Mental Capacity Act Policy V3.00 Lead executive Name / title of author: Mandy Bailey Chief Nurse Lesley Shaw, Lead Nurse Vulnerable Adults Date reviewed: October 2015 Date ratified: 13/11/2015 Ratifying Committee: CSSC Target audience: Trust / Organisation wide Policy Summary: This policy states the legislation and statutory requirements for all staff involved in decision making with vulnerable adults. Equality Impact Statement: University Hospital of South Manchester NHS Foundation Trust ( UHSM ) strives to ensure equality of opportunity for all service users, local people and the workforce. As an employer and a provider of health care, UHSM aims to ensure that none are placed at a disadvantage as a result of its policies and procedures. This document has therefore had an initial assessment, in accordance with the equality impact proforma incorporated in the Checklist for Review and Ratification of UHSM-wide Documents, to ensure fairness and consistency for all those covered by it regardless of their individuality. Training impact and plan summary: Mandatory training is accessed through the Trust Safeguarding Adults and Learning Disabilities ELearning modules. Bespoke training is available to departments by application to the safeguarding adults team. Outline plan for dissemination: Dissemination lead: name / title / ext n o Lesley Shaw. Lead Specialist Nurse Adult Safeguarding. This version n o V3 Date published: 17/11/2015
Version Control Schedule Version Issue Date Revisions from previous issue Ratified by Committee V1 October 2009 Mental Capacity Act (2005) Guidelines Version 1 6.10.2009 V2 April 2012 Minor amendments and addition of MCA flowchart 1.04.2012 V3 October 2015 Policy review and updated templates Summary of consultation process Control arrangements Document Control Safeguarding Adults Governance Board, Deputy Chief Nurse, Chief Nurse, Lead Specialist Nurse, intranet See policy of policies for guidance Associated documents UHSM DNACPR policy UHSM Deprivation of Liberty Policy UHSM Consent Policy References Mental Capacity Act 2005 Mental Capacity Act Code of Practice The Lasting Powers of Attorney and Public Guardian Regulations 2007 Process for monitoring Document Compliance Monitoring Arrangements Process for monitoring e.g. audit capacity assessment and best interest process must be compliant with Mental Capacity Act (2005) and all outcomes documented in patient records. The complaints procedure may be used to raise issues of concern around decisions made. Any issues raised will be reported to the Safeguarding Adults Governance Board. Responsible individual / group/ committee Frequency of monitoring Role responsible for preparation / approval of report and action plan Committee responsible for review of results / approval of action plan Individual / group / committee responsible for monitoring of action plan Annual CQC review of compliance with the essential standards for consent to care and treatment. Review of concerns brought to the attention of the safeguarding vulnerable adults service. Responsible individual/ group/ committee for review of results: Safeguarding Adults Governance Board, Dementia group Formal quarterly review of safeguarding incidents. Informal monthly review of MCA compliance. Safeguarding Adults Governance Board. Safeguarding Adults Specialist Nurse, Deputy Chief Nurse, Safeguarding Adults Governance Board. Safeguarding Adults Governance Board, Manchester Safeguarding Adults Board. 2
Contents Section Page 1 Introduction 4 2 Purpose & Scope 4 3 Definitions 5 4 Duties 7 4.1 Duties within the organisation 7 4.2 Responsibility of the Chief Nurse 7 4.3 Responsibilities of the Medical Director, Divisional Medical Directors and Clinical Directors 7 4.4 Responsibilities of the Deputy Chief Nurse 7 4.5 Responsibilities of the Lead Specialist Nurse, Vulnerable Adults. 7 4.6 Responsibilities of the Learning & Development Department 7 4.7 Responsibilities of the Heads of Nursing 8 4.8 Responsibilities of the Matrons 8 4.9 Responsibilities of the Bed Management Team 8 4.10 Responsibilities of Ward Managers 8 4.11 Responsibilities of Nurses, Midwives, AHCP and Doctors, Social Workers, Psychiatrists and IMCAs 8 5 Five Key Principles of this Act 8 5.1 Assessing Lack of Capacity 9 5.2 Defining a Lack of Capacity 9 5.3 Inability to Make Decisions 10 6 Factors which may affect capacity 10 7 Best Interest 10 7.1 Checklist 11 8 The Independent Mental Capacity Advocate 11 9 Restraint/Deprivation of Liberty 12 10 Consent 14 11 DNACPR 15 12 III Treatment 15 13 Research 16 13.1 Implications for Research 16 14 Appointed Decision Makers 17 14.1 Lasting Power of Attorney (LPA) 17 14.2 Advanced Decisions to Refuse Treatment 17 14.3 Two New Public Bodies 17 14.4 A New Court of Protection 17 14.5 A New Public Guardian 17 15 Monitoring and Review 17 16 References 18 Appendices Appendix A Flowchart, Capacity Assessment, Best Interest process document 20 Appendix B IMCA Referral 26 3
1. Introduction 1.1 The Mental Capacity Act 2005 (MCA) provides a statutory framework to empower and protect vulnerable people who may not be able to make their own decisions and it became statute in 2007. The MCA makes it clear who can take decisions in which situations and how they should go about this. It enables people to plan ahead for a time when they may lose capacity. 1.2 The Act enshrines in statute current best practice and common law principles concerning people who lack mental capacity and those who take decisions on their behalf. It provides for reform and updating of the current statutory schemes for powers of attorney and Court of Protection receivers. 1.3 An amendment to the Act, The Deprivation of Liberty Safeguards (DoLS) was introduced into the Mental Capacity Act 2005 by the Mental Health Act 2007 in 2009. 1.4 The DoLS safeguards provide a framework for approving the deprivation of liberty for people who lack the capacity to consent to treatment or care in either a hospital or care home that, in their own best interests, can only be provided in circumstances that amount to a deprivation of liberty. The safeguards legislation contains detailed requirements about when and how deprivation of liberty may be authorised. It provides for an assessment process that must be undertaken before deprivation of liberty may be authorised and detailed arrangements for renewing and challenging the authorisation of deprivation of liberty. The DoLS policy is available separately on the intranet. 1.5 A National Code of Practice has been drawn up and forms the basis for this policy. 2. Purpose and Scope 2.1 The Trust have a key role in helping and supporting people with impaired mental functioning to understand what decisions need to be made and why, and what the consequences of those decisions are. We are sometimes the only people in a position to provide information to service users about the options available to them, or where they can get other help and/or advice. This guidance should increase staff awareness of the different options available to people to help them in this situation. 2.2 There is a statutory requirement to determine a person s mental capacity in relation to the decisions they face both throughout the acute care process and more widely in their lives. This guidance helps staff to understand the factors that affect capacity. 4
2.3 Scope - This policy is for information for acute healthcare staff and social care staff working within the Trust and should be read in conjunction with the other related policies within the Trust e.g. Consent. 2.5 A National Code of Practice forms the basis for this policy. 3. Definition of terms Capacity Capacity is the ability to make a specific decision at the time the decision needs to be made. Ability to make a decision is informed by for example a person s ability to understand the decision and why it needs to be made. See the MCC capacity tool and the code of practice for further information. The Court of Protection The Court of Protection makes decisions for people who are unable to do so for themselves (those who lack capacity). It can also appoint someone (called a deputy) to act for people who are unable to make their own decisions. These decisions are for issues involving the person s property, financial affairs, health and personal welfare. Best Interests Section 4 of the Act provides a statutory checklist of factors that decisionmakers must work through in deciding what is in a person s best interests. This is laid out in Manchester s Capacity Assessment and Best Interests Process ( CABIP ) tool, as noted above. Acts in connection with care or treatment Section 5 clarifies that, where a person is providing care or treatment for someone who lacks capacity, and then the person can provide the care without incurring legal liability. The key will be proper assessment of capacity and best interests. This will cover actions that would otherwise result in a civil wrong or crime if someone has to interfere with the person s body or property in the ordinary course of caring. For example, by giving an injection or by using the person s money to buy items for them. Restrictions, Restraint and Deprivation of Liberty Section 6 of the MCA defines restraint as the use or threat of force where an incapacitated person resists, and any restriction of liberty or movement whether or not the person resists. Restraint is only permitted if the person using it reasonably believes it is necessary to prevent harm to the incapacitated person or others, and if the restraint used is proportionate to the likelihood and seriousness of the harm. There is no single definition of a deprivation of liberty. The starting point must be the specific situation of the individual concerned and account must be taken of a whole range of factors such as the type, duration, effect, and the manner of implementation of the restriction and / or restraint measures in question. 5
There is a scale which moves from no restriction, through varying degrees of restriction, to deprivation of liberty; where an individual is on that scale may change over time. The code of practice gives practitioners a full explanation, and examples of, restriction and deprivation and when it may be appropriate to use either one. Advance decisions to refuse treatment Adults with capacity may make a decision in advance to refuse treatment if they should lose capacity in the future. An advance decision will have no application to any treatment which a doctor considers necessary to sustain life unless strict formalities have been complied with. These formalities are that the decision must be in writing, signed and witnessed. In addition, there must be an express statement that the decision stands even if life is at risk. Independent Mental Capacity Advocate The statutory Independent Mental Capacity Advocacy Service is to help particularly vulnerable people who lack capacity, make important decisions about serious medical treatment and changes of accommodation, and who have no family or friends that it would be appropriate to consult about these decisions. Decision Maker(s): This is the person who has undertaken, or persons who have undertaken, a best interests process to arrive at a decision on behalf of a person who lacks capacity in relation to the decision in question, and they either make the best interests decision individually or collectively. See the CABIP tool procedure. Attorney: The Act allows a person to appoint an attorney to act on their behalf if they should lose capacity in the future. The attorney must be registered with the office of the public guardian before they can legally act for the person in regards to decisions in connection with their Property & Affairs and / or decisions as to their Personal Welfare, in their best interests. Donee: This is the person who makes a Lasting Power of Attorney, for either Property & Affairs and / or Personal Welfare. Deputy of the Court of Protection: Court of protection deputies are appointed individuals given the power to take decisions about either personal welfare and/or financial matters. Public Guardian: The Public Guardian is the registering and monitoring authority for LPA s and deputies. Managing Authority - The care home or hospital provider such as acute or foundation trust. Supervisory Body Manchester City Council or NHS Manchester. Relevant Person The customer or patient, as appropriate. 6
Relevant Person s Representative - The person appointed by the Supervisory Body to represent the relevant person subject to a DoLS Authorisation. Best Interests Assessor the professional appointed by the Supervisory Body to undertake certain assessments of the six qualifying requirements upon which the DoLS legislation is founded. Mental Health Assessor the professional appointed by the Supervisory Body to undertake certain assessments of the six qualifying requirements upon which the DoLS legislation is founded. Standard Authorisation - A Managing Authority must request a Standard Authorisation when it appears likely that, at some time during the next 28 days, someone will be accommodated in its care home or hospital in circumstances that amount to a deprivation of liberty within the meaning of Article 5 of the European Convention on Human Rights. Urgent Authorisation Where it is not possible, and the Managing Authority believes it is necessary to deprive someone of their liberty in their best interests before the standard authorisation process can be completed, the Managing Authority must itself give an Urgent Authorisation and then obtain a Standard Authorisation within seven calendar days. An urgent authorisation can be for a maximum of 7 days but may be extended by the Supervisory Body for up to a further 7 days in exceptional circumstances. 4. Duties 4.1 Duties within the Organisation 4.2 Responsibility of the Chief Nurse The Chief Nurse has Board level responsibility for the quality of patient care and is responsible for ensuring that appropriate systems and processes are in place to ensure all patients with mental health needs are addressed The Chief Nurse will ensure that all nursing, midwifery and therapists are aware of the policy and that their teams comply. 4.3 Responsibilities of the Medical Director, Divisional Medical Directors and Clinical Directors. To ensure that all the teams are aware of and adhere to this policy. 4.4 Responsibilities of the Deputy Chief Nurse The Deputy Chief Nurse is responsible for ensuring the Policy is taken to Governance and implemented. 4.5 Responsibilities of the Lead Nurse Vulnerable Adults The Lead Nurse Vulnerable Adults will ensure that Mental Capacity training 7
is available to all Trust healthcare professionals and will provide an annual audit of attendance. 4.6 Responsibilities of the Learning and Development Department The Learning and Development Department will hold records for training attendance and provide data accordingly. 4.7 Heads of Nursing Heads of Nursing should ensure their divisional nursing staff are aware of the Policy and its key principles, and that specific staff who may be utilised in assessing patients attend relevant training arranged within the FT when required. 4.8 Responsibilities of Matrons Matrons have overall responsibility for ensuring high standards of privacy and dignity in their clinical areas and for monitoring this by regular matron s rounds. Matrons are responsible for ensuring adherence to this Policy and for escalating patient issues to their Head of Nursing. 4.9 Responsibilities of the Bed Management Team The bed management team is responsible for appropriate patient allocation and to ensure that vulnerable patients are not moved inappropriately resulting in the patient becoming more confused and distressed. There needs to be consideration that if a person is lacked to deem the capacity to consent to a move a mental capacity assessment may need to be performed and to whose best interest this is in as defined by the Act. 4.10 Responsibilities of Ward Managers Ward Managers are responsible for supporting their staff in their training needs and to ensure compliance of the Act. They also have a responsibility to escalate patient issues when necessary to the relevant Matron. 4.11 Responsibility of Nurses, Midwives, Allied Health Profesionals and Doctors, Social Workers, Psychiatrists and Independent Mental Capacity Advocates (IMCAs). Nurses, Midwives, Doctors and Social Workers are responsible for ensuring compliance of the Act and for raising concerns with Heads of Nursing, Clinical Leads, and Team Leaders when this is deemed difficult or complex. Each Professional should take responsibility for each decision being required and perform their own assessments e.g. Consultant/Medic - Clinical decisions, Nurse - nursing decision, Social Worker - Social needs Psychiatrist - more complex cases involving concerns complex mental health issues. Allied Health Professionals - concerns of risk issues (mobility/safety). IMCA - own assessments regarding advocacy/vulnerable adults concerns. It may be advisable to perform joint mental capacity assessments if there is conflict and involve the IMCA service. 8
If patient issues arise which have a potential impact on patient or staff safety, escalation through the divisional management and nursing structures is essential in order to address and action the problems. 5. Five Key Principles of the Act The Act establishes five statutory principles which underpin the legislation and which must be applied in all circumstances. These are laid out in section 1 of the MCA (2005), as follows: 1 Assumption of capacity: a person must be assumed to have capacity unless it is established that he lacks capacity. 2 Assisted decision-making: a person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. 3 Unwise decisions: a person is not to be treated as unable to make a decision merely because he makes an unwise decision. 4 Best interests: 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 his best interests. 5 Least restrictive alternative: 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. 5.1 Assessing Lack of Capacity (see Appendix A for pack containing flowchart and template for guidance on assessment of capacity) The Act sets out a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time. It is a decisionspecific test. No-one can simply be labeled incapable as a result of a particular medical condition or diagnosis. It is intended that anyone involved in the care of an individual should be able to use the test to determine whether there is capacity in relation to the decision in question. The date, the nature of the decision in question and the outcome of any assessment should be recorded, both as part of the tracking of the decisionmaking process and as a possible (but not definitive) guide for the future. It is also a legal requirement to document why and how a decision has been made. 9
5.2 Defining a Lack of Capacity A person lacks capacity in relation to a matter if at the material time s/he is unable to make a decision for him/herself in relation to the matter because of impairment, or a disturbance in the functioning, of the mind or brain. It does not matter whether the impairment or disturbance is permanent or temporary. A lack of capacity cannot be established merely by reference to: (a) A person's age or appearance, or (b) A condition, or an aspect of their behaviour, which might lead others to make unjustified assumptions about their capacity. Any question as to whether a person lacks capacity must be decided on the balance of probabilities. 5.3 Inability to Make Decisions A person is unable to make a decision for him/herself if s/he is unable to meet any one of the following criteria: Understand the information relevant to the decision, Retain that information, Use or weigh that information as part of the process of making the decision, or Communicate their decision (whether by talking, using sign language or any other means). A person is not to be regarded as unable to understand the information relevant to a decision if: S/he is able to understand an explanation of it given to him/her in a way that is appropriate to their circumstances (using simple language, visual aids or any other means). The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him/her from being regarded as able to make the decision. 6. Factors Which May Affect Capacity A person s mental capacity can vary or be temporarily impaired due to mood or depression. In these circumstances, it may be possible to put off a decision until such time as the person has regained capacity. A person may have the capacity to make some decisions but not others. We must weigh up a person s capacity against the specific decision that needs to be made. For example a person who cannot weigh up the implications of entering long term care might still have the capacity to make a choice about which home they would prefer. 10
A lack of information. We need to make sure that any information relevant to the decision is provided in a format that the person can understand. An interpreter may be required. Pressure. Carers or other family members may sometimes exert undue pressure when the person being cared for is actually capable of making their own decisions or where expert help may help them do so. Coercion is not acceptable and is unlawful. A lack of trust. A person may feel anxious about dealing with staff from health or social services, so we must ensure that they have access to independent support, advice or advocacy in these circumstances. Hearing loss, sensory problems - please ensure hearing aids/ spectacles are worn. Aphasia - May require sign language, pictures, writing. Privacy - Ensure if possible in private area. 7. Best Interests Sedation/fatigue - ensure assessment at time when person more alert/lucid. The Act provides a checklist of factors that decision-makers must work through in deciding what is in a person s best interests. A person can put his/her wishes and feelings into a written statement if they so wish, which the person making the determination must consider. Also, carers and family members gain a right to be consulted. 7.1 Checklist ( Appendix B) In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of : (a) the person's age or appearance, or a condition of his/hers, (b) or an aspect of his/her behaviour, which might lead others to make unjustified assumptions about what might be in his/her best interest. They must consider all the relevant circumstances and, in particular, take the following steps. S/he must consider; Whether it is likely that the person will at some time have capacity in relation to the matter in question, and If it appears likely that s/he will do so, when that is likely to be. S/he must, so far as reasonably practicable should permit and encourage the person to participate, or to improve his/her ability to participate, as fully as possible in any act done for them and any decision affecting them. 11
In conjunction with an IMCA where appropriate: S/he must consider, so far as is reasonably ascertainable: The person s past and present wishes and feelings (and, in particular, any relevant written statement made by them when they had capacity), The beliefs and values that would be likely to influence their decision if they had capacity; and The other factors that they would be likely to consider if they were able to do so. S/he must take into account, if it is practicable and appropriate to consult for the views of; Anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, Anyone engaged in caring for the person or interested in his/her welfare, Any donee of a lasting/enduring power of attorney granted by the person, and Any deputy appointed for the person by the court, as to what would be in the person s best interests. The duties imposed in 7 above also apply in relation to the exercise of any powers which; May be exercised under a lasting/enduring power of attorney, or May be exercised by a person under this Act where s/he reasonably believes that another person lacks capacity. In the case of an act or a decision by a person other than the court, it is sufficient if (having complied with the requirements of section 4.2 of the Act in relation to best interests) s/he reasonably believes that what s/he does or decides is in the best interests of the person concerned. "Relevant circumstances" are those which: The person making the determination is aware of, and It would be reasonable to regard as relevant. 8. The Independent Mental Capacity Advocate (see application form, Appendix B) http://www.manchesteradvocacyhub.co.uk/ The role of the Independent Mental Capacity Advocate (IMCA) is introduced for the first time in the Act, and is crucial in helping to determine the preferences of someone who lacks capacity at specific points in their life when an important decision needs to be made. Details of this service, the 12
situations in which it must or may be used, eligibility, and how to access the service, can be found on Charts 1, 2, 3, 4. 6. At key stages in life, such as a change of accommodation or the need for serious medical treatment, the statutory agencies providing care for adults in Greater Manchester now have a duty to provide suitable independent specialist advocates for people who lack mental capacity. These advocates must be able to identify as far as possible the service user s views and preferences, and present them to those responsible for providing care. An IMCA legally must be requested if the person has no family or friends, or has change of accommodation. The duty is triggered when the proposed move in question is: To or between hospitals for a period likely to exceed 28 days, or To or between care homes for a period likely to exceed eight weeks. There is a similar duty where serious medical treatment may be provided, withdrawn or withheld. The criteria for serious medical treatment are: There is a fine balance between the benefits and the risks, or The choice between treatments is finely balanced, or What is proposed would be likely to involve serious consequences for the patient. The only situation in which the duty to seek advice from an IMCA could be dispensed with is where the proposed treatment needs to be provided as a matter of urgency, for example to save the person s life or prevent a serious deterioration in his/her condition. The commissioners have the power to appoint an advocate in Adult Protection procedures, where protective measures are being put in place and the person concerned lacks capacity. Where these criteria are met, there is a duty to consider the provision of an advocate. The individual lacking capacity may be either the abused or the alleged abuser. They may not necessarily be unbefriended (i.e. having no friend or family member able and/or willing to represent their best interests or preferences), but it may be appropriate to have an entirely independent advocate for them. In addition the commissioners may provide an advocate for a care review where they made the current placement arrangement, the service user has lost capacity, and there is no one else appropriate to consult. The IMCA should be recorded as an interested party in documentation if appropriate. 13
9. Restraint/deprivation of liberty (see UHSM Deprivation of Liberty policy) Section 6 of the Act defines restraint as the use or threat of force where an incapacitated person resists, and any restriction of liberty or movement whether or not the person resists. Restraint is only permitted if the person using it reasonably believes it is necessary to prevent harm to the incapacitated person, and if the restraint used is proportionate to the likelihood and seriousness of the harm. Section 6(5) makes it clear that it does not provide any protection for an act depriving a person of his or her liberty within the meaning of Article 5(1) of the European Convention on Human Rights. 10. Consent The Mental Capacity Act requires that health professionals seeking consent for patients who lack capacity, must consult other people, and take into account their views as to what would be in the best interests of the person lacking capacity; especially anyone previously named by the person lacking capacity as someone to be consulted and anyone engaging in caring for the patient and their family and friends. The Mental Capacity Act introduced a duty on the NHS to instruct an Independent Mental Capacity Advocate (IMCA) in serious medical treatment decisions when a person who lacks capacity to make a decision has no one who can speak for them, other than paid staff. IMCAs are not decision maker for the person who lacks capacity. They are there to support and represent that person to ensure that decision making for people who lack capacity is done appropriately and in accordance with the Act Lasting Power of Attorney and Court Appointed Deputy A person over the age of 18 can appoint an attorney to look after their health and welfare decisions, if they lack the capacity to make such decisions in the future. Under a Lasting Power of Attorney (LPA) the attorney can make decisions that are as valid as those made by the person themselves. The LPA may specify limits to the attorney s authority and the LPA must specify whether or not the attorney has the authority to make decisions about lifesustaining treatment. The attorney can therefore; make decisions as authorised in the LPA and in the person s best interests. Second opinions and court involvement Where treatment is complex and/or people close to the patient express doubts about the proposed treatment, a second opinion should be sought, unless the urgency of the patient's condition prevents this. The Court of Protection deals with serious decisions affecting personal welfare matters, 14
including healthcare, which were previously dealt with by the High Court. Cases involving: Decisions about the proposed withholding or withdrawal of artificial nutrition and hydration from patients in a permanent vegetative state. Cases involving organ, bone marrow or peripheral blood stem cell donation by an adult who lacks capacity to consent. Cases involving the proposed non-therapeutic sterilisation of a person who lacks capacity to consent to this (e.g. for contraceptive purposes) and All other cases where there is doubt or dispute about whether a particular treatment will be in a person s best interests (include cases involving ethical dilemmas in untested areas) should be referred to the Court for approval. The Court can be asked to make a decision in cases where there are doubts about the patient s capacity and also about the validity or applicability of an advance decision to refuse treatment. 11. DNACPR Once a decision has been made by a clinician, in conjunction with the person, not to attempt cardiopulmonary resuscitation (CPR), the person should be informed to allow them to make further decisions for themselves in light of the DNACPR. Any such decision should be kept under review as appropriate to the patient s circumstances in response to the decision and time specific requirements of the MCA. Where the patient lacks capacity and has nobody to speak on their behalf, these decisions should involve consultation with the person s carers/relatives/ Lasting Power of Attorney (LPA) and the possible appointment of an Independent Mental Capacity Advocate (IMCA). A Mental capacity assessment in line with the MCA - the functional and diagnostic tests must be carried out if it is believed that the person s mental capacity is in question. All details of the assessment must be clearly documented in the person s notes. 12. Ill Treatment The Act introduces a new criminal offence of ill treatment or neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to imprisonment for a term of up to five years. 15
13. Research The Act lays down clear parameters for research where people without capacity may be the subjects. This has been incorporated into the Directorate s new Research and Consultation policy. 13.1 Implications for Research The Mental Capacity Act 2005 establishes a framework for the protection of the rights of people who lack capacity to make a decision for themselves. The Act also includes safeguards for the conduct of research involving those who may not be able to consent due to an impairment, for example because of learning disabilities, and illness such as dementia, brain injury or mental health problems. The Act s provisions are designed to ensure that the interests and safety of people who lack capacity are protected when they participate in research and to ensure that their current and previously expressed wishes and feelings are respected. Anyone carrying out research to which the requirements of the Act apply must act in accordance with the provisions of the Act in order for the research to be lawful. The Mental Capacity Act Code of Practice (Mental Capacity Act 2005, 1) provides more information on the general research provisions in the Act and researchers have a duty to ensure that they act in accordance with its requirements. This guidance must be read in conjunction with the Code of Practice and other relevant guidance, for example on the duties of Research Ethics Committees (RECs) and local research governance. The Act requires that any research project that is subject to the Act is approved by an appropriate body as defined in the Appropriate Body Regulations (Mental Capacity Act 2005 2). The Regulations refer to a committee established to advise on the ethics of intrusive research in relation to people who lack capacity to consent to it and which is recognised for that purpose by the Secretary of State or the Welsh Ministers * (referred to here as an REC). The REC must be satisfied that the research meets the relevant requirements relating to the nature, risks and benefits of the research and the arrangements in place to meet the other safeguards in the Act. In particular, the Act requires that before a person who lacks capacity at the material time ( P in the Act) is enrolled in an approved project, a suitable person is identified who can act as a consultee and advise the researcher ( R ) on whether the person who lacks capacity would want to be involved in the project. The Act requires the researcher to take steps to identify a consultee who has a role in caring for the person who lacks capacity or is interested in that person s welfare but is not doing so for remuneration or acting in a professional capacity (a personal consultee ). The Act recognises that in 16
some cases the researcher may not be able to identify such a consultee because the person who lacks capacity has no family or friends who are willing and able to fulfil this role. Alternatively, there may be carers willing to act as consultee but who may not do so because they are acting in a professional capacity, such as a nurse or legal adviser. In such situations, section 32(3) of the Act requires that the researcher must act in accordance with guidance issued by the Secretary of State and the Welsh Ministers and nominate a person to act as a consultee (a nominated consultee ). This guidance sets out the principles to which researchers must adhere in nominating a consultee and provides advice on ways of meeting this requirement in different research settings. The Act does not affect research that is a clinical trial within the meaning of the Medicines for Human Use (Clinical Trials) Regulations 2004 (as amended). Those Regulations include similar principles for the involvement of a legal representative when enrolling an adult who lacks capacity in a clinical trial. This guidance also covers the Act s provisions on emergency research. This relates to special circumstances where it might not be possible to consult family or friends before the research must start. For example, research that is part of emergency trauma care may need to start in the first few minutes after an injury or illness. The person can be enrolled in the project with: the agreement of a doctor who is not connected with the project, or in accordance with a procedure previously agreed by the REC where it is not reasonably practicable to obtain agreement from a doctor who has no connection with the project. As soon as the emergency is over, arrangements must be made to seek consent in the usual manner or to seek advice from a consultee on the continued participation of the person who lacks capacity in the study. * Functions conferred on the National Assembly for Wales by the Mental Capacity Act 2005 were transferred to the Welsh Ministers by virtue of section 162 of and paragraph 30 of schedule 11 to the Government of Wales Act 2006. 1 Nominated consultee guidance. 14. Appointed Decision Makers 14.1 Lasting Powers of Attorney (LPA) The Act allows a person to appoint an attorney to act on their behalf if they 17
should lose capacity in the future. This is like the Enduring Power of Attorney (EPA), who may make financial decisions if appointed, but the Act also allows people now to let an attorney make health and welfare decisions. The financial and welfare duties may be combined or shared between different people. 14.2 Court Appointed Deputies The Act provides for a system of court appointed deputies to replace the current system of receivership in the Court of Protection. Deputies will be able to take decisions on welfare, healthcare and/or financial matters as authorised by the Court, but will not be able to refuse consent to lifesustaining treatment. As in the case of LPAs, the welfare and finance responsibilities may be combined or shared. They will only be appointed if the Court cannot make a one-off decision to resolve the issues. 14.3 Advance Decisions to Refuse Treatment Statutory rules with clear safeguards will confirm that people may make a decision in advance to refuse treatment if they should lose capacity in the future. 14.4 Two new public bodies Will support the statutory framework, both of which will be designed around the needs of those who lack capacity. 14.4. Court of Protection The Court will have jurisdiction relating to the whole Act and will be the final arbiter for capacity matters. It will have its own procedures and nominated judges. 14.5 Public Guardian The Public Guardian and his/her staff will be the registering authority for LPAs and deputies. They will supervise deputies appointed by the Court and provide information to help the Court make decisions. They will also work together with other agencies, such as the police and social services, to respond to any concerns raised about the way in which an attorney or deputy is operating. A Public Guardian Board will be appointed to scrutinise and review the way in which the Public Guardian discharges his/her functions. 15. Monitoring and Review 16. References Department of Health (2005), Mental Capacity Act 18
Mental Capacity Act 2005 (1) Code of Practice, available at: Practice MCA Code of Mental Capacity Act 2005 (2) (Appropriate Body) (England) Regulations 2006 and the Mental Capacity Act 2005 (Appropriate Body) (Wales) Regulations 2006. 19
Appendix A 20
Mental Capacity Assessment Name of adult: Date of Birth: Name of assessor: Date/(s) and time(s) of assessment: Section 1: The decision in question Describe the decision that the person is making: Be as specific and accurate as you can Section 2: (Stage One) The diagnostic test of capacity Does the person have an impairment of, or disturbance in the functioning of their mind or brain? E.g. delirium, confusion, dementia, stroke, autism. No If no, the person can be deemed to have capacity and you should proceed to the conclusion section. Yes If yes, describe a brief summary of the diagnosis and how the diagnosis effects decision making: Section 3: (Stage Two) The functional test of capacity - See full guidance on MCA Intranet page. Do you consider the person able to understand the information relevant to the decision? Yes No Evidence: E.g. the questions you asked and the responses given Do you consider the person able to retain the information relevant to the decision? Yes No Evidence: E.g. the questions you asked and the responses given Do you consider the person able to use or weigh up the information as part of the decision making process? Yes No Evidence: E.g. the questions you asked and the responses given Do you consider the person able to communicate their decision? Yes No Evidence: E.g. the questions you asked and the responses given Conclusion: If you have answered NO to any of the questions, the patient lacks capacity Signature: Full guidance on completing this form can be found on the UHSM Intranet left hand menu will provide a direct link to the Safeguarding Vulnerable Adults pages. 21
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Gateway into IMCA Services Appendix B IMCA Referral Serious Medical Treatment. Does the person lack capacity on the decision in hand? The person has no family or friends (or it is not practicable or appropriate to consult them) Is serious medical treatment being considered? Serious medical treatment involves providing, withdrawing or withholding treatment where: In a case of a single treatment there is a fine balance between its benefits and the burdens and risks it entails Where there is a choice of treatment, a decision as to which area is finely balanced What is proposed is likely to have serious consequences for the patient. See the Code of Practice for further clarification Yes Is treatment urgent? Decision makers can proceed under authority of the Mental Capacity Act (MCA s.37(4)) and under common law (e.g. duty of care, saving life and limb) if no time to check capacity or appoint IMCA No No Yes No. Check whether another relative decision or refer on to local advocacy where available. Decision makers can proceed with treatment if urgent. IMCA should be notified and involved if any subsequent serious treatment decisions Is the patient detained under certain relevant sections of the Mental Health Act* and the treatment is for mental disorder? No - not detained - or not relevant section - or detained but treatment for physical health condition A referral to IMCA MUST be made. IF IN DOUBT SEEK ADVICE FROM IMCA Yes The Mental Health Act gives authority to treat certain detained patients for mental disorder i.e. without consent, or on authority of an S.O.A.D. Namely the Sections where Part IV of the Mental Health Act applies where treatment can be given without consent YES, if patient on s.2, s.3, s.36, s.37, s.38, s.44, 45A, 46-48 NO, if patient on s.4, s.5(2), 5(4), 25A, 35, 135 or 136 or informal (unless psychosurgery or sex hormone implant - see s.56 and s.57 of the Mental Health Act) 26
MAH3 Policy for The Mental Capacity Act (2005) - Version 5.2 MANCHESTER ADVOCACY HUB Gaddum Centre, 6 Great Jackson Street, Manchester, M15 4AX Telephone: 0161 214 3904 E-mail: advocacy@gaddum.co.uk IMCA REFERRAL FORM SERVICE USER DETAILS Title: Forename: Surname: Address at time of referral: e.g. res home, hospital Postcode: Home Address Postcode: Telephone: Mobile: Gender: Male Female Date of Birth Nature of Cognitive Impairment Nature of Disability Communication needs Yes No If yes please provide full details of communication needs:- The IMCA will need confirmation that a time and decision specific capacity assessment has been carried out and details of the outcome Has a time and decision specific capacity assessment been carried out Yes No If YES, date capacity assessment was undertaken This Completed version V5.2 by Sept 2015 Next review date Sept 2018 Outcome Paper of capacity copies may assessment not be current - refer to the intranet for the most recent version of this document 27
Policy for The Mental Capacity Act (2005) - Version 5.2 This version V5.2 Sept 2015 Next review date Sept 2018 28