Mental Capacity Act 2005 Implications for Care and Treatment

1. Mental Capacity Act 2005Implications for Care and Treatment Paul Harper Mental Capacity Act/DOLS Lead

2. Aims of the training • Clarify issues around consent to treatment. • Ensure a working knowledge of the Mental Capacity Act. • Explore when and how to undertake capacity assessments. • Develop a basic understanding of The Deprivation of Liberty Safeguards.

3. Consent • The starting point is that everyone has the right to determine what happens to their own bodies. (Article 8 ECHR ‘Everyone has the right to respect for his private and family life’) • Touching someone without valid consent may constitute the civil or criminal offence of battery unless authorised by the MHA. • This could lead to challenges of negligence and compensation.

4. Types of Consent • Verbal/non verbal • Written • Implied • To be valid it must be; • :Given freely without duress. • :The patient must have been given sufficient information to understand the implications. • :The patient must have the mental capacity to give consent to the treatment or intervention. • :Consent can be withdrawn at any point.

5. Adults Children and Young People • Consent for adults (over18) governed by common law. • “Young People” Aged 16 and 17 are often treated as adults by the courts. • Younger children who understand fully what is involved in the proposed procedure can also give consent (although their parents will ideally be involved). • In other cases, someone with parental responsibility can give consent on the child’s behalf, unless they cannot be reached in an emergency.

6. What is the Mental Capacity Act 2005 (MCA)? • Developed to bring together and integrate existing law • Puts the needs and wishes of a person who lacks capacity at the centre of any decision making process

7. MCA Code of Practice

8. Which staff will be affected by the MCA? • People working in a professional capacity, e.g. doctors, nurses, dentists and social workers • People who are paid to care or support, e.g. home care workers and care assistants • Anyone who is a deputy appointed by the Court of Protection • Anyone acting as an independent mental capacity advocate (IMCA) • Anyone carrying out research involving people who may lack capacity

9. Children and young people • The MCA applies to people who are 16 years old or older • 16 or 17 year olds who lack capacity can be treated under the MCA – their parents should be consulted unless the young person does not wish this • the Court of Protection can be involved in decisions for someone under 16 if they are likely to still lack capacity at 18 • People have to be 18 to make LPAs and advance decisions

10. What is mental capacity? • Mental capacity is the ability to make a decision • Capacity can vary over time • Capacity can vary over the decision to be made • Physical conditions, such as location, can affect a person’s capacity • Staff must not assume a lack of capacity because of a person’s age, physical appearance, condition or an aspect of their behaviour

11. The five core principles(Code of Practice, Chapter 2) • Every adult must be assumed to have capacity unless it is proven otherwise. • All reasonable steps must be taken to assist person to make the decision themselves. • Individuals have the right to make unwise decisions, even those others may consider eccentric. • All actions on behalf of those who lack capacity must be in their ‘best interests. • Any treatment should be done in the least restrictive manner of the persons basic rights and freedoms.

12. What is lack of capacity? • An individual lacks capacity if they are unable to make a particular decision • This inability must be caused by an impairment or disturbance in the functioning of the mind or brain, whether temporary or permanent • Capacity can vary over time and depends on the type of decision

13. Which Patients may this affect ? • dementia • learning disability • CVA / brain injury • severe mental illness • anyone planning for the future • temporary loss of capacity, unconscious because of an accident or anaesthesia or because of alcohol or drugs

14. What triggers an assessment? Staff should start from a presumption of capacitythen take into account: • the person’s behaviour • their circumstances • any concerns raised by other people

15. How is capacity assessed? Factors to be considered include: • general intellectual ability • memory • attention and concentration • reasoning • verbal comprehension and expression • cultural influences • social context

16. How to assess capacity(Code of practice, 4.11-4.13) • The two-stage test of capacity: • is there an impairment of, or a disturbance in, the functioning of the 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?

17. Questions that must be considered when assessing capacity Does the person have the ability to: • understand the information? • retain information related to the decision? • use or assess the information while considering the decision? • communicate the decision by any means?

18. What kind of records will staff need?(Code of Practice, 4.60-4.62) • No formal documentation is required for day- to-day decisions or for consent to care. • A healthcare professional proposing treatment should record an assessment of capacity in the patients notes or on specific documentation designed for this purpose.

19. Who can be a decision maker? • Varies depending on the individual’s circumstances and the type of care or treatment or decision being considered • Health and social care staff, family and unpaid carers can be decision makers when decisions relate to carrying out an act on behalf of somebody who cannot consent • The person delivering the care or treatment makes the decision about whether to deliver that care or treatment • Section 5 of the MCA gives protection from liability

20. Best interests(MCA, Section 4; Code of Practice, 5.1-5.69) • Any decision or act must be in a person’s best interests • When making decisions, staff should take account of the following: • equal consideration and non-discrimination • considering all relevant circumstances • regaining capacity • permitting and encouraging participation • special considerations for life-sustaining treatment • the person's wishes, feelings, beliefs and values • the views of other people

21. Restraint

22. Restraint

23. Examples of Restraint • 1:1 Staffing or close supervision • Sedation • Bed rails • Patient denied access to everyday clothing • Locked doors. • Patient requests to leave the ward declined

24. Restraint • Section 6 (4) of the Act states that someone is using restraint if they: • Use force or threaten to use force –to make someone do something that they are resisting ,or • Restrict a persons freedom of movement whether they are resisting or not.

25. Restraint • In order for restraint to be lawful the person taking action must reasonably believe that restraint is necessary to prevent harm to the person who lacks capacity. • The type of restraint and duration must be a proportionate response to the likelihood and seriousness of harm to the person.

26. Deprivation of Liberty Safeguards(DOLS) • Only relevant to patients in registered care homes and Hospitals. • Not applicable to patients in their own homes. • You may not utilise a level of restraint that would amount to depriving a patient of their liberty. • BUT Restraint or restriction does not necessarily result in deprivation.

27. Lasting Powers of Attorney(MCA, Sections 9-14; Code of Practice, Chapter 7) • Two different LPAs to cover a range of circumstances: • personal welfare (including healthcare) • property and affairs (finance) • Who can be an attorney? • family • friend • professional, e.g. lawyer • An attorney must be over 18 years old • An individual can be an attorney for more than one person • Staff should not normally act as attorneys

28. Advance decisions • An advance decision is prepared when a person has capacity • It is a decision to refuse specified treatment and is binding • Other expressions of an individual’s preferences are not binding but must be considered • Staff must be able to recognise when an advance decision is valid • An advance decision must be written, signed and witnessed if life-sustaining treatment is being refused • A relevant LPA will override an advance decision if it is made after the decision • An advance decision can be withdrawn: • by the individual while they have the capacity, or • if the individual does something that is clearly inconsistent with the advance decision, or • by the decision maker if treatment is now available that was not available when the advance decision was made

29. Independent mental capacity advocates (IMCAs) • IMCAs are a local service to represent the interests of: • people lacking capacity when making a serious decision about medical treatment or a move, and in some adult protection cases, and if • they have no one else to speak for them other than paid carers, and • their care is arranged by their local authority or NHS • The IMCA has a right to information about the person who lacks capacity but is not a decision maker

30. Acting lawfully in connection with care or treatment • Section 5 of the MCA provides protection from liability provided that all the MCA requirements are met • Includes acts of: • personal care: Dressing, washing, feeding • healthcare and treatment: Diagnostics, Taking blood, Giving medication, providing nursing care.

31. New criminal offences of ill-treatment or wilful neglect(MCA, Section 44; Code of Practice, Chapter 14) New offences apply to: • people who have the care of a person who lacks capacity • An attorney under a LPA or EPA • A deputy appointed by the Court Criminal offences can result in a fine and/or a sentence of imprisonment of up to five years

32. Court of Protection Application can be made to the Court of Protection if: On-going decisions may be needed for a person who lacks capacity. To arrange a court appointed deputy. Or A particularly difficult decision is required, such as withdrawing/withholding artificial nutrition and hydration. Disagreements can not be resolved in any other way.

33. Remember.. In emergencies, decisions will need to be made immediately. Where there is doubt as to the appropriateness of treatment, there should be a presumption in favour of providing life-sustaining treatment.

34. IMPORTANT.. Where an adult patient lacks the mental capacity (either temporarily or permanently) to make a decision for themselves; NO ONE IS ABLE TO GIVE CONSENT TO THE EXAMINATION OR TREATMENT ON THEIR BEHALF… Unless; they have a Welfare Lasting Power of Attorney or Deputy of Court of Protection However you could make a best interest decision for this person under the MCA 2005

35. Paul Harper • Mental Capacity Act/ DOLS Lead • East Lancs Hospitals Trust • Family Care Division • Children's Out-Patient's Department • Burnley General Hospital • Casterton Avenue • Burnley BB10 2PQ • 07944 194866 • Paul.harper@elht.nhs.uk