Transcript Slide 1

The Mental Capacity Act 2005
Implications for Front Line Staff
Richard Williams
Professor of Mental Health Strategy, University of Glamorgan
Professor of Child and Adolescent Mental Health, University of Central Lancashire
Scientific Adviser to the Emergency Preparedness Division, Department of Health
My agenda for today
1.
The Mental Capacity Act 2005 and its Code of
Practice
2.
Mental capacity
3.
Assessing capacity
4.
What to do in emergencies
5.
Best interests
6.
Protection of carers
7.
Other instruments, offices and relationships
8.
Concluding comments
The Mental Capacity Act 2005
and its Code of Practice
The Mental Capacity Act 2005
 Covers a wide range of decisions or
actions taken on behalf of people who
MAY lack capacity to make decisions fore
themselves
 There are certain decisions that can
NEVER be made on behalf of a person
who lacks capacity and some are related
to health and healthcare
Statutory principles
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A person must be assumed to have capacity unless it is
established that they lack capacity
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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
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A person is not to be treated as unable to make a decision
merely because he makes an unwise decision
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An act done, or decision made, under this Act for or oin behalf
of a person who lacks capacity must be done, or made, in his
best interests
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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 that is less restrictive of the
person’s rights and freedom of action
Mental Capacity
Mental capacity
 Mental capacity is the ability to make a decision
 Lack of capacity
 ‘For the purposes of this Act, a person lacks capacity in
relation to a matter if at the material time he is unable to
make a decision for himself in relation to the matter
because of an impairment of, or a disturbance in the
functioning of, the mind or brain’
 This means that a person lacks capacity if:
 They have an impairment or disturbance (for example, a disability,
condition or trauma) that affects the way their mind or brain works,
and
 The impairment or disturbance means that they are unable to make a
specific decision at the time it needs to be made
 May be:
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Permanent
Partial
Temporary
Change over time
Assessing Capacity
Assessing capacity
 Stage 1: Does the person have an
impairment of, or a disturbance in the
functioning of, their mind or brain?
 Stage 2: Does the impairment or
disturbance mean that the person is
unable to make a specific decision when
they need to?
Stage 1: Does the person have
an impairment of, or a
disturbance in the functioning
of, their mind or brain?
 Examples of conditions
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Conditions associated with mental illness
Dementia
Significant learning disabilities
Long-term effects of brain damage
Physical or medical conditions that cause confusion,
drowsiness or loss of consciousness
 Delirium
 Concussion following a head injury
 The symptoms of alcohol or drug use
Stage 2: Does the impairment
or disturbance mean that the
person is unable to make a
specific decision when they
need to?
 ‘A person is unable to make a decision if they
cannot:
 Understand the relevant information about the
decision to be made
 Retain that information in their mind
 Use or weigh that information as part of the decisionmaking process, or
 Communicate their decision (by talking, using sign
language or any other means)’
Understanding the information
 What information is relevant
 The nature of the decision
 The reason why the information is needed
 The likely effects of deciding one way or another, or making
no decision at all
 Advice
 Take time to enable the person to take in the information
 Try to give the most appropriate amount of information
(avoid confusion and under informing
 Provide info on risks and benefits
 Explain effects of the decision on themselves and on close
persons and carers
 If there is a choice present the info in a balanced way
 Consider if the person requires advice from another source
What To Do in Emergencies
Emergencies
 ‘Clearly, in emergency situations (for example, where a
person collapses with a heart attack or for some
unknown reason and is brought unconscious into a
hospital), urgent decisions will have to be made and
immediate action taken in the person’s best interests’
 ‘In these situations, it may not be practical or appropriate
to delay the treatment while trying to help the person to
make their own decisions, or to consult with any known
attorneys or deputies’
 ‘However, even in emergency situations, healthcare staff
should try to communicate with the person and keep
them informed of what is happening’
Best Interests
Best interests
 Not defined in the law … but …
 Provides a checklist of common factors that must be
considered when coming to a view as to a person’s best
interests
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Encourage participation
Identify all relevant circumstances
Find out the person’s views
Avoid discrimination
Assess whether the person might regain capacity
Make no assumptions about quality of life or be motivated
by a desire to bring about death in the case of lifesustaining treatment
 Consult others
 Avoid restricting the person’s rights
 Weigh up all of the foregoing factors
Protection of Carers
Protections for providers of care
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Section 5(1) of the Act provides possible protection for actions
carried out in connection with care and treatment carried out
on behalf of someone who is believed to lack capacity for the
action so long as it is in that person’s best interests and that
includes diagnostic or other procedures is included in treatment
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Steps for carers to bear in mind
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Acting in connection with the care or treatment …
Checking whether the person has capacity to consent
Acting in the person’s best interests
Understanding possible limitations on protection from liability
Paying for necessary goods and services
Other Instruments, Offices and
Relationships
Other instruments, offices &
relationships
 Lasting Power of Attorney
 Advance decisions to refuse treatment
 Role of Court of Protection and court-appointed
deputies
 Independent Mental Capacity Advocate service
 Research involving persons who lack capacity
 Children and young people
 Relationship of MCA with Mental Health Acts
1983 and 2007
Concluding Comments