The Mental Capacity Act.

1. The Mental Capacity Act. Greg Payne Senior Practitioner Nottingham City Care Partnership

2. Session Plan • What is mental capacity? • FIVE guiding principles. • TWO stage test for mental capacity. • Consent to treatment. • Information about a person who lacks capacity.

3. Why do I need to know? • Certain categories of people are legally required to ‘have regard’ to the MCA Code of Practice. • This means they must be aware of what the Code of Practice requires. • The categories include anyone ‘being paid for acts for or in relation to a person who lacks capacity’.

4. What is Mental Capacity?

5. Mental Capacity is……… The ability to make a particular decision at the time it needs to be made.

6. The FIVE Principles. • Presumption of capacity. • Take all practicable steps to enable someone to make the decision. • Unwise decisions are allowed. • Identify the least restrictive alternative. • If no capacity, you must act in the person’s best interests.

7. Presumption of Capacity • ‘Every adult has the right to make their own decisions if they have the capacity to do so. Family carers, healthcare or social care staff must assume that a person has capacity to make decisions, unless it can be established that the person does not have capacity’

8. Take all Practicable Steps ‘ All practical and appropriate steps must be taken to help people make a decision for themselves. Information must be tailored to an individual’s needs and abilities. It must also be in the easiest and most appropriate form of communication for the person concerned’

9. Unwise Decisions ‘Everybody has their own values, beliefs preferences and attitudes. A person should not be assumed to lack capacity to make a decision just because other people think their decision is unwise. This applies even if family members, friends or healthcare or social care staff are unhappy with a decision’

10. The Least Restrictive Alternative Before the act is done, or the decision 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.

11. Best Interests • An act done, or decision made, under the Mental Capacity Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

12. What is the test for mental capacity? • The TWOstage test.

13. Don’t we always assume capacity then? • Person is behaving in such a way as to suggest they lack capacity. • Someone who knows the person suggests they lack capacity. • Someone has previously been assessed as lacking capacity. ALERT THE PROFESSIONAL THE PERSON IS DUE TO SEE.

14. Who assesses mental capacity? • The person who is directly concerned with the individual at the time the decision needs to be made. • It could be you!!!!!! • Likely to be the professional delivering care or treatment.

15. This is going to take a long time isn’t it? • The best mental capacity assessment is a good conversation. • Consider each part of the test for capacity; how could you contribute to the assessment?

16. Stage 1. • Does the individual have an impairment of or a disturbance in the functioning of the mind or brain? • If no, individual has capacity and the test ends there. • If yes, continue to stage 2.

17. What might constitute an impairment of or a disturbance in the functioning of the mind or brain?

18. I’m not a Psychiatrist!! • All you need is a……. ‘REASONABLE BELIEF’

19. Stage 2. • Can the individual understand all of the relevant information? • Can the individual retain the information long enough to make the decision? • Can the individual use or weigh the information as part of a process to arrive at a decision. • Can the individual communicate the decision?

20. Understanding the information relevant to the decision. • The information relevant to a decision includes information about the reasonably foreseeable consequences of; • Deciding one way or another. • Failing to make the decision.

21. Retaining the relevant information. • ‘The fact that a person is able to retain the information relevant to the decision for a short period only does not prevent him from being regarded as able to make the decision.’

22. Using or weighing the relevant information as part of the process of making the decision. • A person with an eating disorder may understand the consequences of not eating but the compulsion to not eat is too strong. • Some people with brain injuries may make impulsive decisions despite understanding relevant information.

23. Communicating the decision. • Can be by talking, using sign language or any other means. • All practicable steps should be taken to support communication. • Refusal or reluctance to communicate does not constitute an inability to communicate.

24. Stage 2. • If the answer to any of the four parts of stage 2 is NO, the person lacks the capacity to make the decision.

25. The two stage test. • The first part, the ‘diagnostic test’, must be met + • If the person fails any single part of the ‘functional test’ = • The person lacks mental capacity to make the decision.

26. The individual completing the capacity assessment need only hold a ‘reasonable belief’ that the person has failed the test.

27. Lack of capacity and consent. • If someone lacks the capacity to give consent or to refuse care or treatment, who can give consent on their behalf?

28. Only a Lasting Power of Attorney (health and welfare) or a Court Appointed Deputy can consent to treatment. • However……………

29. Section 5 of the MCA allows someone to perform an act in connection with care and treatment if: • Reasonable steps have been taken to establish a lack of capacity. • The assessor believes that the person lacks capacity. • The assessor is acting in the person’s best interests.

30. How do I know what is in someone’s best interests? • The relevant circumstances. • The least restrictive alternative. • Avoid discrimination. • Encourage participation. • Can the person regain capacity. • Life sustaining treatment. • Consider the views of others.

31. The views of other people. • Carers, family members and others have a statutory right to be consulted. • The person making the determination must consult: • Anyone named by the person. • Anyone engaged in caring for the person. • Any donee of a lasting power of attorney. • Any court appointed deputy.

32. What rules govern access to information about a person who lacks capacity?

33. What information can people see? • Section 7 of the Data Protection Act 1998 gives everyone the right to see information that an organisation holds about them. • A person may authorise someone else to access information on their behalf. • Healthcare staff can not share information without the patient’s consent.

34. What if the patient does not have the capacity to give consent? • Healthcare staff may disclose information only if it is in the person’s best interests. • Only information relevant to the decision should be disclosed.

35. What if the patient does not have the capacity to give consent? • Does the person requesting the information have any formal authority? • Are they acting in the best interests of the person concerned? • Do they need the information to act properly? • Should I get written confirmation or discuss with a manager?

36. Any questions?