the mental capacity act 2005 the mental capacity act (the act) 2005 came into force in england and...
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The Mental Capacity Act 2005
The Mental Capacity Act (The Act) 2005 came into force in England and Wales in 2007. The Act provides a statutory framework for assessing whether a person, aged 16 or above, has the mental capacity to make certain decisions
‘…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 disturbance in the functioning of, the mind or brain.’
https://www.youtube.com/watch?v=syhKx6pxkxw
The 5 Principles of the MCA1. 3.
2. 5.
4.
Decision MakerThe decision maker is the person proposing the treatment
or intervention. Anyone may be a decision maker and anyone can assess capacity, for example:
Wash and shave – Healthcare assistantCatheter insertion – Nurse
Surgery – ConsultantDischarge package or care / location – Onward Care
Blanket statements such as “Mr Smith lacks capacity” or “Mr Smith does not have capacity to decide on treatment”
are not acceptable. Mr Smith maybe able to consent to some treatment but not others.
Level 1: Day to day decisionsActivities of daily living, observations and simple diagnostic tests
– record in nursing notes
Level 2: More complex decisionsInvasive procedures, complex diagnostic tests, treatments, self
discharge – Level 2 MCA sticker
Level 3: Significant decisionsSerious medical treatment – Level 3 MCA form and Consent
form 4
Assessing capacity
Assessing capacity
Level 2 stickers are available from EROS (CHA3065)Level 3 forms and Consent form 4s are available on the intranet
There are two questions to be asked if you are assessing a person’s capacity. This two-stage test must be used, and
you must be able to show it hasbeen used.
Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain?
If so:
Is the impairment or disturbance sufficient to cause the person to be unable to make that particular
decision at the relevant time?
Assessing capacity
A Person must be able to:•Understand the information •Retain the information•Use or weigh the information•Communicate the decision
Failure on any one part indicates a lack of capacity to make the specific decision at that particular time
Reasonable belief is sufficient
A decision made on the behalf of someone should always be in their
BEST INTERESTS
Best Interest Decisions
• Consider if capacity may be regained in the future… if so wait!
• Consider the patients past and present wishes, beliefs and values
• Consult people who have an interest in the welfare of the patient
• Encourage the person to participate… even if they lack capacity
• Consider less restrictive options
• Do not solely base the decision on age, appearance or behaviour
• Do not be motivated by a desire to bring about the persons death
Independent Mental Capacity Advocates - IMCA
IMCAs referrals must be made when:A person has been assessed as lacking capacity to make a major decision about serious medical treatment or a longer-
term accommodation move and they have no family or friends to consult with
Referrals can be made by telephone on 0845 2799019 or referral forms are available on the RCHT intranet or the
SEAP website: www.seap.org.uk/imca
Deprivation of Liberty SafeguardsThe deprivation of liberty safeguards (DOLS) provide legal protection for those vulnerable people who are, or may become, deprived of their liberty within the meaning of Article 5 of the European Convention of Human Rights (ECHR) in a hospital or care home, whether placed under public or private arrangements.
The safeguards exist to provide a proper legal process and suitable protection in those circumstances where deprivation of liberty appears to be unavoidable, in a person’s own best interests.
Eligibility• The person is 18 or over
• The person assessed as suffering from a mental disorder
• The person has been assessed as lacking capacity to make decisions about their admission to hospital
• The person does not have any other existing authority for decision making in place which relates to the DOLS
• The person is not detained under the Mental Health Act (or could be e.g. 5/2)
• The person needs to be deprived of their liberty, in their best interests, to prevent harm to themselves
The way the a Deprivation of Liberty is defined changed significantly on the 19th of March 2014
The Cheshire West Ruling://www.youtube.com/watch?v=Nq1G9C7hKWk
Pre Cheshire West
Intensity v DegreeClinicians judgement
Compliance
Post Cheshire West
The ‘Acid test’
According to the law (specifically recent case law, known as Cheshire West) the ‘acid test’ to determine if there is a Deprivation of Liberty is:
- Does the person have a mental disorder? "mental
disorder means any disorder or disability of the mind" MHA 1983 (amended 2007)
- Is the patient under continuous supervision and control and not free to leave? Due to the hospital environment all patients in an acute hospital are under continuous supervision and control.
Whether the person is trying or able to leave and the purpose of the treatment is not relevant…
“A gilded cage is still a cage”
If the patient meets the acid test they are deprived of their liberty and this must be authorised by law.
As a result many patients who would not have been considered for DOLS prior to the Cheshire West judgement are now, according to the law, Deprived of their Liberty.
It is the responsibility of the clinical team caring for the patient to apply for a DOLS authorisation.
The DOLS application forms can be found on the RCHT website, the ‘Sister’s shelf’, or requested form the RCHT Safeguarding adults team.
Completed DOLS applications must be sent to both: •[email protected]•[email protected]
Trust signatories for DoLS forms are: Medical staff (ST3 and above), Ward Managers, Nurse in Charge, Matrons, Site Coordinators and Specialist Nurses
The patient must have a Mental Capacity Assessment indicating they lack the capacity to consent to their admission
The patient and their NOK must be given a letter informing them about the DOLS and an accompanying information
leaflet. The Trust has a legal duty to provide this information.
The patient must also be given a verbal explanation and this should be documented in the medical records.
All the paperwork required will be emailed in response to an application, it can also be found on the RCHT intranet, ‘Sister’s
Shelf’ or requested form the adult safeguarding team.
We are here to help!Various tools are available on the RCHT intranet to
support the correct application of the Mental Capacity Act
For advice and support contact:Lerryn Hogg - Specialist Nurse for Mental Health and Wellbeing
Ext 2638 Mobile 07789 876247GroupWise: [email protected]
Out of Hours contact the Clinical Site Co-ordinators