Transcript Mental Capacity Act - Welcome to the BHBT Directory

2005
MENTAL CAPACITY ACT
Why is it necessary
 When person lacks capacity physicians have
power and influence over them which could
be abused
 30% pts on acute medical wards may lack
capacity
 2 million people in UK lack capacity
 Until this act no statutory law covered this
area
Lack of capacity
• Causes
– Mental illness
– Acute physical illness
– Learning difficulties
– Dementia
• Just because a person has a condition
that might mean they lack capacity does
not mean that they are incapable of
making all decisions
The new Act
 Codifies previous common law
 Introduces a code of practice
 A criminal offence for wilful neglect or ill
treatment of people without capacity
 A new role of independent mental capacity
advocate service - IMCA
 Advanced decisions
Key Principles
• Capacity should always be assumed
• Persons ability to make decisions should be
optimised before concluding capacity is absent
• Patients are entitled to make unwise decisions
• Decisions and actions made for people lacking
capacity must be in their best interests
• Such decisions must always be the least
restrictive options for their basic rights and
freedoms
The code of practice
 Designed to guide those responsible for
interpreting the act
 Clinicians are legally required to “have regard
to” its guidance and if later asked prove they
did
 Any departures form it will be hard to justify
 Is available online
Independent mental capacity
advocate
 A person who is assigned to support and
represent “unbefriended” people who lack
capacity
 Clinicians do not have to adhere to their
decisions but must take them into account as
part of the decision making process
 The code specifies when to instruct an
independent mental capacity advocate
IMCA
• They should can be instructed for
– Care reviews
– Adult protection cases
• They must be instructed and then consulted
when
– Serious medical treatment is being proposed
• Ventilation, major surgery, chemotherapy, etc.
– When accommodation for > 28 days in hospital or
8/52 in a care home is being considered
Lasting power of attorney
 A person can appoint a named person “the
donee” with the authority to make decisions
on their behalf if they lost capacity
 It applies to
 Property and affairs
 Personal welfare
 Health care
 Social affairs
Lasting power of attorney
• It includes all decisions except those about
withdrawal of life saving treatment unless
explicitly authorised in the agreement
• Property and affairs lasting power of attorney
can start before the person looses capacity
• Clinicians treating people without capacity
must follow the decision of the “donee”
unless they are thought not to be acting in
the persons best interest
Lasting power of attorney
 The limits of the power granted are specified
 Decisions about life sustaining treatment
must be specified
 A signed statement from the attorney and a
certificate completed by an independent
third party are required
 The court of protection can appoint a deputy
for someone who already lacks capacity
Advanced decisions
 Can be drawn up by anybody to specify
treatments they would not want if they lost
capacity
 They cannot demand treatments
 As long as they were drawn up when person still
had capacity and are specific enough to cover the
person’s current predicament they must be
respected
 They can be reversed if the person regains
capacity
Advanced decisions
 They can be made verbally
 Decisions that refuse life sustaining
treatment have to be written, signed
and witnessed to be valid
Court of Protection
 Adjudicates on the following for
people who lack capacity
 Financial matters
 Health
 Welfare decisions
Legal protection
 Section 5 of the act protects from legal liability those
providing
 Health and personal care
 For people without capacity provided they had
“reasonable belief” that the person lacked capacity
and their actions were in the persons best interest
 Documentation is key
 Does not protect those who have been negligent or
who have gone against the wishes of an attorney or
deputy acting within the scope of their power
Assessment of capacity
 Stage 1
 Person must have an impairment of or
disturbance in the functioning of the brain or mind
resulting in an inability to retain, use or weigh
information relevant to a decision.
 Stage 2
 Can only be assessed in relation to a particular
decision
 Must be reassessed for each decision
 People are entitled to make unwise decisions
Best interests
 When deciding on best interests consider
 Intervention likely to lead to best clinical outcome
 Plus
 Put yourself in the person position and ask what
they would have wanted if they still had capacity
 Views of relatives or others who know the person
well might be crucial to decision making
 The least restrictive option should be used
Use of restraint
 Restraint is use or threat of force to make
someone do something they are resisting
 Is also the restriction of a person’s freedom of
movement, whether they are resisting or not
 Restraint must reasonably be believed to be
necessary to prevent harm
 Must be proportional to the likelihood and
seriousness of the harm
Relationship to mental
health act
 Mental health act is only relevant when
treating a mental disorder
 Patients detained under the mental health
act who refuse physical health treatments
need to have their capacity assessed
 Incapacity should not be assumed in those
with mental illness
Relationship to mental
health act
 The mental capacity act cannot be used to
give care involving loss of liberty
 Treatments that are prohibited in advanced
decisions or treatments that are not
consented to by an attorney can still be given
under the mental health act if they are to
treat a mental disorder