The Mental Capacity Act How this relates to the NMC Code Mental Capacity Act Project Team

The NMC Code We’ll look at how the MCA relates to the NMC Code [Supporting document to use as guide for evidence gathering ]

Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.1 – 2.6, 3.3, 3.4, 4.1 – 4.4, 5.1 – 5.5, 6.1, 7.1 – 7.4, 9.3, 10.1 – 10.6, 17.1 – 17.3, 20.4, 22.3 The NMC Code The relevant parts of the NMC Code will be indicated in boxes The colour will correspond to the colour of on of the four themes the Code is centred around: Prioritise people Practise effectively Preserve safety Promote professionalism and trust

every adult has the right to make their own decisions Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.2 – 2.6, 4.1, 4.3, 20.4

Empowerment It’s all about the POWER in empowerment and who holds that power. Empowerment is supporting and enabling the people we work with to have as much control over the decision in their life as possible. Relevant parts of the NMC Code: 1.1, 1.5, 2.2 – 2.6, 3.3, 4.3, 6.1, 7.1 – 7.4, 20.4

Care & Treatment decisions We will be supporting our patients with important decisions about their care, treatment and / or accommodation. What do out patients’ need in order to be able to make informed decisions about their care, treatment and / or accommodation? Relevant parts of the NMC Code: 1.1, 1.5, 2.2 – 2.6, 3.3, 4.3, 6.1, 7.1 – 7.4, 20.4

…it’s all about Our patients need information about their options and the potential risks and benefits of each option and how it might affect them. Information is about effective communication and our ability to communicate important information to another human being How do we make our communication with our patients the most effective? How do we make sure the information we are giving our patients maximises the potential for them to make an informed decisions and be in control? Relevant parts of the NMC Code: 1.1, 1.5, 2.2 – 2.6, 3.3, 4.3, 6.1, 7.1 – 7.4, 20.4

? How do we know if our patients have understood?

Consent – how patients exercise their control To ensure our patients are giving informed consent, we need to ensure they understand the information about their care, treatment and / or accommodation. We need to ask them to relay information about their options and decision to us in their own words. Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.2 – 2.6, 3.3, 4.1 – 4.3, 7.1 – 7.4, 20.4

Implied vs. informed consent Difference between implied and informed consent: Having the capacity Understanding the information Compliance and capacity are not the same thing, just because a patient agrees or allows you to carry our a treatment, it doesn’t mean that they understand, have capacity and have given informed consent Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.2 – 2.6, 3.3, 4.1 – 4.3, 7.1 – 7.4, 20.4

? What if a patient is unable to give informed consent, because of an impairment in the functioning of their mind or brain?

If the patient lacks capacity to consent: The decision is made on their behalf in their best interests Unless there is a valid and applicable advance decision to refuse treatment Decision must be the least restrictive option of the person’s rights and freedoms What happens to that POWER? Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.1 – 2.6, 3.3, 3.4, 4.1 – 4.4, 5.1 – 5.5, 6.1, 7.1 – 7.4, 9.3, 10.1 – 10.6, 20.4,

The 5 principles

The principles: 1. The assumption of capacity We always start by assuming everyone we work with has capacity to make their own decisions, until there is evidence to suggest otherwise This principle protects the right of adults to make their own decisions If we claim someone we are working with lacks capacity we must provide proof – this proof is the two stage assessment of capacity, it is up to us to prove the person lacks capacity it is not up to them to prove they have capacity Therefore we are required to gain our patient’s consent to provide care, treatment or support, we must respect the rights of our patient’s to refuse treatment if they have capacity to decide. Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.2 – 2.6, 4.1, 4.3, 20.4

The principles: 2. Maximising capacity Before it can be claimed that someone lacks capacity everything practical must be done to enable them to make a decision for themselves Using different forms of communication / providing information in an accessible format Having a structured programme to improve the person’s capacity (i.e. through education) Treating any medical condition that may be impairing the person’s capacity In emergency and urgent situations we may not have time to provide additional support and information and may have to make an assessment of the patient’s capacity there and then Relevant parts of the NMC Code: 1.1, 1.5, 2.2 – 2.6, 3.3, 4.3, 6.1, 7.1 – 7.4, 20.4

The principles: 3. People can make unwise decisions A person shouldn’t be treated as unable to make a decision, because the decision they make appears unwise to others We all have different values, wishes and beliefs We shouldn’t confuse an assessment of the person’s capacity with an assessment of what we believe is in their best interests, the assessment isn’t on the basis of whether the person choose what you think is the right choice Different people give different weight to different things Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.2 – 2.6, 3.3, 4.1 – 4.4, 5.1 – 5.5, 6.1, 7.1 – 7.4, 9.3, 10.1 – 10.6, 20.4

The principles: 4. Act in the best interests of people who lack capacity Follow the best interest checklist Best interests is a person centred process which should focus on the values, wishes and beliefs of the person and what they would consider if they were making a decision for themselves The exception to the best interests principle is if the person has made a valid advance decision to refuse treatment, or is being involved in research, as other safeguards apply in these circumstances If someone holds a valid and applicable Lasting Power of Attorney (LPA) they may be acting as the decision maker, however they must still act in the best interests of the person Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.1 – 2.6, 3.3, 3.4, 4.1 – 4.4, 5.1 – 5.5, 6.1, 7.1 – 7.4, 9.3, 10.1 – 10.6, 20.4,

The principles: 5. Act in the least restrictive way of people who lack capacity Before the decision is made consideration should be given to whether there is a less restrictive course of action Best interests decision making is restrictive as the person is no longer in control over the decision Can we avoid making a decision on the person’s behalf? Can we delay the decision so that the person can make it for themselves if they can regain capacity? Can we act in accordance with their views? How can we facilitate the person having the most amount of personal freedom? Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.1 – 2.6, 3.3, 3.4, 4.1 – 4.4, 5.1 – 5.5, 6.1, 7.1 – 7.4, 9.3, 10.1 – 10.6, 20.4,

The two stage assessment of capacity

The Act defines a lack of capacity as:  At the time a decision needs to be made, a person is unable to make a decision for themselves because of an impairment or a disturbance in the functioning of their mind or brain Under the Act capacity is always time and decision specific  some people may be unable to make one decision, but retain capacity for other decisions  Capacity can fluctuate and change over time Start with a blank canvass and the assumption that the person has capacity to make the decision Think about the information and any support the person will need to maximise the opportunity for them to make a decision for themselves Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.2 – 2.6, 3.3, 4.1 – 4.4, 5.1 – 5.5, 6.1, 7.1 – 7.4, 9.3, 10.1 – 10.6, 20.4

The two stage assessment of capacity 1.The diagnostic test Is there an impairment or a disturbance in the functioning in the mind or the brain, that is affecting the person’s ability to make a decision For example: mental illness, cognitive impairment such as dementia or Alzheimer’s disease, learning disability, any physical or medical conditions that cause confusion, drowsiness or loss of consciousness, delirium, acquired brain injury etc. 2.The functional test A person is unable to make a decision if they cannot do of any one or more of the following: i.Understand the information ii.Retain the information iii.Use and weigh up the information as part of the decision making process iv.Communicate their decision Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.2 – 2.6, 3.3, 4.1 – 4.4, 5.1 – 5.5, 6.1, 7.1 – 7.4, 9.3, 10.1 – 10.6, 20.4

The two stage assessment of capacity Remember stages 1 & 2 are part of the same assessment, you must be able to show that the person lacks capacity in the functional test, because of the impairment identified in the diagnostic test The outcome of the assessment is that the person will either:  Have capacity to make the decision - in which case we must obtain the patient’s consent and respect their decision Or  Lack capacity to make the decision, therefore they are unable to give informed consent and decisions are made in their best interests Consider if the person’s capacity is fluctuating and whether they could regain capacity in the future - if possible delay the decision until the person can make the decision themselves Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.2 – 2.6, 3.3, 4.1 – 4.4, 5.1 – 5.5, 6.1, 7.1 – 7.4, 9.3, 10.1 – 10.6, 20.4

Making decisions in a person’s best interests

Best Interests Checklist: Encourage participation Identify all the relevant circumstances Find out the person’s views Avoid discrimination Assess whether the person might regain capacity - consider whether the person is likely to regain capacity (e.g. after receiving medical treatment or further support). If so, can the decision wait until then, so the person can be in control? Decisions concerns life sustaining treatment Consult others – people who are important to the person, may need to involve an IMCA if person meets criteria Avoid restricting the person’s rights Take all this into account Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.1 – 2.6, 3.3, 3.4, 4.1 – 4.4, 5.1 – 5.5, 6.1, 7.1 – 7.4, 9.3, 10.1 – 10.6, 20.4,

When an Independent Mental Capacity Advocate (IMCA) should be involved IMCAs work with and act as an independent safeguard for people who have been assessed to lack capacity and have no appropriate family or friends that can support, represent them and be consulted. There are instances when an IMCA must be involved if the person meets this criteria:  Serious medical treatment  Long term changes of accommodation  The Deprivation of Liberty Safeguards (DoLS) There are further instances when an IMCA can be involved if the person meets this criteria and it would be of benefit to them:  Safeguarding or Adult Protection (this is the only instance when an IMCA can be instructed regardless of the appropriateness of family and friends)  Care reviews Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.1 – 2.6, 3.3, 3.4, 4.1 – 4.4, 5.1 – 5.5, 6.1, 7.1 – 7.4, 9.3, 10.1 – 10.6, 20.4,

Balance sheet approach to best interests: A ‘Balance Sheet’ approach is a way of weighing up the different factors that are relevant in a particular decision. The approach is to complete a balance sheet of the positives and negatives for each of the options that are available to a person. A Balance Sheet is a way of making decisions that are open and transparent, by demonstrating how a decision was made and the factors that were considered. Look for any ‘magnetic factor’ that is capable of determining the outcome of a balancing process. A magnetic factor does not only mean that that element is given distinguished weight in the balance sheet but also ‘pulls’ the evaluation of all elements in a specific direction and thus determines the outcome of the decision. Option: Positives / benefitsNegatives / risks Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.1 – 2.6, 3.3, 3.4, 4.1 – 4.4, 5.1 – 5.5, 6.1, 7.1 – 7.4, 9.3, 10.1 – 10.6, 20.4,

Planning ahead

Advance decisions to refuse treatment Enables someone aged 18 and over who has capacity at the time, to refuse a specific medical treatment for a time in the future when they may lack capacity If it is valid and applicable it has the same effect as a decision made by a person who has capacity There are special rules for Advance Decisions to refuse life sustaining treatment An advance decisions cannot be used to demand specific treatment, Cannot refuse basic shelter, food and warmth Information about Advance Decisions to Refuse Treatment: Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.1 – 2.6, 3.3, 4.1 – 4.3, 7.1 – 7.4, 9.3, 10.1 – 10.6, 17.1 – 17.3, 20.4

Lasting Power of Attorney (LPA) Enables someone aged 18 and over who has capacity at the time, to give someone they trust the legal authority to make decisions on their behalf, if they lack capacity for some reason in the future Must be registered with Office of the Public Guardian (OPG) Two types:  Property and Affairs  Personal Welfare You can contact the OPG to find out if there are any registered Powers of Attorney: You can contact the OPG if you have concerns about an attorney or deputy (as well as submitting a multi-agency safeguarding alert): Government Web Portal for an overview of Lasting Powers of Attorney: Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.1 – 2.6, 3.3, 4.1 – 4.3, 7.1 – 7.4, 9.3, 10.1 – 10.6, 17.1 – 17.3, 20.4

Lasting Power of Attorney (LPA) Property and Affairs –  Can manage any aspect of the person’s finances and property  Can be used when the person still has capacity or when they lose capacity (this is up to the person registering the LPA)  The person making the LPA can add restrictions if there are certain decisions they don’t want their attorney to be able to make Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.1 – 2.6, 3.3, 4.1 – 4.3, 7.1 – 7.4, 9.3, 10.1 – 10.6, 17.1 – 17.3, 20.4

Lasting Power of Attorney (LPA) Personal Welfare –  Can make decisions about the person’s accommodation, care and treatment  Can only be used when the person lacks capacity for the specific decision  The person making the LPA can add restrictions if there are certain decisions they don’t want their attorney to be able to make  Unless the person writing the LPA explicitly gives their attorney that authority the attorney cannot consent to or refuse life sustaining treatment or overrule a valid and applicable advance decision made by the person Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.1 – 2.6, 3.3, 4.1 – 4.3, 7.1 – 7.4, 9.3, 10.1 – 10.6, 17.1 – 17.3, 20.4

Advance care planning: Other advance expressions of wish… Living wills Advance directives About Me or other person centred planning tools Can specify the care, treatment, support and accommodation the person would like – not legally binding but can be very useful to ensure that the person receives person centred care, treatment and support. They can also help us to know what decision the person may have made if they had capacity, what things are important to them and what things they would consider in relation to the decisions in their lives. Relevant parts of the NMC Code: 1.1, 1.3, 1.5, 2.1 – 2.6, 3.3, 4.1 – 4.3, 7.1 – 7.4, 9.3, 10.1 – 10.6, 17.1 – 17.3, 20.4

Case study:

Questions?

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