Mental Capacity Act Dr J Victoria Evans FMERSA 2016

Background Law Commission report 231 1995 1997 consultation paper & 1999 govt response June 2003 Draft Mental Incapacity Bill 2004 Decision to change name to Mental Capacity Act

general aim of act Balancing - respect for individual autonomy v - need to protect the vulnerable

objectives Allow adults to make as many decisions as they can for themselves & to put them at the centre of the decision making process Allow adults to make advance directives (ADs) before they lose capacity (with safeguards)

objectives II Where there is no AD, all decisions re adults who lack capacity must be in their best interests Decisions about serious medical treatment, accommodation in hospital or care home, where no friends or family to consult, relevant NHS body or LA must appoint an independent Mental Capacity Advocate to support patient (P)

objectives III Protection from legal liability for carers who have honestly & reasonably sought to act in the best interests of person for whom they have cared Research

general points Act extends to England and Wales Scotland: The Adults with Incapacity (Scotland) Act 2000 Omission? No provision for proactive protection of vulnerable people at risk or investigation into provision of services or protective action

Persons who lack capacity S5(1) The principles: A person must be assumed to have capacity unless it is established he lacks capacity 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 A person is not to be treated as unable to make a decision merely because he makes an unwise decision

persons who lack capacity ii An act done, or a 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 made, regard must be had as 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 & freedom of action

definition of lack of capacity S5(2) A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain

Lack of capacity Impairment or disturbance may be temporary or permanent A lack of capacity cannot be established merely by reference to - a person’s age or appearance, or, - a condition of his, or an aspect of his behaviour which might lead others to make unjustified assumptions about his capacity

lack of capacity ii Test for lack of capacity is on the balance of probabilities No power is exercisable in relation to a person under 16 Common law definition of capacity e.g. to make a will or marry, are unaffected

Examples meeting diagnostic test Capacity never attained e.g. severe learning disability Mental illness, learning disability, dementia, brain damage, toxic confusional state Grave physical illness & toxic confusion, impaired consciousness Effects of pain, shock, exhaustion

examples ii Intoxication Unconscious patient

temporary lack of capacity capacitycapacity Must wait until P regains capacity, if this is in P’s best interests

exceptions to over 16 rule Lasting Power of Attorney (LPA) - must be 18 Advance decision - 18 Offence of ill treatment or neglect of mentally incapacitated persons (s44) - no age limit

inability to make decisions s3 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 the information (c) to use or weigh that information as part of the process of making the decision, or, (d) to communicate the decision

this means the test is a FUNCTIONAL test - it relates to a particular decision - it relates to a particular time an individual may lack capacity in relation to decision A but not decision B

s3 COnt. s3(2) Use method of communication appropriate to circumstances s3(3) Retention of information for only a short period does not prevent P from making a decision s3(4) Info relevant to a decision includes info about the reasonable consequences of - deciding one way or another, or, failing to make a decision

consent to medical treatment The doctor or nurse proposing treatment is responsible for the capacity assessment No team decisions! For example, if a psychiatrist or psychologist were asked to assist, they would do so in an advisory capacity

validity of consent Decision of the mentally capable person himself Freely given Uncontaminated by the undue influence of others

level of capacity The more serious the decision, the greater the level of capacity required

problems P who is unwilling to communicate a decision - unless he is deemed to lack capacity (formal assessment) must be deemed to have capacity

best interests s4 Not merely on the basis of (a) person’s age or appearance, or (b) a condition of his, or an aspect of behaviour, which might lead others to make unjustified assumptions about what might be in his best interests

next steps You must take the following steps & consider all relevant circumstances - whether it is likely at some time P will have capacity in relation to the matter and - if it appears likely that he will

next steps ii Must so far as is reasonably practicable, permit and encourage P to participate, or improve his ability to do so, as fully as possible, in any act done for him and any decision affecting him s4(4)

life sustaining treatment Where decision involves (withdrawal or with holding of) life sustaining treatment, D must not be motivated by desire to bring about P’s death

when making a decision Must consider as far as reasonably ascertainable (a) P’s past & present wishes & feelings (especially any written statement made when he had capacity) (b) beliefs & values likely to influence the decision if he had capacity, and (c) the other factors he would likely consider, if he were able to do so

consultation Must be practicable & appropriate to do so (a) named person in these circumstances (b) carer or person interested in his welfare (c) donee of LPA (d) court appointed deputy

best interests test “Reasonable belief” - so objective test It is to be distinguished from substituted judgement

dispute about best interests Options - independent advocate - second opinion (medical treatment) - a formal or informal case conference (medical treatment, social care) - involve formal or informal complaints process (health, social welfare) - mediation or other dispute resolution - final arbiter - COURT OF PROTECTION

documentation of how decision made in best interests Must be kept Show how decision reached Show reasons for reaching decision Record who was consulted Record what particular factors were taken into account

balance sheet approach Factors of actual & possible benefit - weight of potential gains v Factors of actual dis-benefit & possible dis- benefit - weight of potential losses

acts in connection with care or treatment s5 D must take reasonable steps to establish if P lacks capacity in the matter and When doing act, D reasonably believes (i) P lacks capacity re the matter and (ii) it is in P’s best interests that act is done D incurs no additional liability (but this does not mean does not still have liability in tort or criminal liability) Decision by LPA or court deputy takes priority

lasting powers of attorney (LPA) Can only be executed by mentally capable person Now 2 types: - re financial affairs - re welfare (including healthcare) matters Do not have to be held by same person(s)

court of protection Has powers to make declarations - Capacity or otherwise to make a decision - Capacity or otherwise to make decisions about particular matters - Lawfulness or otherwise of any act done or yet to be done - An act includes an omission or course of conduct

court of protection ii Is a Superior Court of Record: High Court retains its inherent jurisdiction

advance decisions: definition AD means a decision made by a person, after he has reached the age of 18, and when he has capacity to do so, so that if (a) at a later time, and in such circs as he may specify, a specified treatment is proposed to be carried out or continued by a person providing healthcare for him, and (b) at the time he lacks capacity to consent in the matter THE SPECIFIC TREATMENT IS NOT TO BE CARRIED OUT OR CONTINUED

AD II Treatment can be specified in layman’s terms but must be specific P may withdraw or alter AD at any time if he has capacity Withdrawal (partial or full) need not be in writing An alteration of an AD need not be in writing (but see s25(5))

ad iii Best interests criterion does not come into play in application of AD as P already identified his best interests when he had capacity AD binding on HCP if valid, even if it leads to death of individual and carers/HCP/relatives all disagree

Information to be included in written ad Is very specific, listed in Code of Practice (9.19) Includes oral AD to one of P’s healthcare team (9.23)

practical points If HCP alerted to possibility an AD may exist, reasonable effort e.g. to contact relatives, GP, should be made to establish if this is the case, but treatment should not be delayed if delay would prejudice P’s health If HCP has conscientious objection to respecting a valid and applicable AD, must ensure the care of P is transferred