and must be in writing and witnessed if it applies to life-sustaining treatment • Doctors can provide treatment if they have any doubt that the advance decision is not valid and applicable

3. Making your wishes and feelings known • A person can help people make decisions for them in their best interests by letting them know any particular wishes and feelings the person may have • There is no formal process for this but written statements given to professionals, carers, family or friends are likely to carry weight • Decision makers will have to consider a person’s wishes and feelings when deciding what is in the person’s best interests

What happens if you lack capacity • The Act allows people to lawfully provide care and treatment to someone who lacks capacity if it is in their best interests • If necessary - an application can be made to the Court of Protection (for both finance and health and welfare issues) • The Independent Mental Capacity Advocate (IMCA) is an extra safeguard for particularly vulnerable people in specific situations

What happens if you lack capacity • The Act sets out a provision of care and treatment: • If a person has no welfare LPA or advance decision to refuse treatment they can still be provided with the care or treatment they need • The person providing the care or treatment decides what is in their best interests • The decision maker must follow the principles of the Act

What happens if you lack capacity • 2. Application to the Court of Protection • (A) Orders of the court - a person can make applications to the Court of Protection for complex or difficult welfare decisions or simple one-off financial decisions • (B) Court appointed deputies – can be used when a series of decisions are needed and a single court order is insufficient

What happens if you lack capacity • 2. Application to the Court of Protection • (A) Orders of the court – the court can make the following orders: • welfare decisions • financial decisions • Declarations on whether someone lacks capacity

What happens if you lack capacity • 2. Application to the Court of Protection • (B). Court Appointed Deputies • Court appointed deputies - could be used when a series of decisions are needed and a single court order is insufficient • The Court will decide if appointing a deputy is in the person’s best interests • The Office of the Public Guardian (OPG) will supervise the person appointed • The deputy must still allow the person who lacks capacity to make whatever decisions they are able to • The deputy must make decisions in the person’s best interests

What happens if you lack capacity • 2. Application to the Court of Protection • (B). Court Appointed Deputies • There are three types of situations where a deputy might be appointed: • To make financial decisions • To make welfare decisions • To make both financial and welfare decisions • Current receivers will automatically become deputies • Current system of receivers will be replaced by deputies appointed by the Court

What happens if you lack capacity • 3. The Independent Mental Capacity Advocate (IMCA) • IMCA’s are an extra safeguard for particularly vulnerable people in specific situations • There is a duty on local authorities or NHS bodies to provide this service where necessary - services currently being commissioned with new monies • IMCA’s will be given to people who have no friends or family with whom it is practicable to consult

What happens if you lack capacity • 3. The Independent Mental Capacity Advocate (IMCA) • When? - When decisions are being made about serious medical treatment or significant changes of residence e.g. moving care homes or hospital • Local authorities and NHS also have the discretion to extend IMCA services to include accommodation reviews and adult protection procedures • What? - The IMCA will represent and support the person who lacks capacity

What happens if you lack capacity • 3. The Independent Mental Capacity Advocate (IMCA) • Seven IMCA pilots were launched in January 2006. Evaluation has shown: • majority of referrals were for accommodation issues • importance of services and decision-makers being aware of IMCAs and understanding their role • IMCAs generally seen as very beneficial • IMCAs do not slow decision-making process

What happens if you lack capacity • 3. The Independent Mental Capacity Advocate (IMCA) • IMCAs will come into effect in England from April 2007 together with some parts of the Act being introduced solely to support that service (principles, assessing capacity, best interests) • In Wales IMCAs will come into effect from October 2007

Research • The Act: • sets out new safeguards for many types of research involving people who lack capacity • balances the right for people without capacity to benefit from properly conducted research with the need for strict safeguards • says the interests of the person are more important than the interests of science and society

Research - safeguards • Research must be approved by independent experts to confirm it is necessary, safe and is intended to help understand or treat the person’s condition • Carers, family or a nominated independent person who has no connection with the particular research project must give permission and can say no at any time

Research - safeguards • The research must stop if the person shows signs of not wanting to be involved • A public consultation on research regulations was held in 2006. The regulations will be laid in Parliament in early 2007

Relationship between the Mental Capacity Act and the Mental Health Act 1983 • The Mental Capacity Act does not apply to any treatment being given under Part 4 (consent to treatment) of the Mental Health Act 1983 • for example, advance decisions to refuse treatment for a mental disorder can be over-ruled if someone is subject to compulsory treatment for the disorder under the Mental Health Act

How is the new legal framework being supported? • The legal framework of the MCA is being supported in these ways: • 1. Code of Practice • 2. New Office of the Public Guardian • 3. New Court of Protection • 4. Criminal offence

1. Code of Practice • The Act sets out a broad framework - the Code will flesh out that framework • The Code has legal force and the following must have regard to it: • Those with formal powers (attorneys/deputies) • Those acting in a professional capacity or who are being paid, such as health and social care staff • Those carrying out research under the Act • IMCA’S

1. Code of Practice • Informal carers will be encouraged to be aware of and follow the Code of Practice • The draft Code was published for consultation in 2006 • The revised Code will be published in early 2007 and available to use from April 2007

2. Office of the Public Guardian (OPG) • The OPG will: • build upon and replace the Public Guardianship Office • maintain a register of LPA’s, EPA’s and deputies • co-operate with other agencies to supervise deputies and investigate complaints • provide evidence to the court • provide information and guidance to the public • work on processes and procedures that underpin the new organisation

3. Court of Protection • The Court of Protection: • is a single specialised court staffed by trained judiciary • will have a regional presence and an informal style It will combine: • The current Court of Protection (property and affairs) • The current High Court jurisdiction (welfare including healthcare)

3. Court of Protection • Public consultations on Court rules and Court (and OPG) fees were held in 2006 • The Court rules and details of Court (and OPG) fees will be available in 2007

4. Criminal Offence • The Act sets up a new offence of ill treatment or wilful neglect of someone who lacks capacity by someone caring for them • Work is underway with the Crown Prosecution Service, Home Office and police to implement the criminal offence • The criminal offence will come into force in England and Wales from April 2007

Implementation - timescale and responsibilities • The Act is due to come into effect during 2007 in England & Wales and will affect people aged 16 and over • IMCAs in England, together with some directly supporting parts of the Act related to the service, and the criminal offence will come into effect from April 2007 and the Code of Practice will also be available from April 2007 • The rest of the Act, together with IMCAs in Wales, will come into effect in England and Wales in October 2007

Implementation - timescale and responsibilities • The Mental Capacity Implementation Programme (MCIP) is responsible for making this happen and consists of 4 organisations: • Department for Constitutional Affairs (DCA) • Department of Health (DH) • Public Guardianship Office (PGO) - future OPG • Welsh Assembly Government (WAG)

Implementation - legislation and processes • DCA co-ordinating MCIP and dealing with: • Regulations and consultations on Code of Practice, LPA forms and guidance (and changes to EPAs), Court Rules, Fees, Public Guardian and PG Board • Communications and stakeholder involvement including public awareness raising and information provision • PGO - ‘business as usual’ + EPA/receivership transition but also designing new structures, procedures, roles for OPG including customer service and advice function

MCA leads – supporting implementation • Appointment of 8 regional MCA leads in 8 regional Care Services Improvement Partnership (CSIP) regions • Six primary tasks – disseminated via Chief Executives’ Bulletin in July • Initially focussed on supporting the commissioning of the IMCA service • Also 150 local authority implementation leads in England and implementation leads in Wales

Training materials • Generic set • “Customised” sets • Acute hospitals • Mental health services • Residential accommodation • Primary and community care

Production of training materials • SCIE (Social Care Institute of Excellence) • UCLAN (University of Central Lancashire) • Currently piloting materials • Available electronically and in hard copy early in 2007

Training monies 2006 / 08 • Money to be distributed in 2006/07 and 2007/08 via local implementation networks • Opportunity for national voluntary organisations, representative bodies, Royal Colleges and others to bid for funds to support training, production of specialist guidance, early impact studies and wider implementation in 2006/07

Other activity • Discussions ongoing with CSCI and Healthcare Commission re MCA being monitored via their inspection; by self assessment and by revised National Minimum Standards • Dissemination of self assessment tool – July 2006 via Chief Exec’s Bulletin – statutory sector and independent and voluntary sector hospitals. • Another tool to follow for non-statutory sector

Implementation - information for stakeholders • General awareness raising • e.g. newsletter, leaflet, “launch” events, websites, media • More targeted communication on key stakeholder groups • e.g. Mental Capacity booklets, stakeholder events, specialist media, information in accessible formats • Specialist communication • e.g. IMCAs, LPA forms and guidance

Mental Capacity Act 2005