Transcript No Slide Title

Palliative Care Conference
4 July 2004
 Briefing on Mental Capacity Act
 Advance Decisions
 Deprivation of Liberty
 The Lessons Learned
John Gibbons MCA-Operational lead
Telephone 01422 363561
[email protected]
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MCA Briefing
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The IMCA provisions came into force on 1 April
2007.
The remainder of the Act came into force on 1
October 2007.
Underpinned by a Code of Practice.
Specific staff have a statutory duty to have
regard to the code (s42)
Family, friends and unpaid carers are also
expected to follow guidance contained in the
code.
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Code of Practice
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People who are paid for acts in relation to people
who lack capacity.
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Should be able to explain how they had regard to
the code when making decisions.
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If you don’t follow the code you must have good
reasons for why you have departed.
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Day to day decisions do not require recording
however its good practice to record the steps
taken when caring for a person.
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Principles of the Act
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Assume a person has capacity unless proved
otherwise.
Do not treat people as incapable unless you have
tried all practical steps to help them.
Do not treat someone as incapable of making a
decision because their decision may seem
unwise.
Any act or decision on behalf of a person who
lacks capacity must be in their best interests.
Least restrictive option.
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People who lack capacity
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When does a person lack capacity (s2)
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Inability to make a decision (s3)
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Best interests checklist (s4)
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Acts in connection with care or treatment (s5)
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Limitations to s5 re restraint.
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A new criminal offence of ill treatment or neglect.
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Decision specific.
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The concept of fluctuating capacity.
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Lasting Powers of Attorney
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Lasting Power of Attorney (LPA)
Enables you appoint someone you know and
trust to make decisions on your behalf.
Two types of LPA
Property and affairs (replaces EPA’s)
Personal welfare
Must be made when a person has capacity.
Must be registered with the Public Guardian.
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Court Appointed Deputies
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Could be used when a series of decisions are
needed and a single court order is insufficient.
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Two types of Deputy.
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Financial
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Welfare.
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Or to make both financial and welfare decisions.
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Court Receivers will be replaced by deputies
appointed by the Court
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Public Guardian
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The Public Guardian and his/her staff are the
registering authority for LPA’s and deputies.
 They supervise deputies appointed by the Court
and provide information to help the Court make
decisions.
 They will also work with other agencies to
respond to any concerns about the way in which
an attorney or deputy is operating.
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Guardians Protective Role
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Establishing and maintaining a register of
Lasting Powers of Attorney (LPA’s)
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Establishing and maintaining a register of orders
appointing deputies;
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Supervising deputies appointed by the court, in
co-operation with
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other relevant authorities (such as social
services if the person who lacks capacity is
receiving social care).
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Guardians Protective Role
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Directing Court of Protection Visitors to visit
people lacking capacity and those who have
formal powers to act on their behalf.
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Receiving reports from attorneys acting under
LPA’s and from deputies.
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Providing reports to the court as requested and
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Dealing with representations (including
complaints) about the way in which attorneys or
deputies exercise their powers.
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Court of Protection
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Will have jurisdiction relating to the whole Act.
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Will be the final arbiter for capacity matters.
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It has its own Court Rules and Judges.
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Public consultation has been held on Court
Rules.
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Independent Mental
Capacity Advocate (IMCA)
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Duty to appoint an IMCA for people who are
“unbefriended” in specific situations.
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Provision of serious medical treatment by an
NHS body (s 37)
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Provision of accommodation by an NHS body
(s38)
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Provision of accommodation by a local authority
(s39)
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IMCA (continued)
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Does not apply if action taken under Mental
Health Act.
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Right to interview the person.
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Access to records and the right to take copies.
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Views must be taken into account.
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Right to complain and ultimately to refer the
matter to the Court of Protection.
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Serious Medical Treatment
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Is defined as treatment which involves giving
new treatment ,stopping treatment that has
already started or withholding treatment that
could be offered in circumstances where:
 If a single treatment is proposed there is a fine
balance between likely benefits and the burdens
to the patient and the risks involved.
 A decision between a choice of treatments is
finely balanced.
 What is proposed is likely to have serious
consequences for the patient.
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Serious Consequences
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‘Serious consequences’ are those which could have a
serious impact on the patient, either from the effects of the
treatment itself or its wider implications. This may include
treatments which:
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cause serious and prolonged pain, distress or side effects
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• have potentially major consequences for the patient (for
example,
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stopping life-sustaining treatment or having major surgery
such as heart surgery), or
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• have a serious impact on the patient’s future life choices
(for example, interventions for ovarian cancer).
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IMCA Expansion of Role
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LA and NHS have powers to instruct an IMCA.
Where protective measures are being put in
place in relation to vulnerable adult from abuse
and that person lacks capacity.
They do not need to be unbefriended.
They may also be instructed in accommodation
reviews for people who lack capacity there is no
one who is appropriate to consult.
In both cases there is a need to agree a policy
statement outlining the eligibility criteria.
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Advance Decisions
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The right of a person over 18 to refuse medical
treatment at a point in the future when they lack
capacity.
 Can be an oral statement however people are
advised to discuss with health professional and
have decision recorded in their notes.
 A decision to refuse life-sustaining treatment
must be in writing (signed and witnessed).
 No one has the right to demand specific
treatment.
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Deprivation of Liberty
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Introduced into Mental Capacity Act 2005 (MCA)
through the Mental Health Act 2007 (1 April 2009)
 Will prevent arbitrary decisions that deprive
vulnerable people of their liberty
 Safeguards are to protect service users and if
they do need to be deprived of their liberty give
them representatives, rights of appeal and for the
“deprivation” to be reviewed and monitored.
 Safeguards cover people in hospital and care
homes registered under the Care Standards Act
2000
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Deprivation of Liberty.
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The deprivation of liberty safeguards are in
addition to and do not replace other safeguards
in the MCA
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Essential that hospital and care home managers
and assessors understand the distinction
between deprivation and restriction of liberty
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Every effort should be made to avoid instituting
deprivation of liberty care regimes wherever
possible.
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LAC (DH) 2008 4 The
lessons so far.
 The feedback received to date is that a
first start has been made in the
implementation of the MCA but that the
Act still requires a large cultural shift in
working with people who may lack
capacity which has hardly begun.
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LAC (DH) (2008) 4
 Statistical information suggests that
nationally about half the number of
people expected have received the IMCA
safeguard. Half have not. Each eligible
person who does not receive the
safeguard means a breach of the Act.
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LAC (DH) (2008) 4
 Assessments of capacity not being
recorded.
 The process and how Best Interest
Decisions arrived at not being recorded.
 The factors in reaching a decision i.e.
show your working out.
 L.A. responsibility to continue to offer
training across the local economy
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