Professions and Care Standards Anita Winter, Service Director (on behalf of the MCA/DoLS Steering Group

Transcription

1 Policy: Advance Decisions to Refuse Treatment/Advance Statements Executive or Associate Director lead Policy author/ lead Feedback on implementation to Liz Lightbown, Executive Director of Nursing, Professions and Care Standards Anita Winter, Service Director (on behalf of the MCA/DoLS Steering Group) MCA/DoLS Steering Group Document type Policy Document status Final Date of initial draft August 2016 Date of consultation August to October 2016 Date of verification 5 October 2016 Date of ratification 13 October 2016 Ratified by Executive Directors Group Date of issue 2 November 2016 Date for review 30 September 2019 Target audience Keywords All staff Advance, decision, refuse, treatment, statement Policy Version and advice on document history, availability and storage This policy replaces previous version (V1) of this policy. This policy will be available to all staff via the Sheffield Health & Social Care NHS Foundation Trust Intranet and on the Trust s website. The previous version will be removed from the Intranet and Trust website and archived. Word and pdf copies of the current and the previous version of this policy are available via the Director of Corporate Governance. Any printed copies of the previous version (dated February 2008) should be destroyed and if a hard copy is required, it should be replaced with this version. 1 P a g e

2 Contents Section Page Flowchart 1: Making Advance Statements/Advance Decisions 3 Flowchart 2: Responding to Advance Statements/Advance Decisions 4 1 Introduction 5 2 Scope of this policy 5 3 Definitions 6 4 Purpose of this policy 6 5 Duties Chief Executive Service Director Team Ward and Departmental Managers Individual Employees 7 6 Process: Specific details Procedure/Implementation Making an Advance Decision Format of Advance Decisions The Response to an existing Advance Decision 13 7 Dissemination, storage and archiving 15 8 Training and other resource implications 15 9 Audit, monitoring and review Implementation plan Links to other policies, standards and legislation (associated 17 documents) 12 Contact details References 17 Appendices Appendix A Version control and amendment log 18 Appendix B Dissemination Record 19 Appendix C Equality Impact Assessment Form 20 Appendix D - Human Rights Act Assessment Checklist 22 Appendix E Development and Consultation Process 24 Appendix F Policy Checklist 25 2 P a g e

3 Flowchart 1: Making Advance Statements/Advance Decisions Does the service user have capacity to make an Advance Statement/Advance Decision? No Yes The service user cannot make an Advance Statement/Advance Decision to refuse treatment. Revisit this if they gain/re-gain capacity. Offer information and support around making an Advance Statement/Advance Decision. Does the service user now have an Advance Statement/Advance Decision? No Yes Offer information and support around making an Advance Statement/Advance Decision as appropriate in future. Ensure this is stored in a place where it can easily be found on the service user s record and prompt the person to review it as appropriate. 3 P a g e

4 Flowchart 2: Responding to Advance Statements/Advance Decisions Does a decision need to be made on behalf of a person who lacks capacity to make that decision for him/herself? No Advance Statements/Advance Decisions not relevant at this time. Yes Has the person made an Advance Statement/Advance Decision relevant to the decision that needs to be made? Yes No Don t know These should be taken into account as part of the decision making process. NOTE: a valid and applicable Advance Decision is legally binding. The decision should be taken in the person s Best Interests as described in the Mental Capacity Act or under the Mental Health Act if needed. Efforts should be made to locate any Advance Statement/Advance Decision. However, emergency treatment must not be delayed in order to look for an Advance Decision if there is no clear indication that one exists or its validity and/or applicability not clear. 4 P a g e

5 1. Introduction 1.1 The Mental Capacity Act (MCA) 2005, came into force in October 2007 and for the first time provides a legal framework for acting and making decisions on behalf of vulnerable people who lack the mental capacity to make specific decisions for themselves. The MCA provides a statutory framework to empower and protect such individuals. It makes it clear who can take decisions, in which situations and how they should go about this. It also enables people to plan ahead for a time when they may lose capacity. 1.2 Sheffield Health & Social Care NHS Foundation Trust acknowledges that it is the right of every adult service user to influence their care and treatment and Advance Decisions to refuse treatment (henceforth referred to as Advance Decisions ) and Advance Statements provide an opportunity to support autonomy, shared decision making and the recovery process. 1.3 In striving to achieve a more balanced partnership between service users and health and social care professionals the Trust has developed this Policy for Advance Decisions to Refuse Treatment/Advance Statements. Its aim is to assist and guide those service users who wish to plan for their future care and provide clear guidance to those professionals responsible for delivering such care. 1.4 An Advance Statement is an expression of wishes by a service user setting out how they would prefer to be cared for/treated if they lose capacity to make decisions for themselves. Such expressions of wishes/preferences must be taken into account when considering an incapacitated service user's best interests, but they are not legally binding. 1.5 Making decisions in advance might help to ensure that the care a person receives is the care that she/he would want in certain circumstances. This Policy provides a framework for the effective support of this process and the Trust actively encourages all service users to plan ahead. 1.6 An Advance Decision is a refusal to accept certain treatments in the future if specified circumstances arise once the person has lost capacity. Advance Decisions are governed by the Mental Capacity Act 2005 and, if valid and applicable to the circumstances arising, are legally binding. 1.7 This guidance should be read in conjunction with the Mental Capacity Act 2005 and the Mental Capacity Act Code of Practice (2007). It is not a substitute for the Mental Capacity Act or the Code of Practice, to which all professionals must adhere. Other documents to be read in conjunction with this policy are: Consent to Care and Treatment Policy Mental Health Act 1983 Professionals must act with due care and attention and may be legally liable if they disregard a valid and applicable Advance Decision. 2. Scope 2.1 Sheffield Health & Social Care NHS Foundation Trust supports the use of Advance Statements and Advance Decisions to enhance communication between service users, carers and staff. This guidance applies to all service users who have made an Advance Statement or Advance Decision or may be in a position to make one. 2.2 This policy must be adhered to by everyone in a paid, professional or voluntary capacity who is involved in the care, treatment or support of people over 16 years under the care of the Trust. This includes staff employed by the Trust, social care and health staff who are either 5 P a g e

6 seconded to the Trust or work in partnership with the Trust and volunteers who are working within the Trust. 3. Definitions 3.1 The definitions are set out here to ensure clarity, as there are a number of terms that are often used interchangeably, sometimes misleadingly Advance Statements is a general statement of a person s wishes and views. People who understand the implications of their choices can state in advance how they wish to be treated if they suffer loss of mental capacity. It can reflect their religious beliefs or other beliefs that they have and allows the person to state how they would like to be treated should they not be able to communicate their wishes in the future Advance Decisions Advance Decisions are governed by the MCA 2005 and relate to refusals of specified treatment if specific circumstances arise in the future at a time when the person no longer has mental capacity. Advance Decisions are sometimes also known as advance directive, advance refusal or living will. However, the statutory term is Advance Decision and will be used from hereon. A valid Advance Decision which is applicable to the circumstances which arise is legally binding in the same way as a contemporaneous refusal by a person with capacity with the exception of treatment of mental disorder in people who are detained under the MHA Professionals may be legally liable if they administer treatment that a service user has refused in a valid and applicable advance decision. 4. Purpose 4.1 The purpose of this guidance is to ensure that the Trust upholds service users legal rights and acts in accordance with good practice in relation to Advance Statements/Advance Decisions. 5. Duties 5.1 Chief Executive The Trust Board has ultimate responsibility and ownership for the quality of care, support and treatment provided by the Trust. This includes the implementation of the Policy throughout the Trust and ensuring its effectiveness in the delivery of good practice with regard to Advance Statements/Advance Decisions. Demonstrating strong and active leadership from the top; ensuring there is visible, active commitment from the Board and appropriate board-level review of good practice with regard to Advance Statements/Advance Decisions; Ensuring there is a nominated Executive Director leading on the Board s responsibilities with regard to Advance Statements/Advance Decisions; Ensuring there are effective downward and upward communication channels embedded within the management structures; to ensure the communication of the need for all staff to be aware of their responsibilities in relation to Advance Statements/Advance Decisions; Ensuring finances, personnel, training, care records and other resources are made available so that the requirements of this policy can be fulfilled; Ensuring all health and social care staff take responsibility for meeting the requirements of this Policy; Maintaining on-going accountability for good practice regarding Advance Statements/Advance Decisions through management roles and responsibilities. 6 P a g e

7 5.2 Service Director Senior Managers and Directors have responsibility for developing, implementing and reviewing and updating the Trust s policies and procedures as an integral part of day-to-day operations. They have a duty to take all practicable measures to ensure that health and social care staff pay due regard to Advance Statements/Advance Decisions. These include the following: Providing leadership and direction with regard to Advance Statements/Advance Decisions; Ensuring staff receive any relevant training and supervision on Advance Statements/Advance Decisions; Ensuring the implementation of this policy is monitored through clinical audit, service user or staff surveys or other appropriate methods; Ensuring improvements are made to staff performance around Advance Statements/Advance Decisions where necessary; Ensuring suitable access, arrangements, IT provision and support and documentation are provided to enable staff to record Advance Statements/Advance Decisions in the care record. 5.3 Team, Ward and Departmental Managers Team, Ward and Departmental Managers have responsibility for: Ensuring the dissemination, implementation and monitoring of this Policy through existing staff forums; Ensuring all staff they manage pay due regard to issues around Advance Statements/Advance Decisions; Ensuring all staff follow Trust policy and any relevant professional regulatory body guidance on Advance Statements/Advance Decisions Ensuring that staff are conversant with the Policy and associated procedures and documentation and that they understand the importance of complying with its requirements; Ensuring practice around Advance Statements/Advance Decisions is monitored through audits, staff surveys, service user surveys and any other appropriate way of monitoring and taking active steps to remedy any deficiencies found; Allocating the necessary resources to achieve the goals of this policy. 5.4 Individual Employees All health and social care staff working for the Trust have a responsibility to: Always be mindful of the importance of Advance Statements/Advance Decisions Become familiar with and abide by this Policy and all associated procedures, guidelines and documentation; Abide by the code of ethics and practice and any associated guidelines on Advance Statements/Advance Decisions defined by their professional regulatory body e.g. GMC, NMC. Undertake relevant training about the Mental Capacity Act and consent, Advance Statements/Advance Decisions as required by the Trust; Undertake regular clinical supervision and seek advice on any areas of difficulty or complexity with regard to Advance Statements/Advance Decisions; Seek advice and report any concerns with regard to colleagues ethical practice around Advance Statements/Advance Decisions to the appropriate manager or clinical supervisor. 7 P a g e

8 6. Process: Specific details 6.1 Procedure/Implementation Advance Statement A person may make a general Advance Statement reflecting their wishes and feelings relating to how they would like to be treated in the future if they lose capacity. Advance Statements about care and treatment that a person would like are not binding in law i.e. those staff members responsible for the care and support of a service user do not have to follow them, but they should be considered. Staff must be able to demonstrate that, wherever possible, the service user s wishes have been taken into account as part of considering what is in the service user s best interests if they lose capacity. This includes taking into account any wishes set out in an Advance Statement. If a service users wishes are not followed then reasons for this must be documented in the service user s records. Examples of issues which may be included in an Advance Statement: An appointment of representative: a service user may name another person to be consulted about health care decisions when the service user lacks the capacity to decide for him/herself. The named person should be consulted in considering what is in the service user s best interests once they lose capacity. However, the views of the named person will not be legally binding unless they have been granted Lasting Power of Attorney to make personal welfare decisions on a service user's behalf or appointed as a Court Appointed Deputy under the provisions of the Mental Capacity Act A statement about particular treatment: the person would like to receive should they become unwell. Although not legally binding, this should be taken into account when deciding treatment. A statement of general beliefs: on various aspects of life which an individual values. This statement contains no specific request or refusal but attempts to paint a picture of the individual as an aid to healthcare professionals in deciding what the service user would want. To make an Advance Statement: The service user must have capacity to decide to make the statement. The Advance Statement should preferably be in writing; although a service user s verbally expressed wishes should also be taken into account when considering what is in their best interests. Staff should facilitate the recording of a service user s Advance Statement in writing, if the service user has the capacity, but is unable to write. There is no set format for an Advance Statement but examples are available. The content of an Advance Statement should be the service user s own views and wishes, and should not be unduly influenced by any other person. If staff feel this is the case, they must bring this to the attention of the appropriate manager, who will seek further advice as needed. The Advance Statement must be clear. If the statement is unclear or ambiguous it must be discussed, and clarified with the service user while they still have capacity. An Advance Statement can name another person, who should be consulted at the time a decision needs to be made. An Advance Statement can be made in conjunction with the care coordination process (which may be the Care Programme Approach (CPA)), and a copy should be kept within 8 P a g e

9 the care record. It is important that, where appropriate, service users are given information about Advance Statements as part of their assessment and/or CPA review. Service users can withdraw or alter their Advance Statement at any time while they have capacity. It is the service user s responsibility to notify the Trust of any changes made to their Advance statement. Storage of an Advance Statement: If a staff member is either given an Advance Statement by a service user, or involved in supporting them to write one, they need to ensure that it is available in a place where it is easy to find on Insight (or whichever record keeping system is being used) For services that use Insight, Advance Statements should be uploaded as documents to a service user s care record. This could be either in the form of a Word document or a scanned document (this is needed because it has been created by the service user or they have signed it, for example) This document must have a clear title in the form Advance Statement of month year An Insight warning should be placed on the service users care record stating see Advance Statement of month year People working with the service user should regularly check whether they still wish their Advance Statement to be on their file (this could be done as part of the Care Programme Approach or other care coordination processes) If a service user wishes an Advance Statement to be withdrawn, superseded or amended, then the staff member becoming aware of this should make a request for a change to Insight (via the form available on the Intranet) to have the title of the document changed to WITHDRAWN Advance Statement of month year. The Insight warning should be appropriately updated If it is some time since an Advance Statement was put in place, it would be good practice to upload a new version to Insight with a new date on (requesting that the old version be marked WITHDRAWN) as per the previous bullet point. This will help to ensure that, should it need to be used, workers will see that the person has made the Advance Statement at a more recent time Advance Decision An Advance Decision to refuse treatment can only be made by an individual aged 18 and over with capacity to make Advance care and treatment decisions. In the event of losing capacity in the future, a properly made Advance Decision is as valid as a contemporaneous decision (that is, one made at that time). There are no set formats for Advanced Decisions; they can be written, witnessed oral statements or written statements, printed cards or notes of a discussion recorded in the clinical record. All versions are acceptable but the important element is that the Advance Decision is clear and unambiguous. The Advance Decision may be written in medical language or in lay terms, and must be clear and unambiguous in order to be legally enforceable. An important exception to this is the refusal of life sustaining treatment which must be in writing (and must comply with a number of other requirements set out at section 25 (5) (a) (b) and section 25 (6) (a) (b) (c) (d) of the Mental Capacity Act 2005 in order to be legally binding). An Advance Decision can apply to care and treatment in hospital, at home, in a nursing home or in a hospice. A valid Advance Decision refusing treatments, which is applicable to the circumstances arising, is legally binding and must therefore be followed. The Advance Decision must be clear and unambiguous in order to be legally enforceable. The health professional treating the service user must be assured of the following to ensure that the Advance Decision is valid and applicable. 9 P a g e

10 The person was competent at the time the Decision was made. Professionals must be satisfied that the Advance Decision was made whilst the person had capacity to make it. In line with the wider Mental Capacity Act, the healthcare professional must start from the assumption that the person had capacity to make the Advance Decision, unless they are aware of reasonable grounds to doubt this capacity. The service user is free from the undue influence of others. Professionals must be satisfied that the Advance Decision was not based on false information or pressure from other people. The service user is sufficiently informed. Professionals must assure themselves that the service user understood the implications of the decision they made at the time and also that they have acted in a way that is consistent with the Advanced Decision. There is no requirement for an individual to take professional advice. The person intended the refusal to apply to the circumstances that subsequently arise. The person must have envisaged the type of situation the decision applies to. The Advance Decision can be deemed invalid if it does not apply to a specific treatment or the stated circumstances. For example, a new anti-psychotic medication may become available after an Advance Decision is made. If it is not specified, the Advance Decision could be taken to mean that a refusal of medication might not apply to newly available medication. An Advance Decision will not be valid where: The service user has withdrawn the Advance Decision, at a time when he or she had capacity to do so (NB. withdrawal of an Advance Decision does not have to be in writing); The service user has under a Lasting Power of Attorney, created after the Advance Decision was made, conferred authority on a Donee(s) to give or refuse consent to the treatment to which the Advance Decision relates; or The patient has done or said anything which is inconsistent with the contents of the Advance Decision (which suggests that they have changed their mind) and has not reaffirmed their Advance Decision subsequently; An Advanced Decision refusing basic care is also invalid. An Advance Decision may not refuse, for example, warmth, shelter and hygiene measures to maintain body cleanliness and the offer of oral food and hydration by mouth such care may be provided in the best interests of a person lacking capacity to consent to it. An Advance Decision can refuse artificial nutrition and hydration. An Advance Decision will not be applicable if: The service user has capacity to make the decision at the time the treatment is proposed; It is unclear what treatment is being refused; There are reasonable grounds for believing that circumstances now exist which the service user did not anticipate at the time of writing the Advance Decision, which would have affected the decision, such as advances in treatment or changes in service user s religious beliefs. Service Users detained under the Mental Health Act (MHA) P a g e

11 The MHA 1983 takes precedence and prevails over Advance Decisions when it comes to treatment for mental disorder. This means that where a service user is subject to compulsory detention and treatment under Part IV MHA 1983, with the exception of non-urgent ECT (Electroconvulsive Therapy); see below, an Advance Decision is not legally binding on decisions relating to the service user s mental disorder. However, the Responsible Clinician should take an Advance Decision or Advance Statement into consideration when deciding upon a treatment plan and where it is decided to go against the service users preferred wishes the reason is to be recorded in the patient s clinical records. Advance Decisions made by detained service users will still be legally binding insofar as they relate to treatment which is not connected with their mental disorder. For example, a decision made to refuse treatment for a service user s physical health, which is not covered by the MHA 1983, must be adhered to if, it is valid and applicable to the circumstances. Treatment for a service user s mental disorder under the MHA 1983 can include treating the symptoms or consequences of the mental disorder, as well as the treatment(s) which are a necessary pre-requisite to treatment for the service user s mental disorder. For example, feeding a detained patient with anorexia nervosa by nasogastric tube would be likely to come under compulsory treatment under the MHA 1983 because the treatment (feeding) is aimed at treating a symptom of the mental disorder. Further notes regarding the Mental Health Act: Except in emergencies, treatment to which section 58A applies cannot be given contrary to a valid and applicable advance decision, and An incapacitated adult who is not detained under the Mental Health Act 1983 could be given ECT under s.5 and s.6 of the Mental Capacity Act However, such treatments cannot be provided if the patient has made a valid and applicable Advance Decision refusing ECT or if a Donee or Deputy has refused such treatments on the patient's behalf (see the provisions of section 58 A of the MHA 1983). Mental Health Act s62 applies, so a valid and applicable Advance Decision refusing ECT can be overridden in emergency circumstances, Mental Health Act s62(1)(a)-(b). The SOAD (second opinion appointed doctor) cannot authorise on-going treatment in the face of the Advance Decision. Community Treatment Order (CTO) patients who have not been recalled to hospital (part 4A patients) are not liable to be detained. As such, a valid Advance Decision is legally binding unless treatment is given in emergencies. 6.2 Making an Advance Decision Advance Decisions are a means for allowing service users to have greater influence on their care and treatment. They embody the spirit of the Human Rights Act in Article 3 - protection from inhuman and degrading treatment, Article 8 - respect for privacy and private life, and Article 10 - freedom of expression At the time of making an Advance Decision if a member of Sheffield Health & Social Care NHS Trust staff are involved in the drafting or recording of an Advanced Decision: The service user must: Have the capacity to do so. Service users must be presumed to have had capacity at the time of making the Advance Decision unless there is evidence to the contrary. Be aged 18 or over. 11 P a g e

12 The Advance Decision must: Set out clearly the treatment which is not to be carried out or continued. Set out any circumstances which are applicable to the decision People are under no obligation to involve professionals when writing an Advance Decision Professionals consulted at the drafting stage must take reasonable steps to ensure that service user s decisions are not made under duress. If professionals, when consulted, suspect there may be duress or undue influence from others, they must bring this to the attention of the appropriate manager Decisions may evolve in stages over time and with discussion. It is not advisable to make complicated decisions at one time without further review It is useful for the service user to consult with carers and other health professionals when making Advance Decisions to ensure that their decisions are based on realistic views. Professionals must consider the following if asked for assistance with an Advance Decision: Does the service user have sufficient knowledge of the condition? Does the service user have sufficient knowledge of possible treatment options? Is it clear that the service user is reflecting their own view and not being pressured by other people? Is the service user aware of the risks of Advance Decisions as well as the benefits? Are professionals aware that any doubt or ambiguity about intention or capacity at the time of drafting the decision could lead to it becoming invalid? This is particularly important where the decision involves advances of care e.g. new medications Professionals must document in the clinical records all involvement and discussions about Advance Decisions. It is worth noting that some forms of treatment referred to in Advance Decisions should also be reflected in CPA documentation such as the CPA crisis plan. Care must be taken to ensure these are not contradictory. Where an Advance Decision is received by a professional in the form of an oral statement, this be should recorded and the service user should be asked to sign this document (if they are able to do this) in the presence of a witness (the witness should not be the staff member who records the Advance Decision). This is a matter of good practice. A witnessed signature is only a legal requirement in the case of Advance Decisions refusing life-sustaining treatment Information should be provided in an accessible format to assist in making informed choices. Advance Decisions should be understood as an aid to, rather than a substitute for, open dialogue between service users and health professionals. An open attitude and a willingness to discuss the advantages and disadvantages of certain options can do much to establish trust and mutual understanding. 6.3 Format of Advance Decisions There is no nationally agreed or set format for an Advance Decision. It is considered that having a set format may undervalue those alternative methods for expressing preferences, including an oral statement. There are organisations that provide Advance Decision formats for use by service users and make these available on the internet There is a proforma for both Advance Statements and Advance Decisions provided for service users of this Trust to use if they wish it must be stressed that a person may use whatever format they wish, including a verbal request. Service users may prefer not to make a legal 12 P a g e

13 document, and may talk to a professional about their wishes and have these reflected in their record, for example their medical notes and/or CPA documentation. In such cases, service users should be encouraged to check the notes made about them to ensure that they agree with what is written before signing them. This would be a legal document The service user and a witness should sign the Advance Decision (although signing and witnessing the Advance Decision is not necessary to make the refusal legally binding unless it is intended to apply to life sustaining treatment (see point on life sustaining treatment below). The witness should only witness the maker s signature and attest that it appears that the maker intends the signature to give effect to the Advance Decision. The role of the witness does not involve certifying the capacity of the person making the Advance Decision. In some situations, a professional such as a doctor may be asked to act as witness; however an Advance Decision does not have to be signed by a doctor to make it valid In drawing up an Advance Decision it is recommended that the minimum information below is included: Full name Address Name and address of General Practitioner Whether advice has been sought from health professionals A statement that the Decision is intended to have effect if the maker lacks capacity to make treatment Decisions A clear statement of the decision, specifying the treatment(s) to be refused and the circumstances in which the decision will apply or which will trigger a particular course of action Signature of the person the Advance Decision refers to Date drafted and date reviewed Witness signature and relationship to individual Life sustaining treatment - Life-sustaining treatment is defined as treatment which a person providing health care regards as necessary to sustain life. Whether a treatment is life sustaining depends not only on the type of treatment, but also on the particular circumstances in which it may be prescribed. For example, in some situations giving antibiotics may be life sustaining, whereas in other circumstances antibiotics are used to treat non-life-threatening conditions. The important factor here is that the treatment is necessary to sustain life at that time. It is for the doctor to assess whether a treatment is life-sustaining in each particular situation. If the Advance Decision includes an Advance refusal of life-sustaining treatment, a requirement within the Mental Capacity Act 2005 is that it must be in writing and should state that the Advance Decision is to apply even if life is at risk. It must be signed by the service user (or by another, on behalf of the service user and in the service user s presence) and with the service user s permission, if they cannot sign) and when the Advance Decision is signed it must be witnessed and then countersigned by the witness. 6.4 The Response to an existing Advance Decision Healthcare professionals will be protected from liability for failing to provide treatment if they reasonably believe that a valid and applicable Advance Decision to refuse treatment and is applicable to the current circumstances. Therefore, staff should try to ascertain if a new service user has an Advance Decision. Where the existence of an Advance Decision is/becomes known then the following steps must be taken: Consider any evidence that at the time of making the Advance Decision the person would have lacked capacity, and immediately advise the service user's GP/consultant of concerns and of the available evidence; 13 P a g e

14 Ensure all staff, in particular medical staff, are made aware of the Advance Decision s existence See below for guidance on storing Advance Decisions. Check the validity of the Advance Decision with the service user or where this is not possible consult the individuals identified in the statement i.e. named persons, witnesses. However a statement or Advance Decision is not invalid just because it has not been possible to check with the individuals identified; and Declare any conscientious objections to carrying out the instructions of the Advance Decision and arrange for an alternative worker as necessary Emergency treatment must not be delayed in order to look for the Advance Decision, if there is no clear indication that one exists. If it is clear that a person has made an Advance Decision that is likely to be relevant, healthcare professionals should assess its validity and applicability as soon as possible. If doubt arises as to the existence of an Advance Decision the matter may be referred to the courts for a decision. Professionals may be legally liable if they disregard the terms of an Advance Decision, or if it is known that the Advance Decision exists and is valid and applicable to the treatment proposed. However under the Mental Capacity Act 2005, if there are any significant doubts about the validity of an Advanced Decision then the professional will be obliged to treat the person under best interests until clarification is obtained. They must make clear notes about why they have not followed an advance decision which they consider to be invalid or not applicable Withdrawal of Advance Decisions An Advance Decision may be withdrawn by the service user at any time when they have capacity. The withdrawal of an Advance Decision does not need to be in writing, including in the case of advance refusals of life sustaining treatment - i.e. a verbal withdrawal will be sufficient. See below for guidance on documenting the withdrawal of an Advance Decision Reviewing/Updating Advance Decisions Service users who make an Advance Decision should be advised to regularly review and update it. See below for guidance on updating an Advance Decision on a service user s care record. Advance Decisions made a long time before the proposed treatments are not automatically invalid. However, this may raise doubts about the extent to which it remains valid and applicable Advance Decision - Doubt or Disagreement In the event that there is Doubt or Disagreement about the validity or applicability of an Advance Decision all staff have a responsibility to discuss with their professional lead (i.e. Social Work Lead Practitioner, Nurse Consultant, Clinical Director) who will if appropriate refer to the relevant Medical Director or Service Director. However, if the matter remains unclear, legal advice should be sought with a possible view to seeking clarification as to the validity or applicability of the Advance Decision from the Court of Protection. This should be requested via the Head of Corporate Affairs Storage of an Advance Decision If a staff member is either given an Advance Decision by a service user, or involved in supporting them to write one, they need to ensure that it is available in a place where it is easy to find on Insight (or whichever record keeping system is being used) For services that use Insight, Advance Decisions should be uploaded as documents to a service user s care record. This could be either in the form of a Word document or a scanned document (where this is needed because it has been created by the service user or they have signed it, for example) This document must have a clear title in the form Advance Decision of month year 14 P a g e

15 An Insight warning should be placed on the service users care record stating see Advance Decision of month year. If other recording systems used have a warning or highlighting system this should be utilised. People working with the service user should regularly check whether they still wish their Advance Decision to be on their file (this could be done as part of the Care Programme Approach or other care coordination processes) If a service user wishes an Advance Decision to be withdrawn, superseded or amended, then the staff member becoming aware of this should make a request for a change to Insight (via the form available on the Intranet) to have the title of the document changed to WITHDRAWN Advance Decision of month year. The Insight warning should be appropriately updated If it is some time since an Advance Decision was put in place, it would be good practice to upload a new version to Insight with a new date on (requesting that the old version be marked WITHDRAWN) as per the previous bullet point. This will help to ensure that, should it need to be used, workers will see that the person has made the Advance Decision at a more recent time. 7. Dissemination, Storage and Archiving A copy of the policy will be placed on the SHSC intranet within seven days of ratification and the previous version removed by Corporate Governance team. An will be sent to all SHSC employees informing them of the revised policy. Managers are responsible for ensuring the hard copies of the previous versions are removed from any policy/procedure manual or files stored locally. A copy of the policy will also be issued to the employment agencies with which the SHSC recruits agency workers. The Corporate Governance team will hold archives of previous version(s). 8. Training and other resource implications As a Trust policy, the Trust will ensure that there is an annual programme of learning events on Advance Decisions and Advance Statements delivered. 15 P a g e

16 9. Audit, monitoring and review Monitoring Compliance Template Minimum Process for Requirement Monitoring Directorates to be assured that policy is being followed in their service Audit: application of policy and training compliance Responsible Individual/ group/committee Service/Clinical Directors Timescale/ Frequency of Monitoring Annual Review of Results process (e.g. who does this?) MCA/DoLS Steering Group Responsible Individual/group/ committee for action plan development MCA/DoLS Steering Group Responsible Individual/group/ committee for action plan monitoring and implementation Executive Directors Group 10. Implementation plan Action / Task Responsible Person Deadline Progress update New policy to be uploaded onto the Intranet and Director of Corporate Trust website. Governance A communication will be issued to all staff via the Communication Digest immediately following publication. Director of Corporate Governance Within 5 working days of issue Managers are responsible for ensuring the hard copies of the previous versions are removed from any policy/procedure manual or files stored locally. SHSC Managers A communication will be sent to Education, Training and Development to review training provision. Director of Corporate Governance Within 5 working days of issue 16 P a g e

17 11. Links to other policies, standards and legislation (associated documents) This policy links specifically to the: Capacity to Consent to Care and Treatment Policy Mental Health Act 12. Contact details Title Name Phone Service Director (on behalf Anita winter 0114 of the MCA/DoLS Steering Group) Clinical Psychologist Zara Clarke References Mental Capacity Act 2005 Mental Capacity Act Code of Practice Mental Health Act 1983 [as amended by the Mental Health Act 2007] Human Rights Act P a g e

18 Appendix A Version Control and Amendment Log Version No. Type of Change Date Description of change(s) 1.0 May 2009 Policy out of date and requires review and update Updated during consultation 1.06 Reformatted for new policy document template V2 May 2016 June September 2016 October 2016 Review / ratification / issue November 2016 Review of current policy commissioned by EDG. Amendments made during consultation, prior to ratification. Re-formatted for new policy document template. Appendices updated. Finalised and issued. 18 P a g e

19 Appendix B Dissemination Record Version Date on website (intranet and internet) Date of all SHSC staff V2 Nov 2016 Nov 2016 via Communications Digest Any other promotion/ dissemination (include dates) 19 P a g e

20 Equality Impact Assessment Process for Policies Developed Under the Policy on Policies Stage 1 Complete draft policy Appendix C Stage One Equality Impact Assessment Form Stage 2 Relevance - Is the policy potentially relevant to equality i.e. will this policy potentially impact on staff, patients or the public? If NO No further action required please sign and date the following statement. If YES proceed to stage 3 This policy does not impact on staff, patients or the public (insert name and date) Stage 3 Policy Screening - Public authorities are legally required to have due regard to eliminating discrimination, advancing equal opportunity and fostering good relations, in relation to people who share certain protected characteristics and those that do not. The following table should be used to consider this and inform changes to the policy (indicate yes/no/ don t know and note reasons). Please see the SHSC Guidance on equality impact assessment for examples and detailed advice this can be found at AGE DISABILITY GENDER REASSIGNMENT PREGNANCY AND MATERNITY RACE RELIGION OR BELIEF Does any aspect of this policy actually or potentially discriminate against this group? Can equality of opportunity for this group be improved through this policy or changes to this policy? Can this policy be amended so that it works to enhance relations between people in this group and people not in this group? No specific impact identified. No further action identified. Due consideration given in developing policy, particularly in relation to the Mental Health Act 1983 Code of Practice, 2015 and the Mental Capacity Act, 2015 No specific impact identified. No further action identified. Due consideration given in developing policy, particularly in relation to the Mental Health Act 1983 Code of Practice, 2015 and the Mental Capacity Act, 2015 No specific impact identified. No further action identified. Due consideration given in developing policy, particularly in relation to the Mental Health Act 1983 Code of Practice, 2015 and the Mental Capacity Act, 2015 No specific impact identified. No further action identified. Due consideration given in developing policy, particularly in relation to the Mental Health Act 1983 Code of Practice, 2015 and the Mental Capacity Act, 2015 No specific impact identified. No further action identified. Due consideration given in developing policy, particularly in relation to the Mental Health Act 1983 Code of Practice, 2015 and the Mental Capacity Act, 2015 No specific impact identified. No further action identified. Due consideration given in developing policy, particularly in relation to the Mental Health Act 1983 Code of Practice, 2015 and 20 P a g e

21 SEX SEXUAL ORIENTATION the Mental Capacity Act, 2015 No specific impact identified. No further action identified. Due consideration given in developing policy, particularly in relation to the Mental Health Act 1983 Code of Practice, 2015 and the Mental Capacity Act, 2015 No specific impact identified. No further action identified. Due consideration given in developing policy, particularly in relation to the Mental Health Act 1983 Code of Practice, 2015 and the Mental Capacity Act, 2015 Stage 4 Policy Revision - Make amendments to the policy or identify any remedial action required (action should be noted in the policy implementation plan section) Please delete as appropriate: Policy Amended / Action Identified / no changes made. Impact Assessment Completed by (insert name and date) Anita Winter, Service Director (on behalf of the MCA/DoLS Steering Group (10 October 2016) 21 P a g e

22 Appendix D - Human Rights Act Assessment Form and Flowchart You need to be confident that no aspect of this policy breaches a persons Human Rights. You can assume that if a policy is directly based on a law or national policy it will not therefore breach Human Rights. If the policy or any procedures in the policy, are based on a local decision which impact on individuals, then you will need to make sure their human rights are not breached. To do this, you will need to refer to the more detailed guidance that is available on the SHSC web site (relevant sections numbers are referenced in grey boxes on diagram) and work through the flow chart on the next page. 1. Is your policy based on and in line with the current law (including case law) or policy? X Yes. No further action needed. No. Work through the flow diagram over the page and then answer questions 2 and 3 below. 2. On completion of flow diagram is further action needed? X No, no further action needed. Yes, go to question 3 3. Complete the table below to provide details of the actions required Action required By what date Responsible Person 22 P a g e

23 Human Rights Assessment Flow Chart Complete text answers in boxes and highlight your path through the flowchart by filling the YES/NO boxes red (do this by clicking on the YES/NO text boxes and then from the Format menu on the toolbar, choose Format Text Box and choose red from the Fill colour option). Once the flowchart is completed, return to the previous page to complete the Human Rights Act Assessment Form. 1.1 What is the policy/decision title? What is the objective of the policy/decision? Who will be affected by the policy/decision?.. 1 Will the policy/decision engage anyone s Convention rights? YES Will the policy/decision result in the restriction of a right? 2.2 YES 2.1 NO NO Flowchart exit There is no need to continue with this checklist. However, o Be alert to any possibility that your policy may discriminate against anyone in the exercise of a Convention right o Legal advice may still be necessary if in any doubt, contact your lawyer o Things may change, and you may need to reassess the situation Is the right an absolute right? 3.1 YES NO 4 The right is a qualified right Is the right a limited right? YES 3.2 Will the right be limited only to the extent set out in the relevant Article of the Convention? 3.3 NO YES 1) Is there a legal basis for the restriction? AND 2) Does the restriction have a legitimate aim? AND 3) Is the restriction necessary in a democratic society? AND 4) Are you sure you are not using a sledgehammer to crack a nut? YES NO Policy/decision is likely to be human rights compliant BUT Policy/decision is not likely to be human rights compliant please contact the Head of Patient Experience, Inclusion and Diversity. Get legal advice Regardless of the answers to these questions, once human rights are being interfered with in a restrictive manner you should obtain legal advice. You should always seek legal advice if your policy is likely to discriminate against anyone in the exercise of a convention right. Access to legal advice MUST be authorised by the relevant Executive Director or Associate Director for policies (this will usually be the Chief Nurse). For further advice on access to legal advice, please contact the Complaints and Litigation Lead. 23 P a g e

24 Appendix E Development, consultation and Verification Process Anita Winter, Service Director, wrote the policy with support from Zara Clarke (Clinical Psychologist). The policy was sent to the Mental Capacity Act/Deprivation of Liberty Safeguards Steering Group for consultation. A range of senior clinicians from across the Trust have contributed to the formulation of the policy. SHSC Nurse Leaders Eva Rix advised on safeguarding. The draft policy was verified by the Mental Capacity Act/Deprivation of Liberty Safeguards Steering Group following a total review and re-write on 5 October 2016, prior to being sent for ratification by the Executive Directors Group. 24 P a g e

25 Appendix F Policies Checklist Please use this as a checklist for policy completion. The style and format of policies should follow the Policy Document Template which can be downloaded on the intranet. 1. Cover sheet All policies must have a cover sheet which includes: The Trust name and logo The title of the policy (in large font size as detailed in the template) Executive or Associate Director lead for the policy The policy author and lead The implementation lead (to receive feedback on the implementation) Date of initial draft policy Date of consultation Date of verification Date of ratification Date of issue Ratifying body Date for review Target audience Document type Document status Keywords Policy version and advice on availability and storage 2. Contents page 3. Flowchart 4. Introduction 5. Scope 6. Definitions 7. Purpose 8. Duties 9. Process 10. Dissemination, storage and archiving (control) 11. Training and other resource implications 12. Audit, monitoring and review This section should describe how the implementation and impact of the policy will be monitored and audited and when it will be reviewed. It should include timescales and frequency of audits. It must include the monitoring template as shown in the policy template (example below). 25 P a g e