Transcript Slide 1

Mental Capacity Act 2005: a
practice-based course
Supporting older people in care homes
and the community as they would like
Session Two
Assessing capacity under the
Mental Capacity Act 2005
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5 key principles
1.
A person must be assumed to have capacity unless it is established that they
lack capacity.
2.
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.
3.
A person is not to be treated as unable to make a decision merely because he
makes an unwise decision.
4.
An act done, or decision made, under this Act for or on behalf of a person must
be done, or made, in their best interests.
5.
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 which
is less restrictive of the person’s rights and freedom of action.
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Assessing capacity
Factors to be considered in assessing for capacity
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General intellectual ability
Memory
Attention and concentration
Reasoning
Information processing
Verbal comprehension and expression
Cultural influences
Social context
Ability to communicate.
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The two stage test of capacity
1. Is there an impairment of, or disturbance in, the
functioning of the person’s mind or brain?
2. If so, is the impairment or disturbance sufficient
that the person lacks capacity to make that
particular decision?
This 2-stage test must be used and your records should show it has
been used
Taken from Mental Capacity Act Code of Practice, section 4.11 – 4.13
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Assessing capacity
Remember, any assessment of a person’s capacity must
consider the following factors:
1. Their ability to understand the information
2. Their ability to retain the information related to the
decision to be made
3. Their ability to use or assess the information while
considering the decision
4. Their ability to communicate the decision – by any means.
If they are unable to do any of the above, they are unable to
make the decision for themselves.
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Assessing capacity - Viktor
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Viktor is a 79-year-old Ukrainian man who has severe chronic obstructive pulmonary
disease which makes it difficult for him to breathe. He is also a little confused at times.
Viktor lives in a care home.
Every winter the local GP visits the home to give the residents flu immunisation.
When the GP tells Viktor that he has come to give him his flu jab, Victor refuses to have
the injection.
The GP explains that it is particularly important for him to have the flu jab because of
his breathing problems but Viktor is adamant that he does not want the vaccine.
Scenario taken from Department of Health (2007) ‘Mental Capacity Act 2005: Residential Training Set’.
What should Viktor’s key worker do?
What are your initial considerations?
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Assessing capacity - Albert
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Albert is a 82 year old man who lives in his own home. He has visits from care
workers 3 times a day to help him with his personal care and administer his
medication from a dosette box. He has been diagnosed as having dementia.
He also has epilepsy and this has been controlled on tablets. Last week he refused
to take his tablets on two occasions and this was reported to the GP. He then had
an epileptic fit which was witnessed by one of the care workers, but he recovered
quickly.
The GP visited and has advised the care worker that his anti-epileptic tablets
should be covertly administered.
As the manager of the domiciliary care
agency, what are your initial considerations?
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Additional information about Viktor
• He does not understand or speak English well.
• He has a daughter, Mrs Lilia Crosby, who visits daily and who
speaks his native language.
• She told staff in the home that her father had flu 2 winters
ago and was very ill.
• She also told staff that her father had the flu jab last winter
and did not have flu.
Complete the SHARP ‘Making Decisions under the MCA’
document, to demonstrate the decision-making process,
adding any other details and information to support your
decision
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Additional information about Albert
• Albert has a daughter, Mrs Links, who lives nearby.
• She says that her father has never liked taking tablets and has had
epileptic fits in the past when he stopped taking his tablets.
• She says his memory is such that he does not remember how
seriously ill he has been when he has had fits.
Complete the SHARP ‘Making Decisions under the MCA’
document, to demonstrate the decision-making process, adding
any other details and information to support your decision
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Discussion - Viktor
1. Who is the decision maker in this case?
2. What strategies could you use to help Viktor make his decision?
3. Did you assess that Viktor was unable to
a) understand the information and/or
b) retain the information, and/or
c) use and assess the information, and/or
d) communicate his decision?
4. If you answered yes to one or more of the above, then he is unable to make the
decision himself?
5. Did you decide Viktor should have the immunisation or not?
6. What could be the possible consequences of giving the injection, without
following the MCA requirements?
7. What could be the possible consequences of not giving the injection, without
following the MCA requirements?
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Discussion - Albert
1. Who is the decision maker in this case?
2. What strategies could you use to help Albert make his decision about taking his
tablets?
3. Did you assess that Albert was unable to
a) understand the information and/or
b) retain the information, and/or
c) use and assess the information, and/or
d) communicate his decision?
4. If you answered yes to one or more of the above, then he is unable to make the
decision himself?
5. What did you decide about how Albert’s medication should be managed?
6. If covert administration is to be used who else must you consult with for
authorisation?
7. Is there another less restrictive option, which may be more appropriate?
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Planning care and support
– determining “best interests”
The statutory (legal) check list:
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Avoid making assumptions about someone’s best interests merely on the basis of
the person’s age, appearance, condition or behaviour.
Consider a person’s own wishes, feelings, beliefs and values and any written
statements made by the person when they had capacity.
Take account of the views of family and informal carers.
Can the decision be put off until the person regains capacity?
Involve the person in the decision-making process.
Demonstrate that you have carefully assessed any conflicting evidence or views.
Provide clear, objective reasons as to why you are acting in the person’s best
interests.
Take account of the views of any Independent Mental Capacity Advocate.
Take the less restrictive alternative or intervention.
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2 scenarios to consider
Esther lives in a care home.
• She has severe dementia.
• Esther has asked the staff to buy
a Christmas present for her
daughter
• However, she cannot remember
what her daughter likes.
Scenario taken from Department of Health (2007)
‘Mental Capacity Act 2005: Residential Training Set’.
You are her Key Worker
Discuss in your groups what you
should do?
Maria lives in her own home
• She has severe dementia.
• Care workers visit her once a day
to help her cook her lunch and
tea.
• The care worker notices that in
the fridge there is a lot of food
with mould growing on it.
You are her Key Worker
Discuss in your groups what you
should do?
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Esther and Maria
Esther
Maria
• The staff use Esther’s personal
allowance to buy the present
for her daughter, as they did in
the past when Esther was able
to ask them to buy her
daughter her favourite soap.
• They keep the receipt, give it
to the home administrator and
write down what they have
done in Esther’s care plan.
• Assess capacity for deciding
about the edibility of the food.
• If Maria lacks capacity, act in
her ‘best interests’.
• What action should the care
worker take?
• Record in care plan.
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Safeguards for staff
There are safeguards in the MCA for staff making decisions on behalf of
people who lack capacity.
Staff have statutory or legal protection for best interests decisions
providing that they can demonstrate they:
• have taken reasonable steps to assess capacity to make a decision
• reasonably believe that the person lacks capacity to make that
decision
• reasonably believe that the decision is in the person’s best interests
However, staff will not be protected if they act negligently
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Esther and Maria
• For Esther, as staff have sufficient information to explain why and
what they did, staff will be protected if anyone asks why they
bought such an expensive soap.
• For Maria, if staff have sufficient information to demonstrate that
they acted in best interests, to prevent Maria from eating
potentially harmful food, they will be protected.
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Summary
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5 key principles
2 stage test for capacity
4 stage assessment or capacity
5 stage ‘best interests’ criteria
• ‘The 5:2:4:5 aide memoire’
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