Presentation on theme: "Mental Capacity Act 2005 Implications for Care and Treatment"— Presentation transcript:
1 Mental Capacity Act 2005 Implications for Care and Treatment Paul HarperMental Capacity Act/DOLS Lead
2 Aims of the training Clarify issues around consent to treatment. Ensure a working knowledge of the Mental Capacity Act.Explore when and how to undertake capacity assessments.Develop a basic understanding of The Deprivation of Liberty Safeguards.
3 ConsentThe starting point is that everyone has the right to determine what happens to their own bodies.(Article 8 ECHR ‘Everyone has the right to respect for his private and family life’)Touching someone without validconsent may constitute the civil orcriminal offence of battery unlessauthorised by the MHA.This could lead to challenges ofnegligence and compensation.
4 Types of Consent Verbal/non verbal Written Implied To be valid it must be;:Given freely without duress.:The patient must have been given sufficient information to understand the implications.:The patient must have the mental capacity to give consent to the treatment or intervention.:Consent can be withdrawn at any point.
5 Adults Children and Young People Consent for adults (over18) governed by common law.“Young People” Aged 16 and 17 are often treated as adults by the courts.Younger children who understand fully what is involved in the proposed procedure can also give consent (although their parents will ideally be involved).In other cases, someone with parental responsibility can give consent on the child’s behalf, unless they cannot be reached in an emergency.
6 What is the Mental Capacity Act 2005 (MCA)? Developed to bring together and integrate existing lawPuts the needs and wishes of a person who lacks capacity at the centre of any decision making process
8 Which staff will be affected by the MCA? People working in a professional capacity, e.g. doctors, nurses, dentists and social workersPeople who are paid to care or support, e.g. home care workers and care assistantsAnyone who is a deputy appointed by the Court of ProtectionAnyone acting as an independent mental capacity advocate (IMCA)Anyone carrying out research involving people who may lack capacity
9 Children and young people The MCA applies to people who are 16 years old or older16 or 17 year olds who lack capacity can be treated under the MCA – their parents should be consulted unless the young person does not wish thisthe Court of Protection can be involved in decisions for someone under 16 if they are likely to still lack capacity at 18People have to be 18 to make LPAs and advance decisions
10 What is mental capacity? Mental capacity is the ability to make a decisionCapacity can vary over timeCapacity can vary over the decision to be madePhysical conditions, such as location, can affect a person’s capacityStaff must not assume a lack of capacity because of a person’s age, physical appearance, condition or an aspect of their behaviour
11 The five core principles (Code of Practice, Chapter 2) Every adult must be assumed to have capacity unless it is proven otherwise.All reasonable steps must be taken to assist person to make the decision themselves.Individuals have the right to make unwise decisions, even those others may consider eccentric.All actions on behalf of those who lack capacity must be in their ‘best interests.Any treatment should be done in the least restrictive manner of the persons basic rights and freedoms.
12 What is lack of capacity? An individual lacks capacity if they are unable to make a particular decisionThis inability must be caused by an impairment or disturbance in the functioning of the mind or brain, whether temporary or permanentCapacity can vary over time and depends on the type of decision
13 Which Patients may this affect ? dementialearning disabilityCVA / brain injurysevere mental illnessanyone planning for the futuretemporary loss of capacity, unconscious because of an accident or anaesthesia or because of alcohol or drugs
14 What triggers an assessment? Staff should start from a presumption of capacity then take into account:the person’s behaviourtheir circumstancesany concerns raised by other people
15 How is capacity assessed? Factors to be considered include:general intellectual abilitymemoryattention and concentrationreasoningverbal comprehension and expressioncultural influencessocial context
16 How to assess capacity (Code of practice, 4.11-4.13) The two-stage test of capacity:is there an impairment of, or a disturbance in, the functioning of the mind or brain?if so, is the impairment or disturbance sufficient to cause the person to be unable to make that particular decision at the relevant time?
17 Questions that must be considered when assessing capacity Does the person have the ability to:understand the information?retain information related to the decision?use or assess the information while considering the decision?communicate the decision by any means?
18 What kind of records will staff need? (Code of Practice, 4.60-4.62) No formal documentation is required for day- to-day decisions or for consent to care.A healthcare professional proposing treatment should record an assessment of capacity in the patients notes or on specific documentation designed for this purpose.
19 Who can be a decision maker? Varies depending on the individual’s circumstances and the type of care or treatment or decision being consideredHealth and social care staff, family and unpaid carers can be decision makers when decisions relate to carrying out an act on behalf of somebody who cannot consentThe person delivering the care or treatment makes the decision about whether to deliver that care or treatmentSection 5 of the MCA gives protection from liability
20 Best interests (MCA, Section 4; Code of Practice, 5.1-5.69) Any decision or act must be in a person’s best interestsWhen making decisions, staff should take account of the following:equal consideration and non-discriminationconsidering all relevant circumstancesregaining capacitypermitting and encouraging participationspecial considerations for life-sustaining treatmentthe person's wishes, feelings, beliefs and valuesthe views of other people
23 Examples of Restraint 1:1 Staffing or close supervision Sedation Bed railsPatient denied access to everyday clothingLocked doors.Patient requests to leave the ward declined
24 RestraintSection 6 (4) of the Act states that someone is using restraint if they:Use force or threaten to use force –to make someone do something that they are resisting ,orRestrict a persons freedom of movement whether they are resisting or not.
25 RestraintIn order for restraint to be lawful the person taking action must reasonably believe that restraint is necessary to prevent harm to the person who lacks capacity.The type of restraint and duration must be a proportionate response to the likelihood and seriousness of harm to the person.
26 Deprivation of Liberty Safeguards (DOLS) Only relevant to patients in registered care homes and Hospitals.Not applicable to patients in their own homes.You may not utilise a level of restraint that would amount to depriving a patient of their liberty.BUT Restraint or restriction does not necessarily result in deprivation.
27 Lasting Powers of Attorney (MCA, Sections 9-14; Code of Practice, Chapter 7) Two different LPAs to cover a range of circumstances:personal welfare (including healthcare)property and affairs (finance)Who can be an attorney?familyfriendprofessional, e.g. lawyerAn attorney must be over 18 years oldAn individual can be an attorney for more than one personStaff should not normally act as attorneys
28 Advance decisionsAn advance decision is prepared when a person has capacityIt is a decision to refuse specified treatment and is bindingOther expressions of an individual’s preferences are not binding but must be consideredStaff must be able to recognise when an advance decision is validAn advance decision must be written, signed and witnessed if life-sustaining treatment is being refusedA relevant LPA will override an advance decision if it is made after the decisionAn advance decision can be withdrawn:by the individual while they have the capacity, orif the individual does something that is clearly inconsistent with the advance decision, orby the decision maker if treatment is now available that was not available when the advance decision was made
29 Independent mental capacity advocates (IMCAs) IMCAs are a local service to represent the interests of:people lacking capacity when making a serious decision about medical treatment or a move, and in some adult protection cases, and ifthey have no one else to speak for them other than paid carers, andtheir care is arranged by their local authority or NHSThe IMCA has a right to information about the person who lacks capacity but is not a decision maker
30 Acting lawfully in connection with care or treatment Section 5 of the MCA provides protection from liability provided that all the MCA requirements are metIncludes acts of:personal care: Dressing, washing, feedinghealthcare and treatment: Diagnostics, Taking blood, Giving medication, providing nursing care.
31 New criminal offences of ill-treatment or wilful neglect (MCA, Section 44; Code of Practice, Chapter 14)New offences apply to:people who have the care of a person who lacks capacityAn attorney under a LPA or EPAA deputy appointed by the CourtCriminal offences can result in a fine and/or a sentence of imprisonment of up to five years
32 Application can be made to the Court of Protection if: On-going decisions may be needed for a person who lacks capacity.To arrange a court appointed deputy.OrA particularly difficult decision is required, such as withdrawing/withholding artificial nutrition and hydration.Disagreements can not be resolved in any other way.
33 Remember.. In emergencies, decisions will need to be made immediately. Where there is doubt asto the appropriateness of treatment, there should be a presumption in favour of providing life-sustaining treatment.
34 IMPORTANT..Where an adult patient lacks the mental capacity (either temporarily or permanently) to make a decision for themselves;NO ONEIS ABLE TO GIVE CONSENT TO THE EXAMINATION OR TREATMENT ON THEIR BEHALF…Unless; they have a Welfare Lasting Power of Attorney or Deputy of Court of ProtectionHowever you could make a best interest decision for this person under the MCA 2005
35 Paul Harper Mental Capacity Act/ DOLS Lead East Lancs Hospitals Trust Family Care DivisionChildren's Out-Patient's DepartmentBurnley General HospitalCasterton AvenueBurnley BB10 2PQ