Mental Capacity Act 2005 Julia Barrell MCA Manager Cardiff and Vale UHB 1
Introduction What is the Mental Capacity Act 2005? 5 Key Principles What is Mental Capacity? 2 Stage Test Best Interests and Consultation The decision maker Restraint and restrictions Other Key Issues 2
Mental Capacity Act 2005 empowers and protects people who lack capacity to make decisions for themselves puts the needs and wishes of an incapacitated person at the centre of any decision making process brings clarity to decision making protects incapacitated people but also carers and professionals 3
Scope of the Act affects people aged 16 and over has the potential to impact upon the whole adult population about 2 million people currently lack capacity 6 million people care for those with impaired capacity 4
Scope of the Act contd.. Includes people incapacitated by: Dementia Physical illness or its treatment Learning disability Brain injury or stroke Mental disorder Substance misuse Or Anyone planning for the future 5
Five Key Principles A presumption of capacity Support to make decisions Right to make unwise decisions Best interests Least restrictive intervention 6
The Principles A person must be assumed to have capacity unless it is established that he lacks capacity. A person is not to be treated as unable to make a decision unless s all practicable steps to help him to do so have been taken without success. A person is not to be treated as unable to make a decision merely y because he makes an unwise decision. An act done, or decision made, for or on behalf of a person who lacks capacity must be done, or made, in his best interests. 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 7
What is Mental Capacity? Mental capacity is the ability to make a decision Capacity can vary over time Loss of capacity may be temporary Capacity may well vary in relation to the decision required An individual lacks capacity if they are unable to make a particular decision at a specific time 8
Two Stage Capacity Test Is there an impairment of, or disturbance in, the functioning of the person s s mind or brain? Is the impairment or disturbance sufficient that the person lacks the capacity to make that particular decision? 9
Capacity Test contd.. A person is unable to make a decision for himself if he is unable: to understand the information relevant to the decision to retain that information to use or weigh that information, or to communicate his decision 10
Capacity Test contd.. Does the person have general understanding of what the decision is and why they are being asked to make it? Do they understand the consequences of making, or not making, the decision? Can they use the information as part of the decision making process? 11
If person lacks capacity. No-one one can consent to care or treatment on behalf of that person, except A Court appointed Deputy A donee of a Lasting Power of Attorney This means that family members, health professionals, etc cannot consent on behalf of the person! 12
Best interests overview Need to weigh up a number of issues, including Medical, welfare, emotional and social What the person would have decided, if they still could What other people feel is best for the person 13
Best Interests Checklist To decide what is in an incapacitated person s best interests consider: The person s s future capacity Their past and present wishes and feelings Beliefs and values likely to influence their decision Other factors that the person would be likely to consider 14
Consultation Appropriate individuals have a right to be consulted prior to a best interests decision: Anyone named by the incapacitated person Anyone engaged in caring for the person or interested in his welfare Any donee of a lasting power of attorney Any deputy appointed by the court 15
Best interests contd. Best interests is NOT what you would want done, if you were the person who lacked capacity Best interests is NOT just medical best interests need to consider emotional, welfare and social issues too Best interests is NOT what the relatives, etc want (best for the relatives, etc) it s s what those people think would be best for the person, knowing them as they do Best interests is NOT substituted judgement (ie. what the person would have decided) although this is something that needs to be considered 16
The Decision Maker The person who needs the decision taken is the person who must decide about the patient s capacity and decide what is in their best interests A range of different decision makers may be involved with the person If you need to do something to/for a patient, YOU need to check capacity and best interests 17
Restrictions and restraint The MCA states that someone is using restraint if they: use force or threaten to use force to make someone do something that they are resisting, or restrict a person s s freedom of movement, whether they are resisting or not 18
Appropriate use of.. When it prevents harm & is proportionate response to likelihood & seriousness of harm eg. Stopping a person from leaving ward because they will get run over OK! Restraining a patient in order to take a blood sample, if this will help with diagnosis and enable treatment which will make the patient more comfortable OK! NB. These must be recorded in patient s s notes. 19
Other Key Issues Advance Decisions LPAs and Court appointed Deputies Public Bodies IMCA Criminal Offence Code of Practice Protection for staff and carers DoLS 20
Advance Decisions Advance decisions to refuse treatment Made only by mentally capable people aged 18 and over Can be oral or written (unless relating to life- saving treatment) Must specify the treatment being refused Healthcare professionals are bound by advance decisions to refuse treatment 21
Advance Decisions (cont) Advance decisions refusing treatment for mental disorder may be overridden by the compulsory treatment provisions of the MHA 1983 But advance decisions refusing treatment for conditions unconnected to the mental disorder of a patient liable to be detained or refusing treatment for mental disorder provided on a voluntary basis remain valid and applicable 22
Advance Decisions (cont) A relevant Lasting Power of Attorney will override an advance decision if made after the decision An advance decision can be withdrawn OR - by the individual whilst they have capacity - if they do something which is clearly inconsistent with the advance decision 23
Lasting Power of Attorney Person must be 18 years and over with capacity at the time of making the LPA Gives a named person (or people) power to take decisions, in donor s s best interests, when donor loses capacity to take those decisions Can be about property and affairs or personal welfare Must be registered with Office of the Public Guardian Can include power to take decisions regarding life- sustaining treatment You need to see the registered document and look at what powers the attorney holds 24
Court Appointed Deputy Court of Protection can appoint someone to be the Deputy for a person who lacks capacity Deputy will have power to take particular decisions on behalf of the person lacking capacity may include treatment and care Deputy cannot refuse consent to life-sustaining treatment You need to see the Court order setting out who the Deputy is and what powers they have Court Appointed Deputies for personal welfare are rare! 25
Public Bodies Court of Protection Has jurisdiction relating to the Act Makes declarations, decisions and orders Is concerned with healthcare and welfare Public Guardian Registering authority for deputies and LPA Supervises court appointed deputies Liaises with other agencies 26
IMCA Independent Mental Capacity Advocate MUST be involved when There is no-one one to consult re. an incapacitated person and decisions are being made about serious medical treatment or significant changes of residence Can also be involved when the incapacitated person is involved in adult protection procedures (POVA) or A care review is required and there is no-one one to consult 27
Criminal Offence The Act introduces a new criminal offence of ill-treatment or wilful neglect of a person lacking capacity The Act does not legitimise euthanasia 28
Code of Practice MCA says that staff must have regard to the Code ie.. need to follow it! Gives detailed guidance on all the issues covered by MCA Can be found on UHB intranet, under Mental Capacity 29
Protection for staff and carers Section 5 of MCA confers protection from liability Staff and carers won t t be prosecuted or sued if they provide care or treatment for people who lack capacity to decide for themselves about the matter in question, providing that they comply with MCA 30
Deprivation of Liberty Safeguards (DoLS) Provide a legal framework for caring for adult, mentally disordered, incapacitated people in situations where they are deprived of their liberty in hospitals or care homes Depriving a person of their liberty outside of a legal framework (eg. Criminal justice system, Mental Health Act) is not lawful Court imposes hefty damages if finds DoL has taken place (plus large legal costs...) 31
DoLS contd.. Examples from case law Restraint is used, including sedation, to admit a person to an institution where that person is resisting Staff exercise complete and effective control over care and movement for a significant period Staff exercise control over assessments, treatment, contacts and residence A request by carers for a person to be discharged to their care is refused 32
DoLS Contd.. A decision has been made by the institution that the person will not be released into the care of others or permitted to live elsewhere, unless staff consider it appropriate The person is unable to maintain social contacts because of restrictions placed on their access to other people The person loses autonomy because they are under continuous supervision and control 33
DoLS Contd.. To be eligible for a DoLS authorisation, the person must be assessed by the UHB on 6 grounds be 18 years of age or over have a mental disorder (within the meaning of the Mental Health Act 1983), but including learning disabilities lack capacity to consent to the regime they are living in be eligible (ie( ie.. they are not already subject to Mental Health Act thereby requiring them to be in hospital, live in a certain place, etc) there are "no refusals" in the patient's case (ie( ie.. there is not an advance decision, lasting power of attorney, deputy, Court decision, ion, etc that opposes the regime) it's in the patient's best interests to be looked after in this way and deprived of their liberty (and there is no less restrictive way of looking after him/her) 34
DoLS Contd.. The Supervisory Body (the UHB) can only authorise the DoL if all 6 criteria are met The authorisation lasts for up to a year It can be reviewed The patient will be allocated a Representative An IMCA may be involved Appeal against DoLS can be made to Court of Protection 35
Remember The Act: Sets out the 5 principles all healthcare staff must adhere to Provides a definition and test of lack of capacity Requires consultation with other people to determine best interests Provides protection for staff and carers if they use restraint/restrictions appropriately Gives advance decisions statutory status Clarifies who can take decisions in healthcare and welfare situations Provides for the lawful deprivation of a person s s liberty in hospitals and care homes 36
Julia Barrell Mental Capacity Act Manager 029 2074 3652 WHTN 01872 3652 julia.barrell@wales.nhs.uk UHB intranet site - click on M under A-Z Z of services tab,, then click on Mental Capacity http://www.mentalcapacityact.wales.nhs.uk 37
MCA/ DOL Department Sue Broad Marcelle dos Santos
Mental capacity issues potentially affect everyone. Over 2 million people in England and Wales lack mental capacity to make some decisions for themselves, for example, people with: dementia learning disabilities mental health problems Stroke and head injuries Up to 6 million informal carers, social care and healthcare professionals may provide care or treatment for them. MdS 2013 2
The Deprivation of Liberty Safeguards - DOL s. Whilst there is no legal definition the safeguards focus on some of the most vulnerable people in our society: Those who for their own safety and in their own best interests need to be accommodated under care and treatment regimes that may have the effect of depriving them of their liberty, but who lack the capacity to consent. MdS 2013 3
Simply put.. The department has 25 Best Interests Assessors from health & social care. 7 Sec 12 Doctors who s s experienced is utilised. 2 coordinators and an administrator. MdS 2013 4
The Legal Framework is supported by: 1. Code of Practice. 2. New Office of the Public Guardian. 3. New Court of Protection. 4. Criminal offence. MdS 2013 5
Act sets out a broad framework - the Code supports the framework. Code has legal force and the following must have regard to it: Those with formal powers (attorneys/deputies). Those acting in a professional capacity or who are being paid. Those carrying out research under the act. IMCA S. MdS 2013 6
Process & Referral Referral - Managing Authority DOL/MCA coordinators Authorisation via Supervisory Body IMCA BIA Doctor MdS 2013 7
Notes: The typical length of DOLS authorisations has become shorter. Influenced by the BIAs deliberately wanting to keep the focus and pressure on the service provider (so so that care plans evolve to minimise restrictions as much as possible for the service user). MdS 2013 8
Cont.. Statistics re the DOLS authorisations reveal little about the quality of the assessments / authorisations. More qualitative analysis would be better to help people understand the strengths and weaknesses of their own approach, rather than just how many there are in different areas. MdS 2013 9
Education/Consultation MCA / DOLS team strive to reassure staff support & growth in confidence through training and clear communication they are kept up to date, to know where to go and who to contact to find out more if they need to. There is a need to help empower the care provider to consider reducing the restrictions within individual care plans where there is a concern that the regime may be too restrictive, rather than making a DOLS referral straight away. MdS 2013 10
In practice, it is felt that confidence in decision making is undermined by a perception that the law is complex and fast changing, especially around DOLS. This thinking can discourage some clinical and social care staff from engaging with the issues appropriately or at all. MdS 2013 11
Recent Stats. 70 40 35 30 25 20 15 10 5 0 UHB CARDIFF VALE 60 50 40 30 20 10 0 UHB RES/CARE SOCIAL SERVICES Referals Received April 2012 - March 2013 April 2012 - March 2013: Training hours undertaken by MdS MdS 2013 12