Mental Capacity Act Working Towards Implementation

The Mental Capacity Act (MCA) 2005 The implementation is as follows, from April 2007: The Department of Health introduce the Independent Mental Capacity Advocates (IMCAs) The ill treatment or neglect of a person who lacks capacity has become a criminal offence The Code of Practice for the Act is available From October 2007 the remainder of the Act including the Court of Protection and the Office of the Public Guardian will begin.

Why we needed the Act There is no legal basis for next of kin There is no current mechanism for a person to nominate another to consent to treatment on their behalf, or to be consulted about their treatment? That as the law stands, if you lack capacity in the future there is no statutory mechanism whereby you can state your wishes for your future care with confidence that your wishes will be taken into account?

continued…… Current common law lacks consistency People’s autonomy not always respected People can be viewed as incapable because of diagnosis No clear legal authority for people who act on behalf of a person lacking mental capacity Limited options for people who want to plan ahead for loss of mental capacity No right for relatives and carers to be consulted Enduring Powers of attorney seen as open to abuse

Which Patients are Affected? Mental capacity could affect anybody Over 2 million people in England and Wales lack mental capacity to make some decisions for themselves Up to 6 million family carers, carers, health and social care staff

Which Staff are affected? MCA applies to all people making decisions for or acting on behalf of someone Staff are legally required to have regard to the Code of Practice The person delivering the treatment or nursing care makes the decision about whether to deliver it, even though the treatment may have been decided by someone else

What is Mental Capacity? Lack of capacity The act is intended to assist and support people who lack capacity and to discourage anyone who is involved in caring for some-one being overly restrictive or controlling Provides a legal framework for acting and/or making decisions on behalf of people who cannot make decisions for themselves

Principles of the Act (Section 1) Assume a person has capacity unless proved otherwise Do not treat people as incapable of making a decision unless you have tried all you can to help them Do not treat someone as incapable of making a decision because their decision may seem unwise

Implications for Practitioners Information, training and knowledge of Code of Practice Understanding what is an assessment of capacity and how to determine best interests Being aware someone may have an Lasting Power of Attorney, an advance decision, or written statement of wishes and feelings Do things or, take decisions for people without capacity in their best interests Before doing something to someone or making a decision on their behalf, consider whether you could achieve the outcome in a less restrictive way

Who may lack capacity? (Section 2) For the purposes of this Act, a person lacks capacity in relation to a matter if he/she: 1.has an impairment of or disturbance in the functioning of the mind or brain – diagnostic test. and 2. the impairment is sufficient that he lacks capacity for a particular decision – decision specific Can be permanent or temporary.

Assessing Capacity A person’s age, appearance, condition or behaviour does not by itself establish a lack of mental capacity The Code of Practice gives guidance to staff about how to assess including how information could be given and how to help the person to communicate Assessment of capacity should be specific to the decision needing to be made at the particular time A test of Capacity is outlined

Ability to make decisions Act says in 3(1)….a person is unable to make a decision for himself if he is unable : a)to understand the information relevant to the decision b)to retain that information c)to use or weigh that information as part of the process of making that decision, or d)to communicate his decision (whether by talking, using sign language or any other means).

‘Best Interests’ – section 4 All decisions must be made in the best interests of the person who lacks capacity The person must: involve the person who lacks capacity have regard for past and present wishes and feelings, especially written statements consult with others who are involved in the care of the person there can be no discrimination

Provision of Care and Treatment Assessment of capacity is an integral part of any assessment about care or treatment If a person has no welfare LPA or advance decision to refuse treatment they can still be provided with the care or treatment they need The person providing the care or treatment decides what is in their best interests

Acts affected could include: Administering medication/injections Medical treatment Nursing care Assistance with physical or personal care Emergency procedures

Emergency Situations Act allows care and treatment to be given as almost always in the persons best interests to give urgent treatment without delay Exception: when the person giving treatment is satisfied an advance decision to refuse treatment exists

Making Decisions about Care and Treatment Staff should demonstrate that 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 their best interests.

Recording All staff involved in the care/treatment of a person who may lack capacity should record why they had a ‘reasonable belief’ and how they determined ‘best interests’ decision making. This should be on the PRF Staff may need guidance on keeping adequate records to explain their actions i.e. why they had a reasonable belief of lack of capacity

Restraint Staff will be protected from liability if they: Reasonably believe the person lacks capacity That it needs to be done in their best interests That it is necessary to protect them from harm It must be proportionate and reasonable

Patients who may Plan Ahead Lasting Powers of Attorney Advance Decisions to Refuse Treatment ‘Statements of wishes and feelings’

Lasting Powers of Attorney The Act enables people to appoint someone to make decisions on their behalf for a time when they may lack capacity. There are two types of LPA –‘Property and affairs’ which replaces the current Enduring Power of Attorney –‘Personal welfare’ which is a new way to appoint someone to make health and welfare decisions A person can only make an LPA when they have capacity

Lasting Powers of Attorney When a ‘donor’ makes a LPA, they must understand the importance of the document and the power they are giving It must be registered with the Office of the Public Guardian Welfare LPAs are not active until the person lacks capacity

Lasting Powers of Attorney If the person lacks capacity and has a welfare LPA, they will be the decision maker on all matters relating to that persons care and treatment unless the LPA specifies limits LPAs have to act in the persons best interests If the decision is about life-sustaining treatment, the LPA will only have the authority to make the decision if it specifies this. Detailed guidance is available in the Code of Practice

Advance Decisions to Refuse Treatment (ADRTs) Allows refusal of specified treatment in advance Must state what treatment and in what circumstances Only come into effect when the person lacks capacity

Advance Decisions The Advance Decision must be Valid Applicable Advance decisions do not need to be in writing except for decisions relating to life sustaining treatment A local Guidance Document has been produced by the Mid Trent Cancer Network

Statements of wishes and feelings In the absence of an advance decision, people’s views and wishes, whether written on not, should be used to assist in planning appropriate care and ‘best interests’ decision making. Any knowledge about wishes and feelings is important but not legally binding in the same way as an advance decision

Scenario – Bess Bess is a 78 yr old widow who lives with her son and daughter in law. Bess has dementia, is hard of hearing and her ability to understand information varies day to day. In the last 2 weeks Bess has collapsed twice. GP thinks she may need a pacemaker so refers to a cardiologist for an assessment. Before the appointment arrives, Bess collapses at home. An ambulance is called but when it arrives, she has recovered and refuses to get into the ambulance. What should the ambulance crew do? Discuss…..

Scenario - Michael You are called to attend Michael who is a man with severe Parkinson’s Disease. Michael is unconscious and his breathing is very laboured. A neighbour tells you that Michael has informed her that in such circumstances, he does not wish to be resuscitated and she thinks he may have written this down. What factors do you need to consider? Discuss…..

Resources Training materials available: MCA Poster – issued to each Ambulance Station MCA Session within Corporate Induction & New Courses Advance Decisions to Refuse Treatment (ADRT) Modular Training Programme is available on website: The full text of the Act and the Code of Practice is available on website address:

Summary of Core Areas to Consider Staff application of the principles, assessment, using a ‘best interest’ checklist and decision-making Emergency situations Advance decisions to refuse treatment Personal Welfare Lasting Powers of Attorney Restraint