Mental Capacity Act Principles and PracticeSteve BladesGP Lead for Adult Safeguarding

AimsUnderstand principles of Mental Capacity ActUnderstand how to make a best interests decisionRecognise role of Deciding Right documentsUnderstand role of the Independent Mental Capacity Advocate (IMCA)

Mental Capacity Act Principles1. A Presumption of CapacityEvery 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 decisionsPeople must be given all practicable help before anyone treats them as not being able to make their own decisions

3. Unwise DecisionsJust 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 OptionAnything done for, or on behalf of a person who lacks capacity, should be the least restrictive of the basic rights of freedoms

Decision TreeHas CapacityPerson Makes DecisionPre-Assessment - do everything to help the person to make a decisionAssess Capacity - 2 Stage Test. Impairment or disturbance in mind or brain?Is there a valid & applicable LPA, EPA, Advanced Decision in placeNoYesUnable 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 decisionAll YesBest Interests Assessment They make the decisionNoDecision Maker makes decision

Pre-assessment of capacityWhere 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 CapacityA 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 capacityDoes 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 AttorneyEnduring Power of AttorneyLasting power of attorney - Health and welfare- Property and affairs

Office of Pubic GuardianCourt of Protection

Decision TreeHas CapacityPerson Makes DecisionPre-Assessment - do everything to help the person to make a decisionAssess Capacity - 2 Stage Test. Impairment or disturbance in mind or brain?Is there a valid & applicable LPA, EPA, Advanced Decision in placeNoYesUnable 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 decisionAll YesBest Interests Assessment They make the decisionNoDecision Maker makes decision

Deciding Right Guidance and FormsPrinciples of care planningAdvance care planning (ACP)DNACPRAdvance decision to refuse treatment (ADRT)Emergency health care plans (EHCPs)

Outcomes of Advance Care PlanningAdvance statement of wishes and feelings, beliefs and valuesAdvance decision to refuse treatmentLasting power of attorney

Advance decisions to refuse treatmentA decision to refuse specific treatment and is bindingCan only be made by an individual with capacity but becomes active only when they have lost capacityStaff must be able to recognise when an advanced decision is valid and applicableMust be valid, written, signed and witnessed if life sustaining treatment is being refused

Events making an ADRT invalidthe 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 ifthe 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 DecisionThe person making the decision is know as the Decision Maker they will normally be;- the carer responsible for the day to day careor - 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 Dont make assumptions about a persons best interestsIs the person likely to regain capacity, if so, can the decision waitAll relevant circumstances must be consideredInvolve the person as fully as possiblePast and present wishes, feelings, beliefs and values e.g. religious, cultural and moral considered and any advance statements / decisionsMust consult other people if appropriate and practicable and take account of viewsWhere the determination relates to life sustaining treatment.must not be motivated by desire to bring about death

Best Interests Record KeepingClear record keeping is crucialDay-to-day - record and review, but elaborate records not required on every occasion about every decision/act of careConsider 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 familyThere are adult safeguarding or public protection issuesAccommodation change long term care, hospital admissionAny case conference convened around a serious issueWhere 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 MCAYou have carried out assessment of capacity and reasonably believe the person lacks capacity in relation to the matter in questionYou reasonably believe action is in the best interests of the person

Relationship between Mental Capacity Act and Mental Health ActDoes the person have a mental health condition and predominantly need treatment for a mental health disorder?Does the patient have capacity?Does the patient have capacity?Use MHAConsider MCA but MHA needed for detentionPatient needs to make decisionsUse MCA. DOLS may applyYesNoYesNoYesNo

Deprivation of Liberty SafeguardsCover people aged 18 or over in hospital or care homesDOL safeguards are to prevent arbitrary decisions that deprive vulnerable people of their libertyDo not apply if detained under Mental Health ActBeyond restraint or restriction of liberty difference of degree of intensity not of nature or substanceLA are supervisory bodies

RestraintSection 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 andthe 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 disputeYou must refer to IMCA if service userlacks capacity and has no one appropriate or practicable to speak for themneeds decisions regarding serious medical treatment (excluding Mental Health Act treatment) or a change in a persons accommodation (28 days in hospital, 8 weeks in care home)Must consider referring if safeguarding issues

Serious Medical TreatmentInvolves

Giving new treatment, stopping treatment or withholding treatment that could be offered whereThere is a fine balance between likely benefits and burdensA decision between treatment options is finely balancedOr proposed treatment is likely to have serious consequences which includeSerious and prolonged pain, distress or side effectsPotentially major consequences e.g. stopping life sustaining treatmentSerious impact on persons future life choices e.g. ability to have children

Role of IMCARespond within 2 working daysMeet with the person and speak to those who know them to find out as much as possible about the persons wishes, values and beliefsTalk to professionals involvedAttend relevant meetings

Role of IMCASubmit a written report to the decision makerRecommend any courses of action that may help to support the decision making processEnable the decision maker to make decisions in the best interests of the personChallenge the decision if it does not seem appropriate

IMCA referralsUse referral formClear decision to be madeRecent assessment of decision specific capacityPhone and discuss

IMCA contact detailsNewcastle, North Tyneside and GatesheadYour Voice Counts 4786472 www.yvc.org.ukNorthumberlandSpiral Skills 0191 2715353 www.spiralskills.org

Decisions that cannot be made for someone lacking capacityConsenting to marriage or a civil partnershipConsenting to have sexual relationsConsenting to a decree of divorce on the basis of two years separationConsenting to the dissolution of a civil partnershipConsenting to a child being placed for adoption or the making of an adoption orderDischarging parental responsibility for a child in matters not relating to the childs property, orGiving consent under the Human Fertilisation and Embryology Act 1990.

Contact DetailsSteve BladesGP lead for safeguarding adultsstephen.blades@nhs.net

Deciding Rightwww.theclinicalnetwork.org

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