Louise Wilson, Solicitor

Royal Assent – April 2005Came into force April & October

2007Many common law principles now

enshrined in statuteCourt of ProtectionRegulations Code of Practice

CapacityTreatment/welfare decisions IMCASLPAs and Court of ProtectionAdvance Decisions to Refuse

TreatmentResearch Offences/ProtectionChildren & Young Persons Deprivation of Liberty Safeguards

(DoLS)

MCA does not apply generally to under 16s

However, the offence of ill-treatment and neglect can apply to under 16s

Principles apply to 16 & 17 year oldsParental consent/best interests – 16

& 17 year oldsGillick competence

1. A person must be assumed to have capacity unless it is established that he lacks capacity;

2. A person is not to be treated as unable to make a decision unless all practicable steps to help him 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 who lacks capacity must be done, or made, in his 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 that is less restrictive of the person’s rights and freedom of action.

Who can/should assess capacity?Need for formal assessment –

Legal mattersGrave decisions Dispute Risk of harm

Highest level of functioning Balance of probabilities Confidentiality

Stage 1 – Diagnostic Is there an impairment/disturbance

in functioning of the mind/brain?

Stage 2 – Functional Is the impairment/disturbance

sufficient to render person incapable of making that particular decision?

Note – capacity is time and issue specific Unable to make a decision if:

Cannot understand the information relevant to the decision; or

Cannot retain that information; or Cannot use or weigh that information as part

of the process of making the decision; or Cannot communicate his decision (whether by

talking, using sign language or any other means)

Principle of equal consideration and non-discrimination best interests not to be determined merely by

reference to age, appearance or condition/unjustified assumptions

All relevant circumstances of which decision maker aware & it would be

reasonable to regard as relevant

Regaining capacity if this is likely, could decision be delayed?

Permitting and encouraging participation views still relevant where a person lacks capacity

Life sustaining treatment must be no motivation to bring about persons death starting point is best interests for life to continue

Persons wishes, feelings, beliefs and values past and present (e.g. any relevant written

statement) beliefs and values likely to influence that person if

they had capacity

View of others statutory right of carers, family & others to be

consulted Attorney/Deputy Only if “practicable and appropriate”

Duty on NHS body or LA to instruct an IMCA if serious medical treatment or provision of accommodation and no person appropriate to consult in determining best interests (other than engaged in providing care or treatment in a professional capacity or for remuneration)

Not required if Attorney or Deputy already involved

Does not apply to treatment under MHA 1983

Serious medical treatment – involves providing, withdrawing or withholding treatment in circumstances where:

a) Single treatment – fine balance between benefits, burdens and risks to patient;

b) Choice of treatments – finely balanced; or

c) What is proposed is likely to involve serious consequences for the patient

Can still provide treatment in an emergency

Must take into account any information given or submissions made by an IMCA but decision rests with health professional (IMCA will usually prepare a report for consideration)

Safeguarding issues

May interview person in private May examine and take copies of a health

record, social services record or care home records, if relevant to their investigation

May obtain further medical opinion Consult with:

Professionals providing care/treatment Other persons in a position to comment

Provide support so person may participate in decision, obtain relevant information, ascertain what likely to be wishes/feelings of person and alternative courses of action

The Court of Protection has wide ranging powers:

To make declarationsMake decisions and appoint Deputies In relation to LPAsTo remove Deputies or Attorneys

who act improperly

Capacity

Dispute between professionals

Dispute between family members

Lawful actions

Should always apply to Court: Withholding or withdrawal of artificial

nutrition and hydration for PVS patients Organ or bone marrow donation

involving a person lacking capacity Non therapeutic sterilisation Some termination of pregnancy cases Other cases where there is doubt or

dispute about best interests

Life-sustaining treatment:

Must be in writing Must be signed by person (or in their

presence if they are unable to do so themselves)

Must be witnessed Must include a statement that it is to

apply even if life is at risk

Must specify the treatment that is to be refused (general desire stated does not constitute an advance decision)

Must set circumstances in which refusal will apply

Will only apply once the person lacks capacity Where possible oral decisions should be recorded

in case notes Need to consider if meet validity and applicability

requirements Can treat in an urgent situation if validity unclear

and matter is being referred to the Court

Ensure MCA principles are followed – protection for the patient and for professionals

Do not make presumptions of best interests Documentation is crucial Cannot be forced to provide medical

treatment which is not felt to be in a patient’s best interests. Ensure follow GMC guidance

Seek legal advice if in doubt about a decision

Court of Protection – Archway Tower – 0300 456 4600

Royal Courts of Justice – 0207 947 6000 Office Public Guardian – 0300 456 0300 Emergency out of hours applications –

0207 947 6000 – explain nature of the case to security staff who will contact duty Judge