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,

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Page 1: 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

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.’

Page 2: 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

https://www.youtube.com/watch?v=syhKx6pxkxw

Page 3: 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

The 5 Principles of the MCA1. 3.

2. 5.

4.

Page 4: 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

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.

Page 5: 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

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

Page 6: 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

Assessing capacity

Level 2 stickers are available from EROS (CHA3065)Level 3 forms and Consent form 4s are available on the intranet

Page 7: 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

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

Page 8: 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

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

Page 9: 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

A decision made on the behalf of someone should always be in their

BEST INTERESTS

Page 10: 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

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

Page 11: 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

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

Page 12: 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

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.

Page 13: 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

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

Page 14: 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

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’

Page 15: 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

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.

Page 16: 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

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.

Page 17: 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

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

Page 18: 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

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.

Page 19: 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

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