Mental Capacity Act Residential Accommodation Training Set

Transcription

1 Mental Capacity Act 2005 Residential Accommodation Training Set

2 DH INFORMATION READER BOX Policy HR/Workforce Management Planning Clinical Document purpose Gateway reference 8082 Title Author Estates Performance IM & T Finance Partnership Working For Information Mental Capacity Act 2005: Residential Accommodation Training Set DH Publication date May 2007 Target audience Circulation list PCT CEs, NHS Trust CEs, Care Trust CEs, Foundation Trust CEs, Local Authority CEs Description Cross reference Superseded documents Action required Timing Contact details One of five sets of training materials to support the implementation of the Mental Capacity Act 2005 N/A N/A N/A N/A IMCA@dh.gsi.gov.uk For recipient s use

3 Mental Capacity Act 2005 Residential Accommodation Training Set May 2007

4 Authors University of Central Lancashire Nicky Stanley Christina Lyons Social Care Workforce Research Unit, King s College London Jill Manthorpe Joan Rapaport Phillip Rapaport Trafford Law Centre Michelle Carrahar Catherine Grimshaw Simone Voss Independent consultant Linda Spencer Acknowledgements The authors wish to thank the following people who contributed to these training materials: Tony Beresford, Andy Bilson, James Blewett, Debbie Brenner, Mark Brookes, Robert Brown, Marian Bullivant, Jeanne Carlin, Wesley Dowdridge, David Ellis, Debbie Ford, Bill Fulford, Paul Gantley, Marie Girdham, Paul Greenwood, Ann Hartill, Steve Iliffe, Carl Jackson, Jan James, Deborah Klee, Andrew Mantell, Nicola Maskrey, Jasbir Mungur, Lesley Peplar, Liz Price, Vicki Raymond, Dorothy Runnicles, Dennis South, Helen Spandler, Brian Waddelow, John Woolham, Linda Wright and Hester Youle. The quotations from users and carers were spoken by the Shoestring Theatre Company.

5 Contents Foreword 1 1 Introduction Who is this training for? Using this training Introducing the Mental Capacity Act A person-centred approach Which staff will be affected by the Mental Capacity Act? 7 2 Defining mental capacity 8 3 Using the Mental Capacity Act in practice Admission to residential accommodation When is an assessment of capacity required? 10 4 Assessing capacity How is capacity assessed? Who assesses capacity? Legal tests under the common law and other legislation Excluded decisions Assessing capacity in practice How do I assess capacity? Record keeping 20 5 Planning care and support for individuals Best interests decisions Who can be the decision maker? 24 6 Delivering day-to-day care, treatment and support Acts in connection with care and treatment Delivering day-to-day care and support 28 7 Independent mental capacity advocates 32 8 Restraint Limitations on restraint When might restraint be necessary? The Bournewood Case 38 iii

6 9 Planning for future care and treatment Advance decisions to refuse treatment When are advance decisions valid and applicable? Lasting Powers of Attorney (LPA) Who can be an attorney? Limitations on LPAs Enduring Powers of Attorney Safeguards New criminal offences of ill-treatment or wilful neglect The Court of Protection What is a court-appointed deputy? Resolving disputes The Public Guardian Court of Protection visitors Raising concerns and complaints Sharing information Research Using the Mental Capacity Act to improve practice 57 Glossary 58 Useful sources and references 60 Certificate of Completed Learning Hours 62 iv

7 Foreword I am pleased to introduce these excellent new training materials on the Mental Capacity Act 2005 (MCA). They have been developed by the University of Central Lancashire (UCLAN) and the Social Care Workforce Research Unit at King s College London, and provide in-depth information and guidance on what the new MCA will mean to people like you working in health and social care. The MCA will apply to everyone who works in health and social care and is involved in the care, treatment or support of people who lack capacity to make their own decisions or to consent to the treatment or care that is proposed. The MCA puts the individual who lacks capacity at the heart of decision making and places a strong emphasis on supporting and enabling the individual to make their own decisions or involving them as far as possible in the decision-making process. You will all have a vital role to play in the implementation of the MCA. Your role will begin in April when some parts of the MCA come into force including the new Independent Mental Capacity Advocate (IMCA) service and the new criminal offences of ill-treatment or wilful neglect of a person who lacks capacity. The MCA Code of Practice, recently passed by Parliament, provides the foundation of the training materials. It will be useful to become familiar with the Code, which explains how the MCA will work on a day-to-day basis. As you will know, because you work in a professional or paid capacity with people who lack capacity, you have a duty of regard to the Code. The training materials complement the Code and are a wide-ranging and comprehensive package, which, together with the Code, will ensure that you have the relevant knowledge and skills to meet the demands of the new MCA. The new MCA will play an important part in safeguarding and protecting those people in society who lack capacity to do so for themselves. Working in health and social care, you will be playing a vital part in supporting and caring for some of the most vulnerable people in society, and I am confident that you will rise to the challenge posed by the new MCA. 1

8 The training is interactive and I know that you will be engaged and stimulated by the material. I hope that the training will leave you with a full understanding of your new role in relation to the MCA, and, most importantly, of your responsibilities to those in your care who lack capacity. Rt Hon Rosie Winterton MP Minister of State (Health Services) 2

9 1 Introduction 1.1 Who is this training for? This training is for staff working with the Mental Capacity Act 2005 (MCA) in residential accommodation in England and Wales. It is designed to be used as the basis for training sessions for staff working with people whose capacity to make particular decisions may be uncertain or questionable, and for training those working with people who wish to plan ahead or make their decisions in advance. It can be used in three main ways: as the basis for staff training sessions for individual learning and continuing professional development as a resource that staff can consult in the course of their day-to-day practice. This set of materials is designed to cover the knowledge needed by those working in residential accommodation. The training focuses on how the MCA will be used in practice. You may also be interested in the other training sets. These are: a core set a mental health services set an acute hospitals set a community and primary care set. For information about how the MCA affects children and young people aged 16 and 17, see the Core Training Set. This training set represents five learning hours for continuing professional development purposes and there is a certificate included in the back of this pack which you can complete and forward to your professional training organisation or employer when you have worked through these materials. 1.2 Using this training The case studies and exercises are included here for discussion and to show how the MCA and the Code of Practice will work in practice. They are not provided as examples of what must be done, as each assessment of capacity and best interests-led decision will be determined by individual circumstances. 3

10 This training is focused on the MCA and the Code of Practice. The assessment of capacity and the process of making decisions are described in the MCA and the Code of Practice. These can be found at: If you are using the PDF version of this training set you can move around it and to other documents mentioned in the text, such as the Code of Practice, by clicking on the underlined chapter headings or references. Where the PDF features recordings of the service users and carers quotations you can click on these to hear their words spoken. In some places this training set employs language and phrases used in the legislation. References to the relevant sections are included in the text. You can find an accessible glossary of relevant terms at the end of this training set. This training has been developed in collaboration with service users, carers and practitioners who have provided some of the case examples we have used. We are grateful for their comments and have used some of their experiences and views to develop the examples and illustrations in this training set. The quotations included here express their opinions of the MCA. These are their views and are not a guide as to how the Act will be applied in specific situations. 1.3 Introducing the Mental Capacity Act The MCA is being implemented in two distinct phases in In April 2007: the new Independent Mental Capacity Advocate (IMCA) service became operational in England only the new criminal offences of ill-treatment or wilful neglect came into force in England and Wales Sections 1 4 of the Act (the principles, assessing capacity and determining best interests) which are essential to how IMCAs do their work also came into force but only in situations where an IMCA is involved, and for the purposes of the criminal offences. Sections 1 4 of the Act will not apply in any other situations until October 2007 the Code of Practice for the Act was issued and should be followed by those who must have regard to it in situations where an IMCA is involved or in relation to the new criminal offences. 4

11 In October 2007: all other parts of the Act come into force, including the IMCA service in Wales the Code of Practice will have statutory force for all of the Act, not solely in relation to where an IMCA is involved and/or the criminal offences. The MCA is different from the Mental Health Act Some people may be affected by both Acts. See the training set on mental health for further details. The MCA has been developed to co-ordinate and to simplify the law about the care and treatment of people who lack capacity to make a particular decision. It is designed to protect the rights of individuals and to empower vulnerable people. The Act introduces new powers and new bodies to protect individuals and helps to clarify what is expected of staff. In the past, it was not unusual for some people, for example people with severe learning disabilities, severe or enduring mental health needs, or dementia, to have decisions made for them. This resulted in numerous injustices, such as mass institutionalisation, loss of individuality, damage to self-esteem, involuntary sterilisation, loss of control of their own finances and loss of the right to vote. 1.4 A person-centred approach The underlying philosophy of the MCA is to ensure that individuals who lack capacity are the focus of any decisions made, or actions taken, on their behalf. This means that staff should adopt an individual approach which centres around the interests of the person who lacks capacity, not the views or convenience of those caring for and supporting that person. Staff should make every effort to ensure that vulnerable people are helped to make as many decisions as possible for themselves. Service users and carers consulted during the development of these training materials were very positive about the potential role of the MCA in protecting the rights of people who lack capacity. They expressed the hope that the MCA will contribute to the empowerment and protection of vulnerable people. In talking to us, they have emphasised how service users who need help with day-to-day care, often of an intimate nature, such as bathing and toileting, can feel powerless and frightened. They often don t know how to change things or complain. 5

12 Jenny, a mental health service user, said: It s about empowerment and protection of vulnerable people, or basically people who are in situations where they become vulnerable and don t necessarily have the capacity or might not have the capacity to make informed decisions themselves. I think they are very good principles. Eileen, an older woman who has been undergoing medical treatment in hospital, commented: I think it should be very helpful to have an explicit framework to empower and protect people who may not be able to make decisions because of incapacity. Service users were very interested in the role of the IMCAs (see Part 7 of these materials). Many felt that this type of advocacy should be available to a broader group of people. They noted that family and friends are not always best placed to act in their best interests or to challenge the recommendations or decisions made by professional staff. Jenny commented: The most helpful are the IMCAs, because they are trained, because they are knowledgeable, and because they are independent. Service users and carers were also very positive about advance decisions (see Part 9 of these materials). Karen, a woman with severe disabilities who works as a disability awareness trainer, says: I think everybody should have an advance decision regardless of impairment or even if you ve not got an impairment. And I think it s really very important for people to talk about it and I think a very important part of this is that people start to talk about it; because people don t. Isabel, a retired woman in her 80s who has been a service user and carer, says: Advance decisions, well I m seriously thinking about a living will myself... I think my family want me to make known my wishes and perhaps the Act will advance decision-making in that way so that people can take more responsibility. Service users and carers commented that the attitudes and practices of many staff will have to change and better communication between service providers and service users will be essential. 6

13 Marcus, father of two adult children with mental health problems, says: I am afraid to make a complaint as I may be labelled as a busybody or lacking understanding of staff pressures. Martin has learning disabilities. He describes the qualities that he thinks staff need to work with the MCA: To be patient and understanding, to be able to look at the person who s asking the question and not the person that s supporting them. 1.5 Which staff will be affected by the Mental Capacity Act? The MCA applies to all people making decisions for or acting in connection with those who may lack capacity to make particular decisions. The staff who are legally required to have regard to the Code of Practice when acting in relation to a person who lacks, or who may lack, capacity are as follows: people working in a professional capacity, e.g. doctors, nurses, social workers, dentists, psychologists and psychotherapists people who are being paid to provide care or support, e.g. care assistants, home care workers, support workers, staff working in supported housing, prison officers and paramedics anyone who is a deputy appointed by the Court of Protection anyone acting as an IMCA anyone carrying out research involving people who cannot make a decision about taking part. Exercise: How do you currently manage issues of mental capacity in your work, for example, when a resident needs hospital treatment but may not understand what is happening? At this point, you have: learnt why the MCA was introduced identified which staff will be affected by the MCA been alerted to the importance of the Code of Practice. 7

14 2 Defining mental capacity Mental capacity within the context of the Mental Capacity Act 2005 (MCA) is the ability to make a decision. A person lacks capacity if he or she is unable to make a particular decision because of an impairment or disturbance of the mind or brain, whether temporary or permanent. This may affect people with dementia, with brain injury, with a learning disability or with mental health needs, and those who are unconscious or barely conscious whether due to an accident, being under anaesthetic or as a result of other conditions. A range of factors such as a stroke can affect a person s capacity to make a decision, and physical conditions such as an intimidating or unfamiliar environment can also do so. Trauma, loss and physical health problems can also alter a person s capacity to make a decision. Most people with mental health problems will have capacity to make decisions most of the time. Do not assume that a person with a mental health problem lacks capacity. Information about the MCA and mental health problems, including the Mental Health Act 1983, is available in the Mental Health Training Set. The five core principles of the MCA (Mental Capacity Act, Section 1; Code of Practice, Chapter 2) should guide all decisions about mental capacity. BOX 1 The five core principles 1. A person must be assumed to have capacity unless it is established that they lack capacity. 2. A person is not to be treated as unable to make a decision unless all practicable (doable) steps to help them to do so have been taken without success. 3. A person is not to be treated as unable to make a decision merely because they make an unwise decision. 4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests. 5. Before the act is done, or the decision is 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. 8

15 Remember, capacity can vary over time and according to what decisions need to be made. BOX 2 Example Jacob is a man with multiple impairments both cognitive and physical. He lives in a care home. He has no understanding of language. However he does communicate using emotional responses such as eye contact, laughter, grimacing, turning his head away, and not eating. Jacob s capacity to make decisions varies according to the decision to be made. For example, he likes to go to the park on sunny days but dislikes going out when it is windy or raining. He has made this clear to his care workers by the way that he behaves. He is also very clear about what food he likes and dislikes. It is important that this is respected. There are some things that he is not interested in making decisions about, for example when to wash and what to wear, and these decisions are made for him by the care workers. A lack of capacity cannot be established by a person s age, appearance, condition or any aspect of their behaviour that might lead to unjustified assumptions about capacity. In Jacob s case, he can make some decisions but not others. Staff meeting him for the first time must not assume that his limited communication means that he is unable to make any decisions for himself. Ability to make decisions is also time specific: this means that people s ability to make a decision has to be considered at the relevant time, not in relation to any future event. Exercise: Think of some service users you have been involved with in your work who might lack capacity at the moment. Does their capacity to make decisions vary over time; does it vary according to the decision they are making? At this point, you have: learnt how mental capacity is defined been introduced to the five core principles of the MCA discovered that capacity is time and decision specific. 9

16 3 Using the Mental Capacity Act in practice 3.1 Admission to residential accommodation Assessing whether someone has the ability to make decisions should be part of the initial assessment before a person first moves into any residential accommodation. Any preliminary assessment forms, application forms or standardised tools should include questions that consider matters of capacity. Any staff referring the person to your service should ensure that you are informed if he or she has difficulties in making decisions. For example, when discussing a place in a group home for a disabled person, the care manager should tell the unit manager if the person might not be able to understand or sign the contract. This is also a good time to check whether any advance decisions have been made about treatment (see Part 9 of these materials Planning for future care and treatment). 3.2 When is an assessment of capacity required? The core principles of the Mental Capacity Act 2005 (MCA) state clearly that staff should always start from an assumption of capacity. However, doubts about a person s capacity may arise because of: their behaviour their circumstances concerns raised by someone else. BOX 3 Example Kathryn, who is 83, has severe pain in her legs that restricts her mobility. She has been living in a care home for the last four years and until recently has coped well. She has no family in the UK. Over the last few weeks, Sarah, her key worker, has noticed that Kathryn has started to look very dishevelled. She has also become noticeably confused and has begun getting up and walking around the corridors at night. She has stumbled on a number of occasions, although she has not hurt herself. Concerned about Kathryn, Sarah tells her manager about the situation. 10

17 Exercise: Write down some triggers that might make you think that a person for whom you are providing care may lack ability to make a decision. At this point, you have: identified when an assessment of capacity is required learnt that you should always start from an assumption of capacity. 11

18 4 Assessing capacity 4.1 How is capacity assessed? (Code of Practice, ) Assessment of capacity needs to be integrated into your usual assessment procedures, care planning, reviews and monitoring. For some staff, it will become part of the single assessment process or the unified assessment; for others, it may be part of reviews and monitoring. There are two questions to be asked if you are assessing a person s capacity or ability to make a decision: BOX 4 The two-stage test of capacity (Code of Practice, ) 1. Is there an impairment of, or disturbance in, the functioning of the person s mind or brain? 2. If so, is the impairment or disturbance sufficient that the person lacks the capacity to make that particular decision? This two-stage test must be used and your records should show it has been used. It is important to note that an unwise decision made by the person does not in itself indicate a lack of capacity. All professional staff involved in an assessment should keep adequate records that explain the grounds on which a person is found to have, or lack, capacity to make a specific decision. The presumption is always that a person has capacity to make a decision. Deciding that a person lacks capacity is a serious step. A formal, clear and recorded process should be followed where an important decision is to be made. Day-to-day assessments of capacity may be relatively informal but should still be written down if a new decision about capacity in a particular situation is being made. 12

19 Any assessment of a person s capacity must consider the following factors: whether they are able to understand the information whether they are able to retain the information related to the decision to be made whether they are able to use or assess the information while considering the decision. The person has to be able to do all three to make a decision, and they have to have the ability to communicate that decision. This could include alternative forms of communication, such as blinking an eye or squeezing a hand, when verbal communication is not possible. If the person being assessed is unable to do any one of the above, they are unable to make the decision for themselves. 4.2 Who assesses capacity? Anyone caring for or supporting a person who may lack capacity could be involved in assessing capacity. This will include family members and carers as well as nursing and residential care staff, housing, health, social care and probation staff. In some circumstances, where there are no family or carers, an independent mental capacity advocate (IMCA) will be assigned. See Part 7 of these materials. The more significant or complex the decision, the greater the number of people likely to be involved. Expert testing by doctors or psychologists will be required in some cases but, even when used, may not be the only form of assessment. Who is involved depends on individual circumstances. 13

20 BOX 5 Example Jim is a 60-year-old man who is currently living in a bail and probation hostel having served a prison sentence for theft. Jim has a history of alcohol addiction which has caused him to have both physical problems (one of his lower legs has been amputated) and psychological problems (such as short-term and occasional memory problems). Since leaving prison he has begun drinking heavily and often has difficulty understanding what is going on, even when he is sober. He has a history of getting into debt and borrowing money from vulnerable people, some of whom act violently. Jim is short of cash because he often buys drinks for the other residents as well as himself. He decides that he will pay his rent in the future, when his luck changes. Staff at the hostel are aware that Jim feels that he needs to buy the friendship of other residents and have concerns that his inability to manage his money will result in him being evicted from the hostel when he is clearly unable to pay his rent. If the issue is not addressed he may have to go to a care home an option that Jim hates because he sees it as restrictive. Staff have also heard several residents bragging that it is easy to get money from Jim when he is drunk. Jim s probation officer and outreach community mental health nurse are contacted. They also share the concerns of the hostel staff. Exercise: You are Jim s key worker in the hostel what do you do? How would you assess Jim s capacity to manage his finances? Who would you involve in the assessment? Where would you record your decision? It is important to assess whether Jim has the capacity or ability to manage his own finances and to make the decision that he will not pay his rent. Remember, there are two questions to be asked if you are assessing a person s capacity. Check these again in Box 4 at the beginning of this part if you have forgotten them. 14

21 BOX 5 (continued) The key worker decides that Jim is at great risk of homelessness, as he is likely to refuse a care home place, if offered, and will sleep rough. This will exacerbate his physical and mental health problems and leave him even more vulnerable. The key worker decides to include Jim s probation officer in a discussion with Jim about the possibility of Jim s weekly pension and benefits being paid in a different way. This will allow them to manage his money, and get the rent paid. At this time Jim appears to be making unwise decisions, rather than decisions for which he clearly lacks capacity, and if so, the MCA cannot be used to take over his ability to manage his finances for himself. 4.3 Legal tests under the common law and other legislation Although the Mental Capacity Act 2005 (MCA) brings together much of the existing common law and establishes the way in which capacity must be assessed, some decisions will continue to be dealt with under common law, that is, law established through decisions made by courts in individual cases. Where a legal decision needs to be made, staff must be fully aware of those decisions that are covered by the MCA and those which are covered by common law and other legislation. There are several tests of capacity that have been produced following judgments in court cases: these are known as common law tests. They cover capacity to: make a will make a gift but attorneys can also make gifts (see Part 9.5 of these materials) enter into litigation (take part in legal cases) enter into a contract enter into marriage. Other professionals will need to be involved in administering these tests of capacity under common law. For example, it is advisable that legal advice is sought when people who may lack capacity are making a will, and registrars will continue to decide if somebody has the necessary capacity to understand the marriage vows. Other Acts, for example, the Juries Act 1974, have been amended to include the MCA s definition of lacking capacity. A lack of capacity to serve on a jury disqualifies somebody from jury service. 15

22 For more information on common law tests and their use see the BMA and Law Society book Assessment of Mental Capacity Guidance for Doctors and Lawyers, second edition. Please check that you use the latest edition as the law develops and decisions are made about individual cases, some of the guidance will change. 4.4 Excluded decisions Other decisions excluded from the MCA include: consent to sexual relations consent to divorce or dissolution of a civil partnership consent to a child being placed for adoption or to making an adoption order voting. Other people can never make these decisions on behalf of another person, regardless of the person s capacity to make these decisions themselves. BOX 6 Example Doris lives in a care home and wishes to get married to a fellow resident, Ted. Her family are appalled at the idea and insist that the home does something to prevent this. Exercise: You are the manager: what do you do? Discussion: It is not the responsibility of the home manager to prevent the marriage. The right to get married is a basic right which is enshrined in law through the Human Rights Act Although the family may disapprove, as long as Doris and Ted understand what is involved in marriage, i.e. that it is a voluntary union for life with rights (e.g. to fidelity) and responsibilities (e.g. to financially maintain each other), they are free to marry. Neither person must be put under any pressure to enter into or not enter into the marriage. If the relatives continue to be unhappy with the situation, the manager should advise them to contact a solicitor. 16

23 4.5 Assessing capacity in practice You must always bear in mind the five core principles and ensure that no one is treated as unable to make a decision unless all practical steps to help them have been exhausted and shown not to work. Steps to be taken (Code of Practice, ) Provide all relevant information but do not burden the person with more detail than required. Include information on the consequences of making, or not making, the decision. Provide similar information on any alternative options. Consult with family and other people who know the person well on the best way to communicate, e.g. by using pictures or signing. Check if there is someone who is good at communicating with the person involved. Be aware of any cultural, ethnic or religious factors which may have a bearing on the individual. Consider whether an advocate (in Part 7 of these materials you will see that an IMCA is only likely to be involved in a limited number of cases, so we mean a general advocacy service here) or someone else could assist, e.g. a member of a religious or community group to which the person belongs. Make the person feel at ease by selecting an environment that suits them. Make sure it is quiet and unlikely to be interrupted. Arrange to visit relevant locations; for example, if the decision is about a hospital or shortbreak stay, visit the place with them. See if a relative or friend can be with them to support them. Try to choose the best time for the person. Try to ensure that the effects of any medication or treatment are considered. For example, if any medication makes a person drowsy, see them before they take it, or after the effect has worn off. Take it easy. Make one decision at a time, don t rush and be prepared to try more than once. 17

24 BOX 7 Example Mrs Aziz is a 73-year-old woman who lives in a care home. English is not her first language. She has a heart condition which requires regular monitoring at the local hospital. Mrs Aziz is usually happy to attend hospital appointments with her grandson and a member of staff from the home. However, one afternoon she is adamant that she will not go and she will not tell her grandson why. She becomes increasingly agitated and distressed. Staff and her grandson are concerned, as she appears to be confused. You are the home matron, you are anxious about the fact that an extra member of staff is on duty to escort Mrs Aziz to her appointment and that a taxi is waiting for them but you are also aware that Mrs Aziz is very distressed. It seems unlikely that she will attend without a lot of persuasion. Exercise: What do you do? Do you think you should assess Mrs Aziz s capacity? Discussion: There are a number of issues that should be considered: 1) At this time, Mrs Aziz may not have the capacity to decide whether she should attend her hospital appointment. However, it may not be necessary for her to attend the appointment today so, if possible, it should be rebooked for a time by when it may have been possible to assess calmly why Mrs Aziz is so distressed. It may be inconvenient for the home that additional staff will again have to be on duty so that Mrs Aziz can attend the appointment, but the MCA specifically cautions staff not to make decisions that are based on their convenience. 2) If it is urgent that Mrs Aziz attends the appointment, then it may be necessary to assess her capacity; however, Mrs Aziz is clearly distressed, so it is unlikely that she will be at her best level of functioning (remember the five core principles and the good practice points outlined above). 18

25 BOX 7 (continued) 3) There may be a simple explanation as to why Mrs Aziz has become confused and refuses to attend the appointment. For example, she may have a urinary tract infection which is causing her to be incontinent and giving rise to mild confusion. This may be why she is unwilling to explain what the problem is to her grandson as she may not feel comfortable explaining this to him. Her English may not be good enough to explain to staff. If Mrs Aziz is not happy to have another family member translate, consider whether translation/ interpretation services or an independent advocate or community representative could assist. 4.6 How do I assess capacity? Anyone who is being assessed for capacity or ability to make a decision should be tested at their best level of functioning for the decision to be taken. This will be achieved by means similar to those listed above. Be aware that circumstances may change and an assessment of capacity may have to be repeated or reviewed, over time and for different decisions. The following list shows the range of areas to be considered. As always, the range of areas to be assessed will be specific to the individual and their circumstances and the two-stage test of capacity must be applied. Do you remember what this is (see Box 4)? Factors to be considered in assessing for capacity General intellectual ability Memory Attention and concentration Reasoning Information processing Verbal comprehension and expression Cultural influences Social context Ability to communicate. 19

26 Not all of these factors need to be considered in every assessment of capacity although, for some formal assessments, a number of these factors will be relevant. A reasonable belief in a person s lack of capacity to make a particular decision should be supported by judgements about some of these factors. Each assessment of capacity will vary according to the type of decision and the individual circumstances. The more complex or serious the decision, the greater the level of capacity required. The questions in Box 8 must be addressed. BOX 8 Questions to consider (Code of Practice, ) Does the person have a general understanding of what decision they need to make and why they need to make it? Do they understand the consequences of making, or not making, the decision, or of deciding one way or another? Are they able to understand the information relevant to the decision? Can they weigh up the relative importance of the information? Can they use and retain the information as part of the decisionmaking process? Can they communicate their decision? It is important that all staff involved in assessing a person s capacity should understand the nature and effect of the decision and any actions relating to the assessment. Exercise: In relation to day-to-day care, how do you currently assess capacity? Does your home or organisation have guidelines on assessing capacity? How might these change because of the MCA? 4.7 Record keeping All professional staff that is, nursing home managers, social workers, care managers, nurses, doctors, and so on involved in the care, treatment and support of a person who may lack capacity should keep a record of long-term or significant decisions made about capacity. Once a decision about capacity has been made this should be subject to review because people s capacity frequently changes. 20

27 The record should be made in the place where you regularly record details about a service user, resident or patient, such as a care plan, file or case notes. The record should show: what the decision was why the decision was made how the decision was made who was involved? what information was used? Such records will be a way to show that staff have acted in accordance with the MCA and the Code of Practice. BOX 9 Examples 1. Bethany Jones wants to buy a lottery ticket so she can join in the fun of the draw with other residents on Saturday evening when watching TV. She has severe learning disabilities and does not understand money. Her care worker writes the following in the case notes: Bethany got very excited about the lottery last week and seems to want her own ticket, I have bought her a ticket and she is holding on to it. I will tell her if the ticket wins or not when we watch the TV tonight. 2. Trevor Freeman, who has severe autism, has been troubled by accumulations of earwax and has been putting sharp objects in his ear. His support worker thinks that he needs some advice and asks the local pharmacist to suggest some treatment. The pharmacist knows Trevor and suggests some eardrops to soften the wax might work. The support worker puts the following in the case notes: Just before lunch I helped Trevor with the drops recommended by the pharmacist. I told Trevor what I was doing but he made no comment. He was still while I put the drops in and they did not seem to bother him. 21

28 BOX 9 (continued) 3. After a stay at an activity centre, staff at the group home find that Mandy, who is 20 and has brain damage, is keen to smoke. She asks the staff to buy her cigarettes and lighters. Her parents are upset and say that Mandy cannot understand the health risks. The key worker puts the following in Mandy s file: Mandy s parents have expressed great concern about her smoking, and Mandy has been told about the risks. However, she is adamant that she has a right to smoke. I have explained to her the areas of the home where this is possible and that she can spend her money on [cigarettes] but will not be able to pay for other things as a result. Exercise: What do you think of these notes? Would you have written anything differently? At this point, you have: been introduced to the two-stage test of capacity identified what needs to be considered when assessing capacity discovered when a legal practitioner should be consulted about assessing capacity noted the importance of recording decisions about assessing capacity. 22

29 5 Planning care and support for individuals 5.1 Best interests decisions Making decisions for people who have been assessed as lacking capacity will become an important part of care planning or support planning as a result of the Mental Capacity Act 2005 (MCA). All decisions made on behalf of people who lack capacity need to be made in their best interests. The MCA does not define best interests but identifies a range of factors that must be considered when determining the best interests of individuals who have been assessed as lacking capacity to make a particular decision or consent to acts of care or treatment. There are a number of steps involved in deciding what a person s best interests are. BOX 10 Determining best interests the statutory (legal) checklist Avoid making assumptions about someone s best interests merely on the basis of the person s age, appearance, condition or behaviour. Consider a person s own wishes, feelings, beliefs and values and any written statements made by the person when they had capacity. Take account of the views of family and informal carers. Can the decision be put off until the person regains capacity? Involve the person in the decision-making process. Demonstrate that you have carefully assessed any conflicting evidence or views. Provide clear, objective reasons as to why you are acting in the person s best interests. Take account of the views of any independent mental capacity advocate (see Part 7 of these materials). Take the less restrictive alternative or intervention. 23

30 BOX 11 Example Siobhan, who has brain damage, lives in a group home with three other people. The staff are taking some of the service users sailing on the local reservoir where there is a centre which provides lessons for people with special needs. Siobhan s mother, Mary, is extremely anxious about her daughter participating in such an activity but is also keen for Siobhan to have fun with her friends. Siobhan is a little nervous about the trip, but she is also very excited. Having discussed the trip with Siobhan, the staff think that she should be encouraged to participate in group activities and that if she decides on the day that she wants to sail then she should be encouraged to join in. They arrange to meet with Mary to discuss her concerns and agree that Patrick, Siobhan s brother, of whom she is very fond, will accompany her on the trip. He will sail with her if she wants him to or sit with her while the others sail if she decides that she does not want to join in. In this case, staff have considered Siobhan s own wishes and taken account of her family s views before making a best interests decision. Isabel, who has been a service user and a carer, commented: I think that our risk-averse society has got to be really careful not to be too risk-averse, which is where I think we ve moved to, which relates to people s freedoms. 5.2 Who can be the decision maker? The person who makes decisions on behalf of someone who lacks capacity is described in the Code of Practice as the decision maker. A decision maker for someone who lacks capacity will vary depending on the individual s circumstance and the type of decision involved. Staff working in residential settings and family members will be decision makers for many dayto-day situations. They also may act as decision makers for longer-term decisions regarding the care of an individual who lacks capacity. Medical practitioners may be decision makers for treatment but are unlikely to be decision makers for day-to-day social care. 24

31 Exercise: Write down three instances when you might have recently been a decision maker for service users or residents. There are safeguards in the MCA for staff making decisions on behalf of people who lack capacity (Code of Practice, ). Staff have statutory or legal protection for best interests decisions providing that they can demonstrate they: have taken reasonable steps to assess capacity to make a decision reasonably believe that the person lacks capacity to make that decision reasonably believe that the decision is in the person s best interests. However, staff will not be protected if they act negligently. BOX 12 Example Following a discussion with the home manager, staff make a best interests decision on behalf of Esther, a care home resident with severe dementia. Esther has asked the staff to buy a Christmas present for her daughter; however, she cannot remember what her daughter likes. The staff use Esther s personal allowance to buy the present for her daughter, as they did in the past when Esther was able to ask them to buy her daughter her favourite soap. They keep the receipt, give it to the home administrator and write down what they have done in Esther s file. As they have sufficient information to explain why and what they did, staff will be protected if anyone asks why they bought such an expensive soap. Anyone making a decision in the best interests of a person who lacks capacity is required by the MCA not to make assumptions that cannot be clearly justified. This means not letting any prejudices affect the decision. Staff are also required to involve the person in the decision-making process and must encourage and enable their participation wherever possible. At this point, you have: learnt the key elements of consultation and engagement when establishing a person s best interests clarified the role of the decision maker identified that staff are protected when they make best interests decisions as long as certain conditions are met. 25

32 6 Delivering day-to-day care, treatment and support 6.1 Acts in connection with care and treatment (Mental Capacity Act, Section 5; Code of Practice, Chapter 6) Staff do not always realise when they are delivering care and treatment in the best interests of a person who lacks capacity to consent to that care or treatment. Many of the acts of care they perform are day-to-day ones that staff are already undertaking on behalf of others. Exercise: In relation to day-to-day activities, what care are you already giving on behalf of people who lack the capacity to consent to that care? How might you change what you do because of the Mental Capacity Act 2005 (MCA)? Acts in connection with personal care may include: assistance with physical care, e.g. washing, dressing, toileting, changing a catheter and colostomy care help with eating and drinking help with travelling shopping paying bills household maintenance those relating to community care services. Acts in connection with healthcare and treatment may include: administering medication diabetes injections diagnostic examinations and tests medical and dental treatment nursing care emergency procedures. Exercise: You must also consider whether you could provide the care or treatment in a less restrictive way for example, could a person be given a shower that they can manage themselves rather than a bath for which they will need to be supervised? The three conditions described in Part 5.2 of these materials must be met. What are these conditions? 26

33 BOX 13 Example Viktor is a 79-year-old Ukrainian man who has severe chronic obstructive pulmonary disease which makes it difficult for him to breathe. He is also a little confused at times. Viktor lives in a care home. Every winter the local GP visits the home to give the residents flu immunisation. When the GP tells Viktor that he has come to give him his flu jab, Victor refuses to have the injection. The GP explains that it is particularly important for him to have the flu jab because of his breathing problems but Viktor is adamant that he does not want the vaccine. Exercise: What should Viktor s key worker do? Discussion: Both the key worker and the GP might be concerned that Viktor will be particularly vulnerable to flu without the vaccine because of his respiratory problems but they are also aware that Viktor has the right under the MCA to make an unwise decision. They are unsure about whether he has the capacity to make the decision. The MCA is clear that no one should be treated as unable to make a decision unless all practical steps to help them have been exhausted. Exercise: What are your thoughts on this example? Have you come across a similar situation in your work? If so, how did you decide what was in the person s best interests? In Viktor s case, the timing of the two-stage test will be particularly important because of the fluctuations in his confusion. 27

34 BOX 13 (continued) Remember, any assessment of a person s capacity must consider the following factors: their ability to understand and retain information related to the decision to be made their ability to use or assess the information while considering the decision their ability to communicate the decision by any means. Involving a Ukrainian speaker or interpreter may be helpful. However, if Viktor is assessed as being unable to do any of the above, then he is unable to make the decision himself. The GP will then have to decide what is in Viktor s best interests. 6.2 Delivering day-to-day care and support For care assistants or support staff making day-to-day decisions on a regular basis, no formal assessment procedures or records are required. For example, in the case of Mrs Ali, a 72 year old resident of a care home who has dementia and needs a care assistant to help her with breakfast, to get washed and dressed, to go to the toilet and many other tasks, frequent recording of each decision is not required. However, her care plan should show that her capacity to make decisions about these activities has been assessed at some point and that such decisions are being made in her best interests, and continually reviewed until such time as she gains the capacity to refuse or consent herself. If a decision is challenged, staff must be able to explain why they had a reasonable belief in the person s lack of capacity to make the decision in question. It is therefore advisable to make notes of new decisions in a person s file or case notes. This applies even to those day-to-day decisions which might not previously have been recognised as decisions about capacity. 28

35 The example in Box 14 highlights some of the practical issues staff might face in clarifying the law and in respecting the rights of individual service users while maintaining their duty of care to others. It may be helpful for course participants to have some of the information relating to this case prior to a training day with a view to them coming to discuss the issues with other participants. If you are reading these training materials on your own, then we suggest that you work though the case, pausing to respond to the points at each section of these materials. BOX 14 Example Wayne is a 26-year-old man living in supported accommodation in the community. He suffered a severe brain injury in a road traffic accident five years ago. After surgery, he underwent a long period of hospital rehabilitation before moving to adapted accommodation with two other men, with 24-hour staff support. He attends college one day a week and participates in other community activities on a regular basis. Wayne is a wheelchair user, who gets on well with people. He has problems understanding some situations. In the course of his compensation case, Wayne was assessed as not being capable of managing his financial affairs, which were then placed under the (then) Court of Protection and managed by receivers (his parents) who will, from October 2007, become his deputies. Wayne arranges for a prostitute to visit him at the supported house. Staff are initially unaware that she is anything other than a friend visiting. However, after one such visit, they realise that Wayne is paying her for sex. Staff want to know: Wayne s legal position what the implications are for staff and for the other residents whether Wayne is fully aware of any risks. A member of staff says: This place is turning into a brothel. 29

36 30 BOX 14 (continued) However: 1. A brothel is legally defined as a place: where two or more individuals are working together to provide sexual services, which clearly does not describe this situation. It is not illegal to pay for sexual services, and therefore Wayne, who has organised this for himself and paid for the service, has not committed any illegal act. 2. Furthermore, as the staff have not been involved in any of the arrangements, they have therefore not been involved in procuring sexual services. Despite this, some staff are still concerned about their role and their duty of care in particular in relation to issues of mental capacity: Wayne s financial vulnerability Wayne is considered at risk of financial exploitation. He has been considered not capable of managing his finances and staff say he has difficulty understanding the value of money and budgeting. Wayne s sexual health Staff are unsure whether Wayne will take responsibility for his own sexual health, and whether he has explained to the prostitute his particular special needs as a wheelchair user with limited mobility and some sensory impairment. The safety of other residents and staff Further staff anxieties are raised when on another occasion (also arranged by Wayne without discussion with staff) a second woman arrives unaware that Wayne is a wheelchair user and refuses to continue. As a result of this, concern was raised about the possible impact on the other residents and staff if there is confrontation or conflict arising from Wayne s arrangements. The woman concerned was verbally abusive to Wayne and made comments about wasted time and loss of income. How to manage the needs and concerns of the other residents When the nature of Wayne s visitors becomes apparent, the other residents, neither of whom is capable of independently organising something similar, request staff help to organise similar arrangements. Assessment: In discussion with Wayne, it becomes apparent that his views on sexual health are somewhat naïve (according to the staff) but that he is

37 BOX 14 (continued) capable of thinking through these issues with some staff support. The discussions with Wayne include an acknowledgement of his right to organise such visits but emphasise his responsibility to those with whom he shares his accommodation and his need to recognise the duty of care imposed on staff by his residence in the group home. The staff ask Wayne to consider discussing the matter with his parents as they have queried why he has not participated in some routine activities and staff have told his parents that he has chosen to spend his money on other things. Routine discussions with his parents about his expenditure form part of a pre-existing contract between Wayne, his parents and staff. Following these discussions, an agreement is proposed whereby Wayne will talk with his key worker in advance when he wishes to organise a visit by a prostitute, and that it might be timed to coincide with an outing or other activity which involves the other residents being away from the building. The advance notice also gave staff an opportunity to remind Wayne about the importance of safe sex and the dangers of putting himself in a financially vulnerable position. Critical reflection Although there is no question in this case as to Wayne s capacity to consent to sexual relationships, the issues the case raises are important in terms of the staff s understanding of their position and their obligations not just to Wayne but also to other residents. Exercise: What do you think about this example? What would happen in your service setting? Source: Summary and development of an example from the British Psychological Society (2006), Assessment of Capacity in Adults: Interim Guidance for Psychologists, pp At this point, you have: identified instances of care and treatment where staff are permitted to make best interests decisions explored some of the practical issues that staff face in clarifying the law and respecting the rights of individual service users while maintaining their duty of care. 31

38 7 Independent mental capacity advocates (Mental Capacity Act, Sections 35 41; Code of Practice, Chapter 10) The Mental Capacity Act 2005 (MCA) introduces a duty on the NHS and local authorities to involve an independent mental capacity advocate (IMCA) in certain decisions. This ensures that, when a person who lacks capacity to make a decision has no one who can speak for them and serious medical treatment or a move into accommodation arranged by the local authority or NHS body (following an assessment under the NHS and Community Care Act 1990) is being considered, an IMCA is instructed. The IMCA has a specific role to play in supporting and representing a person who lacks capacity to make the decision in question. They are only able to act for people whose care or treatment is arranged by a local authority or the NHS. They have the right to information about an individual, so they can see relevant health and social care records. The duties of an IMCA are to: support the person who lacks capacity and represent their views and interests to the decision maker obtain and evaluate information, both through interviewing the person and through examining relevant records and documents obtain the views of professionals and paid workers providing care or treatment for the person who lacks capacity identify alternative courses of action obtain a further medical opinion, if required prepare a report (that the decision maker must consider). In England, regulations have extended the role of IMCAs so they may also be asked to represent the person lacking capacity where there is an allegation of or evidence of abuse or neglect to or by a person who lacks capacity. In adult protection cases, an IMCA can be appointed even though the person has family or friends. Similarly, the regulations also allow IMCAs to contribute to reviews for people who have been in accommodation arranged by the local authority or NHS body or who have been in hospital for more than 12 weeks and who have nobody else to represent them. The local authority or NHS body may instruct an IMCA to represent the person lacking capacity in either adult protection cases or accommodation reviews if they consider that it would be of particular benefit to the person. 32

39 The National Assembly for Wales has also extended the role of IMCAs in Wales to cover accommodation reviews and adult protection cases. BOX 15 IMCAs always represent the interests of: those who have been assessed as lacking capacity to make a major decision about serious medical treatment or a longer-term accommodation move, if they have no one else to speak for them other than paid carers, and if their care or accommodation is arranged by their local authority or NHS. IMCAs may represent the interests of: those who have been placed in accommodation by the NHS or local authority, and whose accommodation arrangements are being reviewed, and/or those who have been or are alleged to have been abused or neglected or where a person lacking capacity has been alleged or proven to be an abuser (even if they have friends or family). An IMCA is not a decision maker for the person who lacks capacity. They are there to support and represent that person and to ensure that decision making for people who lack capacity is done appropriately and in accordance with the MCA. In England, the local authority area where a person currently is (e.g. in hospital) is responsible for making the IMCA service available. In Wales, local health boards have this responsibility. If the decision is about treatment, the relevant NHS body must instruct an IMCA, if it is about a move it will be either the local authority or the NHS body. 33

40 To contact an IMCA, look for details on the IMCA website. BOX 16 Example Tony is 62 and has severe learning disabilities. He lives in supported accommodation funded by the local authority. For some time Tony has been unhappy in his current home, and so when a place becomes available in another house in another local authority, Tony s care manager suggests Tony go and visit the house to see if he would like to move there. Tony s sister has recently died. There is now no one to take an interest in Tony s welfare outside the professional circle. Exercise: You work with Tony as his key worker. You are concerned that there is no one except the care manager to see that his interests are being protected. Why is Tony entitled to an IMCA? Which local authority should provide this; the one where he now is or the one he may be moving to? Find out how to contact your local IMCA service. At this point, you have: noted that there is a duty to instruct an IMCA in certain circumstances identified who an IMCA can represent noted that an IMCA is not a decision maker confirmed that the local authority or (in Wales) local health board where the person is currently living is responsible for commissioning the IMCA service identified who instructs an IMCA noted that the IMCA s report must be considered. 34

41 8 Restraint (Mental Capacity Act, Sections 5 6; Code of Practice, ) 8.1 Limitations on restraint In circumstances where restraint needs to be used, staff restraining a person who lacks capacity will be protected from liability (for example, criminal charges) if certain conditions are met. There are specific rules on the use of restraint, whether verbal or physical, and the restriction or deprivation of liberty, as outlined in the Code of Practice, and and Department of Health and Welsh Assembly Government guidelines ( and childrenfirst/603793/framework-rpi-e.pdf?lang=en). If restraint is used, staff must reasonably believe that the person lacks capacity to consent to the act in question, that it needs to be done in their best interests and that restraint is necessary to protect the person from harm. It must also be a proportionate or reasonable response to the likelihood of the person suffering harm and the seriousness of that harm. Restraint can include physical restraint, restricting the person s freedom of movement and verbal warnings, but cannot extend to depriving someone of their liberty (the difference between restraint and deprivation of liberty is discussed in Part 8.3 of these materials). Restraint may also be used under common law in circumstances where there is a risk that the person lacking capacity may harm someone else. BOX 17 Conditions that may justify restraint The person taking action must reasonably believe that it is necessary to perform an act which involves restraint in order to prevent harm to the person lacking capacity. Restraint must be a proportionate response (i.e. be only as serious and go on only as long as necessary) to the likelihood of the person suffering harm and to the potential seriousness of that harm. 35

42 8.2 When might restraint be necessary? Section 5 of the Mental Capacity Act 2005 (MCA), which provides protection from liability in certain circumstances as discussed above, will not protect staff from liability for any action they take that conflicts with a decision made by someone acting under a Lasting Power of Attorney or a deputy appointed by the Court of Protection whose authority extends to such decisions: this includes the use of restraint. For more information, see Chapter 6 of the Code of Practice. BOX 18 Example Sid is a 52-year-old man with brain damage. He has severe constipation, which is causing him discomfort. The GP prescribes an enema, but when the staff at the care home where he lives try to administer it, Sid becomes extremely agitated and distressed. Although staff try to explain to Sid why he needs the enema, Sid does not appear to understand and refuses to lie down for the procedure. Exercise: You are the nurse who is supposed to administer the enema. What do you do? Discussion: All other ways of relieving Sid s constipation need to be considered. If this is not possible and Sid still refuses, staff will need to assess whether Sid has the capacity to consent to this treatment. If it is determined that he does not, then staff need to be clear that administering the enema is in Sid s best interests and any restraint used is proportionate to Sid s problem. If challenged, staff will need to be able to demonstrate that to the best of their knowledge there was no other way of resolving Sid s problem. 36

43 BOX 19 Example Cynthia is a 78-year-old woman who has dementia. For the last three weeks she has stayed in Mill House care home where she is having a short break. One morning she puts on her coat and tells the staff that she is going home because she misses her husband. She has not seen him since her first day at Mill House when staff told him not to visit again because Cynthia had become very distressed when he left. Cynthia tries to leave but finds that she cannot open the door as it appears to be locked and no one will open it for her. She becomes agitated and tearful. Staff distract Cynthia by switching on her favourite TV programme and very soon Cynthia has forgotten the incident. Exercise: You are the senior care worker in charge for the day. What do you do? Discussion: Cynthia may not have the capacity to decide whether she can leave the home, but the decision to physically stop her leaving by locking the door and refusing to open it may amount to a deprivation of her liberty, as may be the earlier decision to stop her husband from visiting if these restrictions are ongoing. Moreover Cynthia s situation may contravene the European Court s decision in relation to the Bournewood Case (see Part 8.3 below). If it is still appropriate for Cynthia to remain at Mill House, the home manager should consider changing her decision and allow Cynthia s husband to visit her. If this still causes Cynthia distress, staff will need to work with her to reduce the distress when his visit ends. Specialist advice may be helpful here (e.g. from the local dementia team, the clinical psychology service and so on). Exercise: Think about your work and the situations where you have used restraint. How would you justify your actions? If you were unsure about using restraint with or restricting an individual in a particular situation, what would you do? 37

44 8.3 The Bournewood Case This is a legal case that tested the boundary between appropriate restraint or restriction and the loss of human rights under Article 5 of the European Convention on Human Rights the right to liberty. The government is seeking to amend the MCA to take into account the issues raised by this case. The patient was in hospital and lacked the capacity to say whether he would stay in hospital or accept treatment. He was not detained under the MHA. The European Court of Human Rights determined that the key factor in the present case [is] that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements. The Court found that the concrete situation was that the applicant was under continuous supervision and control and was not free to leave. The distinction between restraint and the loss of liberty, which took this case into the European Court, is one of degree and intensity, not one of nature and substance. Any deprivation of liberty can only be lawful if accompanied by safeguards similar to those surrounding detention under the MHA. The Department of Health (December 2004) and the Welsh Assembly Government (January 2005) have issued guidance and a briefing sheet which should already be included in service providers policies. At the time of writing, the Government is taking legislation through Parliament to establish a new set of safeguards in the MCA for people who need to be deprived of their liberty in their best interests and who cannot make the necessary decisions for themselves. At this point, you have: confirmed that restraint may only be used in limited circumstances learnt that the use of restraint must always be recorded been alerted to the Bournewood Case and the need to seek advice in such circumstances. 38

45 9 Planning for future care and treatment (Mental Capacity Act, Sections 24 27; Code of Practice, Chapter 9) 9.1 Advance decisions to refuse treatment The Mental Capacity Act (MCA) requires that advance decisions are made in a particular way. It is essential that professionals involved in the care of a person who lacks capacity understand the difference between an advance decision to refuse treatment and other expressions of an individual s wishes and preferences. An advance decision to refuse treatment enables an adult to make treatment decisions in the event of their losing their capacity at some time in the future. Such a decision properly made is as valid as a contemporaneous decision (made at the time) and so it must be followed, even if it would result in the person s death. If an advance decision involves refusing life-sustaining treatment, it has to be put in writing, signed and witnessed but, otherwise, advance decisions can be verbal or if written neither signed nor witnessed. Even in the absence of an advance decision, people s views and wishes, whether written down or not, should be used to assist in planning appropriate care for the individual and making decisions in their best interests. Such statements of wishes and feelings are important, particularly if they are written down, but are not legally binding in the same way as advance decisions. 39

46 BOX 20 Example Miriam, aged 82, lives in a nursing home. She is physically disabled and uses a wheelchair. She has become increasingly deaf in recent years and, in order to improve her hearing, she has her ears syringed at the local health centre. She finds this procedure painful and distressing and tells the care assistant who accompanies her there that she never wants to have this done again. The care assistant makes a note of this in Miriam s file when they return to the home. Three years later, Miriam is increasingly confused, and she is also very deaf. The GP suggests that she has her ears syringed again and considers that Miriam lacks capacity to consent to this treatment. However, the nursing home manager notes from Miriam s file that she has said in the past that she does not want this treatment ever again. This is an advance decision that must be followed as Miriam had the capacity to make the advance decision at the time it was made. Jenny, a mental health service user, says: In terms of advance decisions, where someone s anticipating that at some point they re going to lack capacity, I think that s a really good thing. Because you often get situations where people verbally express what their wishes are to relatives, or carers, or people who have an emotional attachment and then, if they re in a situation where they lack capacity that person s not necessarily able to make a decision in the best interest for them because they are too emotionally involved. And so if someone can put something in writing beforehand and make sure that that is followed then that s essentially a really good idea, it s a really good thing. 40

47 9.2 When are advance decisions valid and applicable? (Code of Practice 9.40) An advance decision is valid when: it is made when the person has capacity the person making it has not withdrawn it it is not overridden by a later Lasting Power of Attorney (LPA) that relates to the treatment specified in the advance decision the person has acted in a way that is consistent with the advance decision. An advance decision is applicable when: the person who made it does not have the capacity to consent to or refuse the treatment in question it refers specifically to the treatment in question the circumstances the refusal of treatment refers to are present. An advance decision to refuse life-sustaining treatment is applicable when: it is in writing, including being written on the person s behalf or recorded in their medical notes it is signed by the person making it (or on their behalf at their direction if they are unable to sign) in the presence of a witness who has also signed it it is clearly stated, either in the advance decision or in a separate statement (which must be signed and witnessed), that the advance decision is to apply to the specified treatment, even if life is at risk. But an advance decision is not applicable if there are reasonable grounds for believing that circumstances now exist which the person did not anticipate at the time they made the advance decision and which would have affected their decision had they been able to anticipate them (e.g. new treatment), or if they have behaved in a way that raises doubts about or contradicts their advance decision. Staff must be able to recognise when an advance decision to refuse treatment is both valid and applicable. A best interests decision to provide treatment cannot override a valid and applicable advance decision that refuses that treatment. Protection from liability will not apply if a valid and applicable advance decision is ignored. 41

48 The decision of an attorney acting under a registered LPA will override an advance decision if the LPA has been made after the decision and gives the attorney the right to consent to or refuse the treatment specified. There are special rules for people who are detained under the Mental Health Act 1983 in some circumstances their refusal of treatment for a mental disorder may be overridden (see the training set for staff working in mental health settings for further discussion of this). Advance decisions may not be valid if the individual made the decision while they had capacity and if they then did something clearly inconsistent with the advance decision. BOX 21 Example Marvin is a 78-year-old man with cancer of the larynx. He has lived in a care home for the last three years. When his cancer was diagnosed he made an advance decision indicating that he did not wish to have chemotherapy or radiotherapy at any time. Staff at the home and Marvin s GP are aware that he has made an advance decision. When Marvin s condition deteriorates and he becomes unconscious, staff contact his sister who is his next of kin, and she insists that an oncologist sees Marvin so that he can be assessed for chemotherapy or radiotherapy. Exercise: What do you do? Discussion: It is important to establish that the advance decision is both valid and applicable. If the staff are sure that the conditions for establishing the validity of Marvin s advance decision have been met (see above) then his wishes must be respected. Staff will need to explain this to Marvin s sister and, of course, make arrangements for palliative care with the local services. 42

49 As part of the empowering of residents and patients, staff need to develop means of promoting, implementing and recording this form of advance planning. For example, many Mental Health Trusts and voluntary organisations are developing guidance on the use of advance decisions and expressions of wishes. Exercise: Think about your own health care in the future. Are there aspects of treatment you might not want to receive? How would you describe the circumstances under which you would want treatment to be withheld? 9.3 Lasting Powers of Attorney (LPA) (Mental Capacity Act, Sections 9 14; Code of Practice, Chapter 7) What is Lasting Power of Attorney? Under an LPA an individual can, while they still have capacity, appoint another person to make decisions on their behalf about financial, welfare or healthcare matters. The person making the LPA chooses who will be their attorney. They can allow the attorney to make all decisions or they can choose which decisions they can make. LPAs replace Enduring Powers of Attorney (EPAs) (made under the Enduring Power of Attorney Act 1985). Guidance on LPAs can be found at: or (from October 2007). When acting under an LPA, an attorney has the authority to make decisions on behalf of the person who made it, if they can no longer make these decisions for themselves. In these cases, an attorney is not there simply to be consulted (although they should still be consulted if appropriate where other decisions are being made). Attorneys must act in accordance with the Code of Practice. In order to be valid, an LPA must be registered with the Public Guardian and on the prescribed form. There are two different forms of LPA to cover a range of circumstances. These are: personal welfare (including healthcare decisions) property and affairs (financial matters). A personal welfare LPA will only take effect when a person has lost capacity to make these sorts of decisions and the LPA has to be registered with the Office of the Public Guardian. If it is not registered, it cannot be used. An LPA concerning financial matters will take effect immediately it is registered unless 43

50 the donor specifies that it should not take effect until they lose capacity to make these decisions. The person making the LPA is the donor who donates or hands over responsibility to make decisions under specified circumstances. The person appointed to make the decisions under the LPA is the donee, also known as the attorney. One attorney may hold a number of LPAs for different people; for example, a daughter can have an LPA for each of her parents. A bank official can have LPAs for a number of clients. A person can choose one or a number of people to hold his or her LPA, such as a partner and adult children. Donors can authorise their attorney(s) to act in relation to all matters concerning their property and financial affairs or they can list specific matters where they wish the attorney(s) to have power to act. So Jack, a 45-year-old man with multiple sclerosis who lives in supported accommodation, has appointed his brother as a financial attorney under an LPA to manage his financial investments, while Jack retains control of his day-to-day expenses with support from the staff. It is important to remember that an LPA may describe treatment that the individual doesn t want but it cannot give attorneys the power to demand or insist upon a specific treatment that healthcare professionals do not believe to be clinically necessary or appropriate. 9.4 Who can be an attorney? An attorney could be a family member, friend, carer or professional, such as a lawyer. The Code of Practice advises that health and social care staff should not act as attorneys for people they are supporting unless they are also the close relatives of the person who lacks capacity. Frances has an eating disorder and has been admitted to hospital for compulsory treatment over the past years: I think the MCA could be used by people with eating disorders to prompt them to choose an LPA, and to facilitate discussion about their wishes should they be deemed to lack capacity to make decisions in their best interests in the future. 44

51 Attorneys must be over 18 years old and must not be bankrupt (for property and affairs LPAs only). Most attorneys will be named individuals. However, for property and affairs LPAs, the attorney could be a trust or part of a bank. BOX 22 Example Mrs Singh has been a resident of Ivy House, a care home, for the last five years. The manager of the home thinks that she should move from the residential side of the home to the nursing part of the home as her disabilities have increased and her needs can no longer be met by the residential care section. Funding is available for the transfer but Mrs Singh does not appear to understand what the manager is telling her. Sometime ago, Mrs Singh asked her daughter Sanita to act as her personal welfare attorney to make decisions about personal welfare and healthcare (this was registered with the Office of the Public Guardian on the prescribed form). When the manager talks to Sanita about the situation, Sanita advises the manager that she can make the decision on her mother s behalf because she is an attorney for her mother. Exercise: You are the manager of the home, what should you do? Discussion: It is important to establish the legality of the LPA. To be legally binding it needs to have been registered at the Office of Public Guardian and the contents need to be applicable to the decision being made. Providing these requirements are met and that her mother lacks capacity (you need to ensure that the two-stage test applies), Sanita can agree to or refuse the transfer. Exercise: How will you record this? Who needs to know? 45

52 9.5 Limitations on LPAs An attorney can only make certain gifts from the property and estate of the owner, for example, to friends and relatives, including the attorney, on customary occasions such as birthdays, Christmas, Diwali or any religious festival the person lacking capacity would be likely to celebrate. Any customary gift or charitable donation must be reasonable in the circumstances and take into account the size of the estate. Limitations may also be specified in the LPA. 9.6 Enduring Powers of Attorney (Mental Capacity Act, Schedule 4; Code of Practice, Chapter 7) Enduring Powers of Attorney (EPAs) were established by the Enduring Powers of Attorney Act They allow the appointed attorney to manage property and financial affairs on behalf of the donor. At the onset of the donor s incapacity, the attorney must register the EPA with the Office of the Public Guardian in order for their authorisation under the EPA to continue. No new EPAs can be set up after the MCA is implemented, but existing EPAs will continue to be valid whether registered or not (Code of Practice, Chapter 7). Donors can choose to replace their existing EPA with an LPA if they still have capacity. At this point, you have: learnt when an advance decision is valid learnt when an LPA is valid identified who can be an attorney discovered that LPAs can be used for a variety of decisions but can t be used to demand specific care or treatment confirmed that existing EPAs will continue to be valid. 46

53 10 Safeguards (Code of Practice, Chapter 14) This part of the Code of Practice describes the way in which staff and people acting with formal powers under the Mental Capacity Act 2005 (MCA) (i.e. attorneys and deputies), need to work with agencies responsible for the protection of adults who lack capacity to make decisions. All health and care settings, such as a care home, should have their own formal protocols and procedures for the protection of vulnerable adults (adult protection or adult safeguarding policy). The MCA needs to be incorporated into them. Staff need to know what safeguards are available for those affected by the MCA so that they can inform service users and carers about opportunities to raise complaints and resolve disputes. They also need to feel confident that their concerns will be addressed New criminal offences of ill-treatment or wilful neglect The MCA introduces the new criminal offences of ill-treatment or wilful neglect (Mental Capacity Act, Section 44; Code of Practice, Chapter 14). BOX 23 It is now a criminal offence if the following ill-treat or wilfully neglect anyone in their care: people who have the care of a person who lacks capacity an attorney under a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA) (see Part 9.3 of these materials) a deputy appointed by the court (see Part 10.3 of these materials). Allegations of offences may be made to the police or the Office of the Public Guardian. They can also be dealt with under adult protection procedures (via adult services in social services departments). The penalty for these criminal offences may be a fine and/or a sentence of imprisonment for up to five years. Isabel said: I was pleased to see that the Act introduces a new criminal offence of illtreatment or neglect of a person. I m so pleased to see that within the Act because we ve found it very difficult to pinpoint how some retribution can take place and this makes it a criminal offence. It s a step forward. 47

54 BOX 24 Example Marjorie is 83 and has dementia; she lives in a care home. A new member of the night staff assists Marjorie at bedtime. She is concerned that Marjorie has bruises on her upper arm and that her incontinence pads do not appear to have been changed during the day. The other staff give no good reason, and the care plan notes are sketchy and appear to be incomplete. Marjorie is frightened and tearful. The care assistant alerts the manager who contacts the police and the local Adult Protection Service and Inspection Unit (Commission for Social Care Inspection or Care Standards Inspectorate in Wales). A joint police investigation with social services is carried out and a member of staff is suspended while the police refer the matter to the Crown Prosecution Service. An independent mental capacity advocate (IMCA) may be instructed in these circumstances even if Marjorie has family and/or friends. Exercise: You are a home manager, what will you tell staff about the new offences? What might be the benefits and disadvantages of telling them? How will you protect the rights of people in your home to refuse care, without leaving yourself open to an allegation of wilful neglect? 10.2 The Court of Protection (Mental Capacity Act, Part 2; Code of Practice, Chapter 8) The Court of Protection is a specialist court with powers to deal with matters affecting adults who may lack capacity to make particular decisions. The Court is able to hear cases at a number of locations in England and Wales. It covers all areas of decision making under the MCA and can determine whether a person has capacity in relation to a particular decision, whether a proposed action would be lawful, whether a particular act or decision is in a person s best interests and the meaning or effect of an LPA in disputed cases. The Court of Protection plans to be an accessible, regional court. It aims to be informal and quick. It takes over the duties of the former Court of Protection and matters regarding healthcare and personal welfare that were previously 48

55 dealt with by the High Court. The Court charges a fee for applications information on fees and forms are available on the Court s website. It is expected that the Court of Protection will only be involved where particularly complex decisions or difficult disputes are involved. Either the Court of Protection or the Family Court may deal with health and welfare decisions concerning 16- and 17-year-olds who lack capacity to make particular decisions (see Part 13 of the Core Training Set of these training materials). The Public Guardian is the registering authority for LPAs and court-appointed deputies (see Part 10.5). The Public Guardian also investigates complaints about how an attorney under an LPA or a deputy is exercising their powers What is a court-appointed deputy? Court-appointed deputies are professionals or people (or a trust corporation in property and affairs cases) appointed by the Court of Protection to make decisions on behalf of an incapacitated adult in their best interests. This would take place, for example, where there is a serious dispute among carers. BOX 25 Example The son and daughter of Mrs Ryan, who has Lewy body dementia, argue fiercely over which care home their mother should move to. Although she lacks the capacity to make this decision herself, she has a significant amount of money and can easily pay the care home fees. Her solicitor acts as attorney in relation to her financial affairs under an earlier registered EPA, but has no power and is unwilling to get involved in this family dispute, which is becoming increasingly bitter. The Court of Protection makes an order in Mrs Ryan s best interests, having taken account of her children s views and decides which care home will best meet her needs. Due to the ongoing dispute over financial matters between Mrs Ryan s children, a deputy is appointed to act on Mrs Ryan s behalf because the solicitor is no longer willing to be involved. 49

56 The appointment of a deputy will be limited in scope and duration. This is to reflect the principle of the less restrictive intervention. A deputy could be a family member, care worker or any other person the Court finds suitable Resolving disputes The Court of Protection will only act in disputes when alternative solutions to resolving them have been considered and tried. This should happen before any application to the Court of Protection. The Court will consider if appropriate alternatives have been pursued when an application is made. The Court determines which applications it will accept. Alternative methods for resolving disputes include the following: Disputes between family members may be dealt with informally or via mediation. Disputes about health, social care or other welfare services may be dealt with by informal or formal complaints processes. Advocacy services may be able to help resolve a dispute. Disputes regarding certain medical treatments ones that are extraordinary or irreversible may go directly to the Court of Protection The Public Guardian The MCA creates a new public office the Public Guardian with a range of functions that contribute to the protection of people who lack capacity. These functions include: keeping a register of Lasting Powers of Attorney and Enduring Powers of Attorney monitoring attorneys receiving reports from attorneys and deputies keeping a register of orders appointing deputies supervising deputies appointed by the Court directing Court of Protection visitors providing reports to the Court dealing with enquiries and complaints about the way deputies or attorneys use their powers working closely with other agencies to prevent abuse. 50

57 Isabel says: I think the new Public Guardian opportunity for complaints is a good one. But I fear it will remain hidden from the people who need to know about it as have many of the complaints systems in the past. And I think that in order to make that part of the Act meaningful, a new think, a rethink will have to take place as to how we inform people at the grass roots, as to how they can access those processes which they find intimidating. Marcus, speaking about the role of the Public Guardian, sees it as: An excellent idea for service users and carers to be offered the opportunity to make complaints; however, this information needs to be made available to users and their carers before admission, and help with understanding the process should be given Court of Protection visitors These are individuals appointed by the Lord Chancellor who provide independent advice to the Court and the Public Guardian. They will have a role in the investigation of allegations of abuse of a person who lacks capacity. Their visits will include checks on the general well-being of a person who lacks capacity. They will also help and support attorneys and deputies. Further information and guidance on their role and how to contact them will be provided by the Office of the Public Guardian as it becomes more established. These details are likely to be included in local adult protection policies and procedures. 51

58 BOX 26 Example Mrs Williams made an LPA some time ago, appointing her nephew, Glyn, as her attorney with a general power to make personal welfare and financial decisions on her behalf. The power has now been registered on the basis that Mrs Williams no longer has the capacity to make many of these decisions herself. However, her niece Anwen is concerned that Glyn is not acting in Mrs Williams best interests. In particular, Anwen suspects that Glyn is using much of Mrs Williams income to pay off his debts. She addresses these concerns to the Public Guardian, who then directs a Court of Protection visitor to visit Mrs Williams and Glyn. The visitor s report provides an assessment of the facts and recommends that the matter be referred to the Court to consider whether the attorneyship should continue. On receipt of the report, the Court makes an order revoking the LPA Raising concerns and complaints The Court of Protection only deals with complaints when all other avenues have been tried. So if a care worker, for example, wants to complain that she has been asked to do something that seems to be against the Act, she can contact the Office of the Public Guardian, she can use whistle-blowing procedures or contact the local adult protection service (via the local authority) or the Commission for Social Care Inspection or the Care Standards Inspectorate in Wales. Other sources of help include telephone advice from the Action on Elder Abuse helpline or Witness: At this point, you have: been alerted to the new criminal offences of ill-treatment or wilful neglect been reminded of the need to refer to local adult protection procedures learnt about the work of court-appointed deputies and noted the roles of the Office of the Public Guardian and of Court of Protection visitors. 52

59 11 Sharing information People making decisions on behalf of people who lack capacity will often need to share personal information about the person lacking capacity. This information is required in order to ensure that decision makers are acting in the best interests of the person lacking capacity. When releasing information, the following must be considered: Is the person asking for the information acting as an agent on behalf of the person who lacks capacity? Is disclosure in the best interests of the person who lacks capacity? What kind of information is being requested? BOX 27 Example Mr Shah is an older man who has dementia. Mr Shah s son is responsible for his care and welfare under a Lasting Power of Attorney (LPA). Mr Shah has lived in a sheltered housing scheme for a number of years and until recently has coped well, but his son has now become concerned about whether sheltered housing is still an appropriate placement, given an apparent recent deterioration in his father s condition. He contacts the scheme s manager and asks for specific information from his father s file in respect of the support provided so that he may make an informed decision in the best interests of his father. However, the scheme manager refuses, saying that he is prevented from disclosing personal information in respect of Mr Shah because of the Data Protection Act. Exercise: What would you have done in these circumstances? Where might you get advice if you were not sure? Discussion: Mr Shah s son is a welfare attorney. Under the LPA he is, legally, his father s agent. The LPA gives him authority to look after his father s welfare. He needs to access specific personal data in order to ensure that proper care is provided to his father. With the power under the LPA, the Data Protection Act 1998 requires the scheme manager to allow Mr Shah s son access to personal data relating to his concerns about whether his father s accommodation is now suitable to his needs. 53

60 Attorneys with an LPA are entitled to any information as if they were the person lacking capacity as long as they are acting within the scope of their authority. This also applies to independent mental capacity advocates (IMCAs) (see Part 7 of these materials). At this point, you have: identified the questions to ask when sharing information noted that attorneys and IMCAs are entitled to information. 54

61 12 Research (Mental Capacity Act, Sections 30 34; Code of Practice, Chapter 11) There are clear rules about involving people in health and social care research studies when they are not able to consent to taking part. A family member or carer (the consultee) should be consulted about any proposed study. People who can be consultees include family members, carers, attorneys and deputies, as long as they are not paid to look after the person in question and their interest in the welfare of the person is not a professional one. If they say that the person who lacks capacity would not have wanted to take part, or to continue to take part, then this means that the research must not go ahead. If there is no such person who can be consulted, the researcher must find someone who is not connected with the research who can fulfil this role instead. Guidance will be available to researchers about how to go about this. Again, if the consultee says that the person would not have wanted to take part or continue to take part, the research must not go ahead. The research has to be approved by the relevant research ethics committee. A researcher must stop the research if at any time they think that one of the MCA s31 requirements is not met (i.e. the research must relate to an impairing condition, have potential to benefit the person lacking capacity or be intended to provide knowledge about the same or a similar condition). This means that the researcher needs to understand the basis on which the research approval is given and ensure not only that the research is approved but that these requirements continue to be met throughout the period of the research. It is good practice for staff to ask to see evidence that the research has received approval. If the person who lacks capacity appears to be unhappy with any of the activities involved in the research, then the research must stop. NB: There are separate rules for clinical trials. BOX 28 Example A local university lecturer is doing a study of continence services and wants to look at the care plans in the files of each resident in a care home for older people, all of whom have very severe dementia. She does not want to talk to residents. She has received approval for this study from the relevant research ethics committee. Exercise: You are the manager of the home. What do you do? 55

62 BOX 28 (continued) Discussion: In this case, the research is not intrusive but the lecturer will have to follow the consent procedures that she has committed herself to. You do not have to let her see any files, but if she has gained the permission of relatives by seeking their permission through another route (such as writing to them and asking you to forward her letters), then their permission will be sufficient. Asking to see the letters giving permission from the research ethics committee, and the relatives, and keeping a copy of them would be advisable. If the research were going to be intrusive, for example if there were going to be DNA sampling for another study, then you would need to ensure that this procedure was undertaken safely and that anyone who appeared to object would be removed from the study. Again, you would want to check that the relevant research ethics committee approval had been granted. At this point, you have: established that research can go ahead if it has approval from a relevant research ethics committee noted that if the individual appears unhappy with any aspects of the research, it must stop confirmed that if a consultee says the research must not go ahead because the person would have objected, then the research cannot proceed. 56

63 13 Using the Mental Capacity Act to improve practice The service users and carers involved in the development of these training materials were generally very positive about the Mental Capacity Act 2005 (MCA). However, they wanted the Act to be fully implemented and were keen that checks and balances are sufficiently strong to protect individuals. Key aims of the MCA are to co-ordinate and simplify a complex area of law. Interviews with service users and carers suggest that the Act could help staff improve their practice. Service users and carers hoped that the Act would encourage staff to acknowledge their residents dignity and rights to make choices. They emphasised that all service users want to be treated with warmth and respect. Marcus, father of two adult children with mental health problems, says: Professionals should not ignore the reality of what is happening to people. It s not about a quick fix; it s about being patient and sympathetic. It s about a relationship too. Never mind if you are at the most vulnerable point of your life like having an illness, it s even worse if you re not treated with dignity and respect and empathy. Karen, who has severe physical disabilities, described the qualities staff need to work with the MCA: They d have to be very patient, be willing to listen, be willing to explore ways to communicate; particularly at that stage when they re trying to make decisions, they want to be sure they re making decisions based on what the person lacking capacity would really want, not what the professional thinks might be easier for a friend, social services or whatever. The introduction of the MCA provides an ideal opportunity for staff to look again at their practice and find new ways of listening to residents and enabling them to make choices and decisions. In conclusion, you have: learnt about the key elements of the MCA reflected on the implications for your own practice listened to the hopes and views of users and carers about the way in which the MCA will improve practice. 57

64 Glossary Advance decision allows an adult with capacity to set out a refusal of specified medical treatment in advance of the time when they might lack the capacity to refuse it at the time it is proposed. If life-sustaining treatment is being refused, the advance decision has to be in writing, signed and witnessed and include a statement saying that it applies even if life is at risk. Attorney the person you choose to manage your assets or make decisions under a Lasting Power of Attorney or Enduring Power of Attorney. Best interests the duty of decision makers to have regard to a wide range of factors when reaching a decision or carrying out an act on behalf of a person who lacks capacity. Capacity the ability to make a decision. Contemporaneous at the same time any person with capacity can refuse treatment at the time it is offered. An advance decision means you have to accept what the person wanted some time ago is what they want now. Court of Protection where there is a dispute or challenge to a decision under the Mental Capacity Act, this Court decides on such matters as whether a person has capacity in relation to a particular decision, whether a proposed act would be lawful and the meaning or effect of a Lasting Power of Attorney or Enduring Power of Attorney. Court-appointed deputy an individual appointed by the Court of Protection to make best interests decisions on behalf of an adult who lacks capacity to make particular decisions. Decision maker someone working in health or social care or a family member or unpaid carer who decides whether to provide care or treatment for someone who cannot consent; or an attorney or deputy who has the legal authority to make best interests decisions on behalf of someone who lacks the capacity to do so. Donor the person who is making a Lasting Power of Attorney to appoint a person to manage their assets or to make personal welfare decisions. Enduring Power of Attorney (EPA) a power of attorney to deal with property and financial affairs established by previous legislation. No new EPAs can be made after the Mental Capacity Act is implemented, but existing EPAs continue to be valid. 58

65 Independent mental capacity advocate (IMCA) has to be instructed when a person who lacks capacity to make specific decisions has no one else who can speak for them. They do not make decisions for people who lack capacity, but support and represent them and ensure that major decisions for people who lack capacity are made appropriately and in accordance with the Mental Capacity Act. Lasting Power of Attorney (LPA) a power under the Mental Capacity Act which allows an individual to appoint another person to act on their behalf in relation to certain decisions regarding their financial, welfare and healthcare matters. Public Guardian this official body registers Lasting Powers of Attorney (LPAs) and court-appointed deputies, and investigates complaints about how an attorney under an LPA or a deputy is exercising their powers. 59

66 Useful sources and references 60 Further information is available in the training sets that accompany this material. Links to more information and reference to the Mental Capacity Act 2005 (MCA) and Code of Practice are included in the text where relevant. The following list includes other articles or books that may be of interest. Department for Constitutional Affairs Department of Health Welsh Assembly Government Range of material including the statutes and an easy read summary to the MCA available on the website: Website: Guidance issued for Wales available on website: health/nhswales/healthservice/mental _health_services/mentalcapacityact/?lang=en Ashton, G., Oates, L., Letts, P. and Terrell, M. (2006) Mental Capacity: The New Law, Bristol: Jordan Publishing Ltd. Bartlett, P. (2005) Blackstone s Guide to the Mental Capacity Act 2005, Oxford: Oxford University Press. British Medical Association (2007) Withholding and Withdrawing Lifeprolonging Medical Treatment: Guidance for decision making, third edition, Oxford: Blackwell Publishing. British Medical Association and Law Society (2004) Assessment of Mental Capacity: Guidance for Doctors and Lawyers, second edition, London: BMJ Books. British Psychological Society (2006) Assessment of Capacity in Adults: Interim Guidance for Psychologists, Leicester: British Psychological Society. Department of Health (2000) No Secrets: guidance on development and implementation of multi-agency policies and procedures to protect vulnerable adults, London: Department of Health. Department of Health (2004) The Ten Essential Shared Capabilities: A Framework for the Whole of the Mental Health Workforce, London: Sainsbury Centre for Mental Health, NHSU and National Institute for Mental Health England.

67 Department of Health (2004) Advice on the Decision of the European Court of Human Rights in the Case of HL v UK (The Bournewood Case), London: Department of Health. Department of Health (2006) Bournewood Briefing Sheet, London: Department of Health. Griffith, R. (2006) Making decisions for incapable adults 1: capacity and best interest, British Journal of Community Nursing, Vol. 11, No. 3, Griffith, R. (2006) Making decisions for incapable adults 2: advance decisions refusing care, British Journal of Community Nursing, Vol. 11, No. 4, Griffith, R. (2006) Making decisions for incapable adults 3: protection, guardians and advocates, British Journal of Community Nursing, Vol. 11, No. 5, Hotopf, M. (2005) The assessment of mental capacity, Clinical Medicine, Vol. 5, No. 6, Jones, R.W. (2005) Mental Capacity Act 2005, London: Thompson, Sweet and Maxwell. National Assembly for Wales (2000) In Safe Hands, Cardiff: Social Services Inspectorate. National Association for Mental Health (MIND) (2006) Guidance on the Mental Capacity Act 2005: Part 1, Openmind, 138. National Association for Mental Health (MIND) (2006) Guidance on the Mental Capacity Act 2005: Part 2, Openmind, 140. National Council for Palliative Care (2005) Guidance on the Mental Capacity Act 2005, London: National Council for Palliative Care. Schiff, R., Sacares, P., Snook, J., Rajkumar, C. and Bulpitt, C.J. (2006) Living wills and the Mental Capacity Act: a postal questionnaire survey of UK geriatricians, Age and Ageing, 35: Woodbridge, K. and Fulford, K.W.M. (2004) Whose Values? A workbook for values-based practice in mental health care, London: Sainsbury Centre for Mental Health. 61

68 Certif icate of Completed Learning Hours Mental Capacity Act 2005 Residential Accommodation Training Set Continuing Professional Development (five hours) I certify that I,. have completed this Residential Accommodation Training Set