1. Mental Capacity Act
Dr J Victoria Evans
FMERSA 2016

2. 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

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

4. 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)

5. 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)

6. 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

7. 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

8. 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

9. 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

10. 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

11. 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

12. 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

13. 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

14. examples ii
Intoxication
Unconscious patient

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

16. 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

17. 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

18. 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

19. 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

20. 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

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

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

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

24. 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

25. 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

26. 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)

27. 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

28. 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

29. 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

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

31. 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

32. 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

33. 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

34. 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

35. 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)

36. 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

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

38. 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

39. 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))

40. 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

41. 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)

42. 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