Mental Capacity 23rd Sept

Matt O’Connor –Safeguarding Lead B&AtPCT

Mental Capacity

Autonomy and right to

self-determination

Self Advocacy

ProtectionPrevention of

neglect

Public and family expectation

It all hinges on capacity!

Respect decisions where person has capacityYou make best interest decision for people who lack capacity

Assessing Mental Capacity(‘Process’ or ‘Functional’ approach)

People have the right to accept or refuse care or treatment if they can•understand the information•retain the information•weigh up information to make a decision•express their choice.Lack of capacity must be as a result of Impairment of or disturbance in the Impairment of or disturbance in the functioning of the person’s mind or brainfunctioning of the person’s mind or brain

MCA (2005) MCA (2005) Statutory Statutory PrinciplesPrinciples SummarySummary• Everyone must be presumed as having Everyone must be presumed as having

capacity unless established otherwise. capacity unless established otherwise. • Right to have support to achieve capacity Right to have support to achieve capacity

and make your own decisionand make your own decision• Right to make what might be seen as Right to make what might be seen as

eccentric or unwise decisionseccentric or unwise decisions• Action can be taken in a person’s ‘Best Action can be taken in a person’s ‘Best

interests’ where they lack capacityinterests’ where they lack capacity• The action must be the least restrictive The action must be the least restrictive

intervention possibleintervention possiblehttp://www.dca.gov.uk/menincap/bill-http://www.dca.gov.uk/menincap/bill-

summary.htmsummary.htm

Advance decisions to refuse Advance decisions to refuse treatmenttreatment• Allows people to refuse specified medical treatment in advance. Allows people to refuse specified medical treatment in advance.

(If valid, has same legal standing as when person has capacity)(If valid, has same legal standing as when person has capacity)

• Previously called ‘living wills’ or ‘advance directives’Previously called ‘living wills’ or ‘advance directives’

• Must be made when a person still has capacity. Must be made when a person still has capacity.

• It must be clear about which treatment it applies to and when It must be clear about which treatment it applies to and when

and must be in writing and witnessed if it applies to life-and must be in writing and witnessed if it applies to life-

sustaining treatment.sustaining treatment.

• You cannot make an advanced statement to insist on treatmentYou cannot make an advanced statement to insist on treatment

• Advanced statementsAdvanced statements describe wishes. They should be used to describe wishes. They should be used to

inform best interest decisions.inform best interest decisions.

Lasting Powers of Attorney Lasting Powers of Attorney (LPA)(LPA)The Act enables people to appoint someone they The Act enables people to appoint someone they

know and trust to make decisions on their behalf know and trust to make decisions on their behalf for a time when they may lack capacity.for a time when they may lack capacity.

This is called the ‘Lasting Power of Attorney’This is called the ‘Lasting Power of Attorney’

There are two types of LPA There are two types of LPA – ‘‘Property and affairs’ Property and affairs’ – ‘‘Personal welfare’Personal welfare’

N.B Old Enduring Power of Attorney does not give any power to N.B Old Enduring Power of Attorney does not give any power to make healthcare / welfare decisions on behalf of someone elsemake healthcare / welfare decisions on behalf of someone else

Lasting Powers of Attorney Lasting Powers of Attorney cont.cont.

• A person can only make an LPA when they have A person can only make an LPA when they have capacitycapacity

• An LPA must be registered with the Public An LPA must be registered with the Public GuardianGuardian

• When the person looses capacity, their proxy When the person looses capacity, their proxy assumes the power to accept or refuse assumes the power to accept or refuse treatment on behalf of the person.treatment on behalf of the person.

• The chosen attorney must act in the person’s The chosen attorney must act in the person’s best interests.best interests.

• IMCA’s are appointed where people who have no IMCA’s are appointed where people who have no friends or family with whom it is practicable to friends or family with whom it is practicable to consult consult

• IMCAs do not have powers to make decisions but IMCAs do not have powers to make decisions but do advocate for and support the person in the do advocate for and support the person in the decision making process.decision making process.

• An IMCA An IMCA mustmust be consulted for decisions about. be consulted for decisions about.serious medical treatment serious medical treatment hospital stay for 28 days or morehospital stay for 28 days or moreaccommodation change for 8 weeks or moreaccommodation change for 8 weeks or more

The Independent Mental The Independent Mental Capacity Advocate (IMCA)Capacity Advocate (IMCA)

IMCA referralIMCA referral

Contact details for the IMCA service are:Contact details for the IMCA service are:

• Learning disability: CHOICE Advocacy Learning disability: CHOICE Advocacy telephone 01274 731522telephone 01274 731522

• Mental health: BAMHAG Mental health: BAMHAG

telephone 01274 770118telephone 01274 770118

Final pointsFinal points

•Use the MCA Code of Use the MCA Code of Practice!Practice!

•Use the MCA Code of Use the MCA Code of Practice!!Practice!!

•Use the MCA Code of Use the MCA Code of Practice!!!Practice!!!