1 Understanding and Managing Huntingdon’s Disease Mental Capacity Act 2005 Julia Barrell MCA Manager Cardiff and Vale UHB

2 Introduction What is the Mental Capacity Act 2005? What is the Mental Capacity Act 2005? 5 Key Principles 5 Key Principles What is Mental Capacity? What is Mental Capacity? 2 Stage Test 2 Stage Test Best Interests and Consultation Best Interests and Consultation The decision maker The decision maker Restraint and restrictions Restraint and restrictions Other Key Issues Other Key Issues

3 Mental Capacity Act 2005 empowers and protects people who lack capacity to make decisions for themselves empowers and protects people who lack capacity to make decisions for themselves puts the needs and wishes of the person at the centre of any decision making process puts the needs and wishes of the person at the centre of any decision making process brings clarity to decision making brings clarity to decision making protects incapacitated people but also carers and professionals protects incapacitated people but also carers and professionals

4 Scope of the Act affects people aged 16 and over affects people aged 16 and over At any one time, about 2 million people have impaired mental capacity At any one time, about 2 million people have impaired mental capacity And 6 million people care for them And 6 million people care for them

5 Scope of the Act contd.. Includes people incapacitated by: Dementia Dementia Physical illness or its treatment Physical illness or its treatment Learning disability Learning disability Brain injury or stroke Brain injury or stroke Mental disorder Mental disorder Substance misuse Substance misuseOr Anyone planning for the future Anyone planning for the future

6 Five Key Principles A presumption of capacity A presumption of capacity Support to make decisions Support to make decisions Right to make unwise decisions Right to make unwise decisions Best interests Best interests Least restrictive intervention Least restrictive intervention

7 What is Mental Capacity? Mental capacity is the ability to make a decision Mental capacity is the ability to make a decision Capacity can vary over time Capacity can vary over time Capacity may well vary in relation to the decision required Capacity may well vary in relation to the decision required An individual lacks capacity if they are unable to make a particular decision at a specific time An individual lacks capacity if they are unable to make a particular decision at a specific time

8 Two stage Capacity Test Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain? Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain? Is the impairment or disturbance sufficient that the person lacks the capacity to make that particular decision? Is the impairment or disturbance sufficient that the person lacks the capacity to make that particular decision?

9 Capacity Test contd.. A person is unable to make a decision for himself if he is unable: to understand the information relevant to the decision to understand the information relevant to the decision to retain that information to retain that information to use or weigh that information, or to use or weigh that information, or to communicate his decision to communicate his decision

10 If person lacks capacity…. No-one can consent to care or treatment on behalf of that person, except No-one can consent to care or treatment on behalf of that person, except A Court appointed Deputy A Court appointed Deputy A donee of a Lasting Power of Attorney A donee of a Lasting Power of Attorney This means that family members, health professionals, etc, cannot consent on behalf of the patient!

11 Best interests Need to weigh up a number of issues, including Medical, welfare, emotional and social issues Medical, welfare, emotional and social issues What the person would have decided, if they still could What the person would have decided, if they still could What other people feel is best for the person What other people feel is best for the person

12 Best Interests Checklist To decide what is in an incapacitated person’s best interests consider: To decide what is in an incapacitated person’s best interests consider: The person’s future capacity The person’s future capacity Their past and present wishes and feelings Their past and present wishes and feelings Beliefs and values likely to influence their decision Beliefs and values likely to influence their decision Other factors that the person would be likely to consider Other factors that the person would be likely to consider

13 Consultation Appropriate individuals have a right to be consulted prior to a best interests decision: Appropriate individuals have a right to be consulted prior to a best interests decision: Anyone named by the incapacitated person Anyone named by the incapacitated person Anyone engaged in caring for the person or interested in his welfare Anyone engaged in caring for the person or interested in his welfare Any donee of a lasting power of attorney Any donee of a lasting power of attorney Any deputy appointed by the court Any deputy appointed by the court

14 Best interests contd. Best interests is NOT what you would want done, if you were the person who lacked capacity Best interests is NOT what you would want done, if you were the person who lacked capacity Best interests is NOT just medical best interests – need to consider emotional, welfare and social issues too Best interests is NOT just medical best interests – need to consider emotional, welfare and social issues too Best interests is NOT what the relatives, etc want (best for the relatives, etc) – it’s what those people think would be best for the person, knowing them as they do Best interests is NOT what the relatives, etc want (best for the relatives, etc) – it’s what those people think would be best for the person, knowing them as they do Best interests is NOT just “substituted judgement” (ie. what the person would have decided) although this is something that needs to be considered Best interests is NOT just “substituted judgement” (ie. what the person would have decided) although this is something that needs to be considered

15 The Decision Maker The person who needs the decision taken is the person who must decide about the patient’s capacity and decide what is in their best interests The person who needs the decision taken is the person who must decide about the patient’s capacity and decide what is in their best interests A range of different decision makers may be involved with the person A range of different decision makers may be involved with the person If you need to do something to/for a patient, YOU need to check capacity and best interests If you need to do something to/for a patient, YOU need to check capacity and best interests

16 Restrictions and restraint The MCA states that someone is using restraint if they: use force – or threaten to use force – to make someone do something that they are resisting, or use force – or threaten to use force – to make someone do something that they are resisting, or restrict a person’s freedom of movement, whether they are resisting or not restrict a person’s freedom of movement, whether they are resisting or not

17 Appropriate use of….. When it prevents harm & is proportionate response to likelihood & seriousness of harm – eg. When it prevents harm & is proportionate response to likelihood & seriousness of harm – eg. Stopping a person from leaving ward because they will get run over – OK! Stopping a person from leaving ward because they will get run over – OK! Restraining a patient in order to take a blood sample, if this will help with diagnosis and enable treatment which will make the patient more comfortable – OK! Restraining a patient in order to take a blood sample, if this will help with diagnosis and enable treatment which will make the patient more comfortable – OK! NB. These must be recorded in patient’s notes.

18 Other Key Issues Advance Decisions Advance Decisions LPAs and Court appointed Deputies LPAs and Court appointed Deputies IMCA IMCA Criminal Offence Criminal Offence Code of Practice Code of Practice Protection for staff and carers Protection for staff and carers DoLS DoLS

19 Advance Decisions Advance decisions to refuse treatment Advance decisions to refuse treatment Made only by mentally capable people aged 18 and over Made only by mentally capable people aged 18 and over Can be oral or written (unless relating to life- saving treatment) Can be oral or written (unless relating to life- saving treatment) Must specify the treatment being refused Must specify the treatment being refused Healthcare professionals are bound by advance decisions to refuse treatment Healthcare professionals are bound by advance decisions to refuse treatment

20 Lasting Power of Attorney Person must be 18 years and over with capacity at the time of making the LPA Person must be 18 years and over with capacity at the time of making the LPA Gives a named person (or people) power to take decisions, in donor’s best interests, when donor loses capacity to take those decisions Gives a named person (or people) power to take decisions, in donor’s best interests, when donor loses capacity to take those decisions Can be about property and affairs or personal welfare Can be about property and affairs or personal welfare Must be registered with Office of the Public Guardian Must be registered with Office of the Public Guardian Can include power to take decisions regarding life- sustaining treatment Can include power to take decisions regarding life- sustaining treatment You need to see the registered document and look at what powers the attorney holds You need to see the registered document and look at what powers the attorney holds

21 Court Appointed Deputy Court of Protection can appoint someone to be the Deputy for a person who lacks capacity Court of Protection can appoint someone to be the Deputy for a person who lacks capacity Deputy will have power to take particular decisions on behalf of the person lacking capacity – may include treatment and care Deputy will have power to take particular decisions on behalf of the person lacking capacity – may include treatment and care Deputy cannot refuse consent to life-sustaining treatment Deputy cannot refuse consent to life-sustaining treatment You need to see the Court order setting out who the Deputy is and what powers they have You need to see the Court order setting out who the Deputy is and what powers they have Court Appointed Deputies for personal welfare are rare! Court Appointed Deputies for personal welfare are rare!

22 IMCA Independent Mental Capacity Advocate must be involved when There is no-one to consult re. an incapacitated person and There is no-one to consult re. an incapacitated person and decisions are being made about serious medical treatment or significant changes of residence decisions are being made about serious medical treatment or significant changes of residence Can also be involved when the incapacitated person is involved in adult protection procedures (POVA) or the incapacitated person is involved in adult protection procedures (POVA) or A care review is required and there is no-one to consult A care review is required and there is no-one to consult

23 Criminal Offence The Act introduces a new criminal offence of ill-treatment or wilful neglect of a person lacking capacity The Act introduces a new criminal offence of ill-treatment or wilful neglect of a person lacking capacity The Act does not legitimise euthanasia The Act does not legitimise euthanasia

24 Code of Practice MCA says that paid staff must “have regard” to the Code – ie. need to follow it! MCA says that paid staff must “have regard” to the Code – ie. need to follow it! Gives detailed guidance on all the issues covered by MCA Gives detailed guidance on all the issues covered by MCA

25 Protection for staff and carers Section 5 of MCA confers “protection from liability” Section 5 of MCA confers “protection from liability” Staff and carers won’t be prosecuted or sued if they provide care or treatment for people who lack capacity to decide for themselves about the matter in question, providing that they comply with MCA Staff and carers won’t be prosecuted or sued if they provide care or treatment for people who lack capacity to decide for themselves about the matter in question, providing that they comply with MCA

26 Deprivation of Liberty Safeguards (DoLS) Part of MCA, came into force on 1 st April 2009 Part of MCA, came into force on 1 st April 2009 Provide a legal framework for caring for adult, mentally disordered, incapacitated people in situations where they are deprived of their liberty in hospitals or care homes Provide a legal framework for caring for adult, mentally disordered, incapacitated people in situations where they are deprived of their liberty in hospitals or care homes

27 Remember The Act: The Act: Sets out the 5 principles all healthcare staff must adhere to Sets out the 5 principles all healthcare staff must adhere to Provides a definition and test of lack of capacity Provides a definition and test of lack of capacity Requires consultation with other people to determine best interests Requires consultation with other people to determine best interests Provides protection for staff and carers if they use restraint/restrictions appropriately Provides protection for staff and carers if they use restraint/restrictions appropriately Gives advance decisions statutory status Gives advance decisions statutory status Clarifies who can take decisions in healthcare and welfare situations Clarifies who can take decisions in healthcare and welfare situations Provides for the lawful deprivation of a person’s liberty in hospitals and care homes Provides for the lawful deprivation of a person’s liberty in hospitals and care homes

28 Further information Mental Capacity Act 2005 Code of Practice Mental Capacity Act 2005 Code of Practice Mental Capacity Act booklets Mental Capacity Act booklets ng-the-vulnerable/mental-capacity- act/index.htm

29 Julia Barrell Mental Capacity Act Manager WHTN