The Mental Capacity Act 2005

1. The Mental Capacity Act 2005

2. Learning Objectives • What is the Mental Capacity Act, including the Deprivation of Liberty Safeguards • Awareness of the 5 statutory principles of the Mental Capacity Act 2005 • How the Mental Capacity Act impacts on the role of the worker • How to carry out a capacity test • Awareness of Best Interest checklist

3. What is the Act? • Legal framework setting out who can take decisions, in which situations, and how they should go about this if the person lacks capacity to make the decision for themselves • Gives people who have capacity new ways to prepare for a time when they may lack capacity in the future

4. Why do you need to know about the Act? • As a paid employee who may come into contact with people who lack capacity you are legally required to have regard to the Act and the Code of Practice • Section 5 of the act allows staff to carry out acts in connection with care and treatment without fear of liability providing they follow the Code

5. The 5 Statutory Principles • Everyone is assumed to be capable of making a decision unless proven otherwise • Everything reasonable should be done to help a person make a decision • Everyone has the right to make unwise or eccentric decisions • Decisions made on the person's behalf must be in their best interests • The decision should be the least restrictive alternative

6. What is Mental Capacity? • Having mental capacity means that you are able to make your own decisions • Whenever the term ‘a person who lacks capacity’ is used in the Act it means: ‘a person who lacks capacity to make a particular decision or take a particular action for themselves at the time the decision or action needs to be taken.’ (Code of Practice p.3)

7. Who assesses capacity? • For significant decisions the ‘Decision-maker’ should assess capacity. This is the person proposing to take the action on the person’s behalf • For day to day actions carried out in connection with care or treatment which are in the persons best interests, no formal assessment is required and the principle of ‘reasonable belief’ applies

8. Assessment of Capacity Two parts; • Diagnostic Test Does the person have an impairment of, or disturbance in the functioning of the mind or brain? This could be due to: • a stroke or brain injury • a mental health problem • dementia • a learning disability • confusion, drowsiness or unconsciousness caused by illness, injury, infection or medication • substance or alcohol misuse

9. Assessment of Capacity Functional Test – can the person; • Understand information relevant to the decision • Retain information long enough to make the decision • Use or weigh up information relating to the decision • Communicate their decision – by any means If a person is unable to do any one or more of these things they lack capacity to make the decision

10. Best interests Statutory Checklist • Could the person regain capacity? • Permit and encourage participation • What are the person’s wishes and feelings, beliefs and values • Consider the views of family and carers • Consider all relevant circumstances

11. Two New Lasting Powers of Attorney (LPA) Under a LPA an individual (a donor) can appoint another person to act on their behalf in relation to certain decisions regarding • Property and Affairs – finance and property • Personal Welfare - matters including health care

12. Court of Protection • Court appointed deputies – personal welfare/property and affairs. • Following decisions must be bought to court: • Proposed withholding/withdrawal of artificial nutrition from patients in a permanent vegetative state • Organ or bone donation and non-therapeutic sterilisation of a person who lacks capacity to consent • All other cases where there is doubt or dispute about whether a treatment is in a persons best interests (p. 143, Code of Practice) • Has the power to remove attorneys and deputies if not acting in best interests.

13. Advance Decision to Refuse Treatment • You can now make an advance decision to refuse specific treatments • If this is recorded to meet all the requirements of the Mental Capacity Act it will be legally binding should you lose capacity, even if you decide to refuse life sustaining treatment

14. Independent Mental Capacity Advocates (IMCA) An IMCA must be instructed when a person lacks capacity and is ‘unbefriended’ for: • Serious medical treatment • Change of long term accommodation - a stay in hospital of 28 days + or in a care home for 8 weeks + An IMCA may be instructed for: • Care review • Safeguarding cases Referral line: 0845 6500081

15. Two New Criminal Offences • Ill treatment and wilful neglect of a person who lacks capacity • Applies to anyone caring for a person who lacks capacity- this includes family, carers, healthcare and social care staff in hospitals or care homes and those providing care in the persons own home, an attorney under an LPA or a deputy appointed by the Court of Protection • Carries a custodial sentence and/or a fine

16. Limitations under Section 6 Section 6 places limitations on protection liability: • The use of restraint or restrictions on a person’s liberty must be reasonable and proportionate to the need to prevent harm • Must not deprive the person of their liberty

17. Deprivation of Liberty Safeguards • Ensure compliance with the Mental Capacity (2005) & Mental Health (2007) Acts & European Court of Human Rights • Provide a legal framework to deprive a person of their liberty where it is unavoidable • Impose a duty to avoid deprivation of liberty where possible • Prevent arbitrary decision making • Provide a standard assessment process

18. When Can Someone Be Deprived of Their Liberty? • In their own best interests & to protect them/others from harm • If it is a proportionate response to the risks • There is no less restrictive option available • “….distinction between restriction & deprivation is that of degree & intensity v nature & substance” Based on the five core principles of the Mental Capacity Act 2005

19. Relevant Factors in Deprivation • Restraint used – level or type i.e. physical, medication • Staff use complete & effective control over care & movement – for a significant period • Staff exercise control over assessments, medication, contacts or residence • Staff decide on residents movements – visits, staying away, moving out • Staff refuse to discharge to alternate carers • Resident unable to maintain social contacts due to level of restrictions

20. What the Safeguards Cover • When & how to apply for authorisations • How, & by whom, an application should be assessed • Criteria for authorisations • Review process for authorisations • Support & advice to be provided to ‘Relevant Person’ • How authorisations can be challenged

21. Further information • Lincolnshire County Council website - http://www.lincolnshire.gov.uk/mentalcapacityservice • Deprivation of Liberty Safeguards and Mental Capacity Act Codes of Practice – available for download at www.dh.gov.uk • ULHT MCA Policy – available on the intranet. • Sue Glaister – ULHT Lead • Maureen Catterson - Deprivation of Liberty Safeguards Manager, NHS Lincolnshire. Tel: 01522 515399 • Simon Purdy – Deprivation of Liberty Safeguards Co-ordinator, Adult Social Care. Tel: 01522 554205 • Mick Skipworth – Lincolnshire Mental Capacity Service Manager, Adult Social Care. Tel: 01522 554205 • Sarah West – Mental Capacity Act Co-ordinator, Adult Social Care. Tel: 01522 554014 • Karen Rodgers – Mental Capacity Act Co-ordinator, Adult Social Care. Tel: 01522 554014