Transcript Mental Capacity Act – Principles and Practice

Mental Capacity Act –
Principles and
Practice
Steve Blades
GP Lead for Adult
Safeguarding
Aims




Understand principles of Mental Capacity Act
Understand how to make a best interests
decision
Recognise role of Deciding Right documents
Understand role of the Independent Mental
Capacity Advocate (IMCA)
Mental Capacity Act Principles

1. A Presumption of Capacity

Every Adult has the right to make his or her own decisions and must be assumed to
have capacity to do so unless it is proved otherwise

2. Individuals being supported to make their own decisions

People must be given all practicable help before anyone treats them as not being
able to make their own decisions

3. Unwise Decisions

Just because a person makes what might seem as an unwise decision, they should
not be treated as lacking in capacity to make that decision

4. Best Interests

An act done or decision made under the Act for or on behalf of a person who lacks
capacity, must be done in their best interests

5. Least Restrictive Option

Anything done for, or on behalf of a person who lacks capacity, should be the least
restrictive of the basic rights of freedoms
Decision Tree
Person Makes
Decision
Has Capacity
Pre-Assessment - do everything to help the person to
make a decision
Assess Capacity - 2 Stage Test.
No
Impairment or disturbance in mind or brain?
Unable to make decision at time needs to be made? Can they:
-Understand the information relevant to the decision
-Retain that information
-Use or weigh that information as part of the process of
making the decision
-Communicate their decision
Is there a valid & applicable LPA, EPA,
Advanced Decision in place
No
Best Interests Assessment
All
Yes
Yes
They make the
decision
Decision Maker
makes decision
Pre-assessment of capacity




Where there is reason to believe a person lacks
capacity you will need to consider;
has everything been done to help the person to
make a decision?
does this decision need to be made without
delay?
If still capacity questionable, move on to next
phase of assessing
Assessing Capacity

A person lacks capacity in relation to a
matter if at the material time they are
unable to make a decision for themselves
in relation to the matter because of an
impairment of, or a disturbance in the
functioning of, the mind or brain
Two stage assessment of capacity

Does the person have an impairment of the mind or
brain, or is there some sort of disturbance affecting the
way their mind works? (It does not matter whether the
impairment or disturbance is permanent or temporary)

If yes does that impairment or disturbance mean that the
person is unable to make the decision in question at the
time it needs to be made?

Any question whether a person lacks capacity must
be decided on the balance of probabilities
Assessing capacity (MCA1 form)

A person is unable to make a decision for themselves if they are
unable to:

Understand the information relevant to the decision

Retain that information

Use or weigh that information as part of the process of making the
decision

Communicate their decision (whether by talking, using sign
language or any other means).
Powers of Attorney
Enduring Power of Attorney
 Lasting power of attorney
- Health and welfare
- Property and affairs

Office of Pubic Guardian
 Court of Protection

Decision Tree
Person Makes
Decision
Has Capacity
Pre-Assessment - do everything to help the person to
make a decision
Assess Capacity - 2 Stage Test.
No
Impairment or disturbance in mind or brain?
Unable to make decision at time needs to be made? Can they:
-Understand the information relevant to the decision
-Retain that information
-Use or weigh that information as part of the process of
making the decision
-Communicate their decision
Is there a valid & applicable LPA, EPA,
Advanced Decision in place
No
Best Interests Assessment
All
Yes
Yes
They make the
decision
Decision Maker
makes decision
Deciding Right Guidance and
Forms
Principles of care planning
 Advance care planning (ACP)
 DNACPR
 Advance decision to refuse treatment
(ADRT)
 Emergency health care plans (EHCPs)

Outcomes of Advance Care
Planning
Advance statement of wishes and feelings,
beliefs and values
 Advance decision to refuse treatment
 Lasting power of attorney

Advance decisions to refuse
treatment




A decision to refuse specific treatment and is
binding
Can only be made by an individual with capacity
but becomes active only when they have lost
capacity
Staff must be able to recognise when an
advanced decision is valid and applicable
Must be valid, written, signed and witnessed if
life sustaining treatment is being refused
Events making an ADRT invalid

the person withdrew the decision while they still had
capacity to do so

after making the advance decision, the person made a
Lasting Power of Attorney (LPA) giving an attorney
authority to make treatment decisions that are the same
as those covered by the advance decision

the person has done something that clearly goes
against the advance decision which suggests that they
have changed their mind
ADRT is not applicable if

the proposed treatment is not the treatment specified in
the advance decision

the circumstances are different from those that may have
been set out in the advance decision, or

there are reasonable grounds for believing that there
have been changes in circumstance, which would have
affected the decision if the person had known about
them at the time they made the advance decision
Best Interests Decision

The person making the decision is know as the ‘Decision
Maker’ they will normally be;
- the carer responsible for the day to day care
or
- a professional such as a doctor, nurse, social worker
where decisions about treatment, care arrangements or
accommodation have to be made

There can also be joint decision makers

The person delivering the care or treatment makes the
decision about whether to deliver that care or treatment
Best Interests Decision Making







Don’t make assumptions about a person’s best interests
Is the person likely to regain capacity, if so, can the
decision wait
All relevant circumstances must be considered
Involve the person as fully as possible
Past and present wishes, feelings, beliefs and values
e.g. religious, cultural and moral considered and any
advance statements / decisions
Must consult other people if appropriate and practicable
and take account of views
Where the determination relates to life sustaining
treatment….must not be motivated by desire to bring
about death
Best Interests Record Keeping



Clear record keeping is crucial
Day-to-day - record and review, but elaborate records not required
on every occasion about every decision/act of care
Consider using MCA 1 and 2 if capacity is in doubt and for a course
of care / treatment and/or life changing decisions/events are
necessary and especially where;

There is conflict with family
 There are adult safeguarding or public protection issues
 Accommodation change – long term care, hospital
admission
 Any case conference convened around a serious issue
 Where physical interventions are proposed for a patient
not detained under MH Act or where there maybe
restriction of liberty issues e.g. concealed medication
Care and Treatment




MCA provides legal protection from liability
(Section 5) for carrying out actions in connection
with care and treatment of people who lack
capacity provided;
You have observed the principles of MCA
You have carried out assessment of capacity
and reasonably believe the person lacks
capacity in relation to the matter in question
You reasonably believe action is in the best
interests of the person
Relationship between Mental
Capacity Act and Mental Health Act
Does the person have a mental health condition and
predominantly need treatment for a mental health disorder?
Yes
Does the patient have capacity?
Yes
Use MHA
No
Consider MCA
but MHA
needed for
detention
No
Does the patient have capacity?
Yes
Patient
needs to
make
decisions
No
Use MCA.
DOLS may
apply
Deprivation of Liberty Safeguards





Cover people aged 18 or over in hospital or care
homes
DOL safeguards are to prevent arbitrary
decisions that deprive vulnerable people of their
liberty
Do not apply if detained under Mental Health Act
Beyond restraint or restriction of liberty –
difference of degree of intensity not of nature or
substance
LA are supervisory bodies
Restraint







Section 6 of the MCA defines restraint as
‘the use or threat of force where an incapacitated
person resists or any restriction of liberty of
movement whether or not the person resists’
Restraint is only permitted if
the person using it reasonably believes it is necessary to
prevent harm to the incapacitated person
and
the restraint used is proportionate to the likelihood and
seriousness of the harm
Section 6 makes it clear that it does not provide any
protection for an act depriving a person of their liberty
Independent Mental Capacity
Advocacy (IMCA)






‘An IMCA is someone appointed to support a person who
lacks capacity but has no one to speak for them in a
dispute’
You must refer to IMCA if service user
lacks capacity and
has no one ‘appropriate or practicable’ to speak for them
needs decisions regarding ‘serious medical treatment’
(excluding Mental Health Act treatment) or a change in a
person’s accommodation (28 days in hospital, 8 weeks
in care home)
Must consider referring if safeguarding issues
Serious Medical Treatment
Involves
-
Giving new treatment, stopping treatment or withholding
treatment that could be offered where
There is a fine balance between likely benefits and
burdens
A decision between treatment options is finely balanced
Or proposed treatment is likely to have serious
consequences which include
• Serious and prolonged pain, distress or side effects
• Potentially major consequences e.g. stopping life
sustaining treatment
• Serious impact on person’s future life choices e.g.
ability to have children
Role of IMCA
Respond within 2 working days
 Meet with the person and speak to those
who know them to find out as much as
possible about the persons wishes, values
and beliefs
 Talk to professionals involved
 Attend relevant meetings

Role of IMCA




Submit a written report to the decision maker
Recommend any courses of action that may
help to support the decision making process
Enable the decision maker to make decisions in
the best interests of the person
Challenge the decision if it does not seem
appropriate
IMCA referrals
Use referral form
 Clear decision to be made
 Recent assessment of decision specific
capacity
 Phone and discuss

IMCA contact details
Newcastle, North Tyneside and
Gateshead
Your Voice Counts 4786472
www.yvc.org.uk
 Northumberland
Spiral Skills 0191 2715353
www.spiralskills.org

Decisions that cannot be made for
someone lacking capacity







Consenting to marriage or a civil partnership
Consenting to have sexual relations
Consenting to a decree of divorce on the basis of two
years’ separation
Consenting to the dissolution of a civil partnership
Consenting to a child being placed for adoption or the
making of an adoption order
Discharging parental responsibility for a child in matters
not relating to the child’s property, or
Giving consent under the Human Fertilisation and
Embryology Act 1990.
Contact Details
Steve Blades
GP lead for safeguarding adults
[email protected]

Deciding Right
www.theclinicalnetwork.org
