Mental Health Capacity Act Guidance In what situations is it legal to make a decision on someone else’s behalf? What are the processes you should go through in considering this? How should you decide what is in someone’s “Best Interest”? Barney Wells.

Introduction - Own background - Easl - “Saving Lives” project - Mental Capcity Act Guidance for Homeless Link

We all have the right to make our own decisions – even bad decisions. We should not make decisions on behalf of others unless specific circumstances are met. But if there is a reason to believe that someone’s ability to make a decision is impaired by “an impairment of, or a disturbance of, the mind or brain” we should give this due consideration. If someone does “lack capacity” you must consider what is in their “best interest” – this does not simply mean what we would do in their position. Show your workings!

Example 1 - Kate has a brain injury and struggles to process information. - She lives in a supported project and has a long-term keyworker, Laura. - Kate would benefit from going to a day centre to increase her social interaction and reduce isolation, but isn’t able to make this decision for herself. - Laura is able to use the processes of the MCA to establish whether Kate can make the decision or not, and then make a Best Interests decision for her if she isn’t able. - Laura can use her in depth knowledge of Kate’s likes and dislikes to ensure that the decision made is what Laura would have decided if she was able to do so.

Example 2 - Jane lives in a hostel where Brian works nights. - Brian is aware that she has a history of complex trauma, difficulty managing her emotions, and can act impulsively when intoxicated in ways she regrets when sober. - At handover Brian is told that Jane had some upsetting news – and has handed her meds to staff saying she feels unsafe. - Later she comes into the office, intoxicated, and demands her meds. - Brian refuses to give them to her. - As well as talking to Jane then and there, he also writes a note explaining his reasons that refers to the MCA.

Example 3 - Harry is a rough sleeper. - An outreach worker has attempted to work with him for many months, he observes him to often appear distracted and that its difficult to follow what he says. - Concerns increase that he is neglecting himself in terms of diet and health – he accepts no assistance. - The outreach team use the MCA screening tool to consider and evidence their concern that his capacity to make decisions around declining shelter might be impaired. - They use the completed form to facilitate a discussion with MH services about coming to carry out an assessment.

Background to Mental Capacity Act (MCA) ‘The existing law relating to decision-making on behalf of mentally incapacitated adults is fragmented, complex and in many respects is out of date. There is no coherent concept of their status, and there are many gaps where the law provides no effective mechanism for resolving problems’ (Law Commission 1991) Just serves as a rationale as to why the MCA was developed. To provide a more objective framework to assess Mental capacity

MCA - Overview A functional test of capacity “Best Interest” approach to decision making Powers of Attorneys / Advance decisions Deprivation of Liberty Safeguards Court of Protection Independent Mental Capacity Advocates Brief overview of MCA. The tool is only concerned really with the functional test, and to some extent the BI approach. Functional test ‘the approach of defining a person as incapacitated only in relation to a particular decision at a particular time’

MCA - The Principles 1 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 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. 1)But on the first principle highlight that if there is reason to believe someone may lack capacity their capacity should then be tested 2) Highlight that the assessment tool asks the outreach worker to evidence all the steps that they have taken. 3) although an unwise decision may provide some of the rationale for thinking someone may lack capacity which may then trigger an assessment of capacity.

MCA –The Principles 2 An act done, or decision made, under this Act 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. All pretty much common sense and similar to the MHA

Capacity Test Decision Specific Time Specific Capacity Test is made in the person’s best interest. Who is best placed to carry this out? “The MCA is designed to empower those in health and social care to do capacity assessments themselves, rather than rely on expert testing by psychiatrists or psychologists” Here highlight that as the MCA tool isn’t being used to actually take action in the person’s best interest the time specific part isn’t relevant although the assessment would need to be up to date as to their current presentation. The MCA suggests time should be given where possible to allow someone to regain capacity before making the decision. If someone is intoxicated with drugs and alcohol the outreach worker will need to say why it is not appropriate to wait for them to sober up.

Stage1 - What is the decision? - Is the person unable to make the decision at the time it needs to be made? - Is this inability as a result of an impairment of the mind or brain? Only in the balance of probabilities and if you have reason to believe than you should go forward and test capacity.

Stage 2 Functional Test of Capacity 1. Understand the information involved in making the decision. Again each of these is in the balance of probabilities. If someone is unable to demonstrate that they understand it is unlikely that they will be able to retain or use and weigh up so there will be some repetition. Use and weigh up. This is where the person can’t show they understand the pro’s and cons of their decision. It might be that there is a discrepancy between what they say they want and what is actually happening. Where their reasoning doesn’t ring true it should be explored further.

Stage 2 Functional Test of Capacity 2. Retain the information long enough to make the decision. Again each of these is in the balance of probabilities. If someone is unable to demonstrate that they understand it is unlikely that they will be able to retain or use and weigh up so there will be some repetition. Use and weigh up. This is where the person can’t show they understand the pro’s and cons of their decision. It might be that there is a discrepancy between what they say they want and what is actually happening. Where their reasoning doesn’t ring true it should be explored further.

Stage 2 Functional Test of Capacity 3. Use or weigh up the information to make the decision. Again each of these is in the balance of probabilities. If someone is unable to demonstrate that they understand it is unlikely that they will be able to retain or use and weigh up so there will be some repetition. Use and weigh up. This is where the person can’t show they understand the pro’s and cons of their decision. It might be that there is a discrepancy between what they say they want and what is actually happening. Where their reasoning doesn’t ring true it should be explored further.

Stage 2 Functional Test of Capacity 4. Communicate their decision. Again each of these is in the balance of probabilities. If someone is unable to demonstrate that they understand it is unlikely that they will be able to retain or use and weigh up so there will be some repetition. Use and weigh up. This is where the person can’t show they understand the pro’s and cons of their decision. It might be that there is a discrepancy between what they say they want and what is actually happening. Where their reasoning doesn’t ring true it should be explored further.

Someone lacks capacity if they “fail” any of these tests. But remember these principles 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.

Then remember these principles - 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. - An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.

Best interest checklist – 1 Encourage the person to take part as much as possible Identify all relevant circumstances Find out the person's past and present wishes, feelings, beliefs, values and any other factors they would be likely to consider if they had capacity, including any advanced statements Do not make assumptions based on the person's age, appearance, condition or behaviour Assess whether the person might regain capacity

Best interest checklist – 2 6. If the decision concerns life-sustaining treatment then the best interests decision should not be motivated by the desire to bring about the person's death 7. Consult with others where it is practical and appropriate to do so.  This includes anyone previously named as someone to be consulted; anyone engaged in caring for the person; close friends, relatives or others with an interest in the person's welfare; any attorney and any Deputy appointed by the Court. 8. Avoid restricting the person's rights by using the least restrictive option 9. Abide by any valid advanced decision

Other relevant topics… Help line 020 3291 4184 http://www.pathway.org.uk/services/mental- health-guidance-advice/