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The Mental Capacity Act 2005

An Introduction

Nicky Griffin MCA/DoLS Lead Practitioner

Torbay and Southern Devon Health and Care NHS Trust

May 2015

To gain an overview of key aspects of the Act

To think about how the Act applies to your practice

To think about what to do next.

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Objectives

Think about your week so far

What decisions have you made?

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WHAT IS THE MCA 2005? WHAT IS THE MCA 2005?

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A fantastic tool to help to work out:

-Who can make decisions for themselves

-Who can’t make their own decisions

-How to make decisions for people who can’t decide for themselves.

-It protects the rights of people who can’t make their own decisions

-It protects people who need to make decisions for them

-It helps people to be clear that they can make their own decisions

It is the law... so everyone needs to be clear how to use it.

-People aged 16 years and over and Living in England or Wales

Covers

-Day to day decisions such as what to wear, what to eat, where to live

-Life changing decisions such as serious medical treatment and financial and property decisions

Not covered

-Consenting to marriage or civil partnership

-Consenting to have sexual relations

-Consenting to divorce or dissolution of civil partnership

-Consenting to a child being placed for adoption or an adoption order

-Discharging parental responsibility in matters not relating to property

-Giving consent under Human fertilisation and Embryology Act 1990

-Treatment of mental disorder (people under part 4 of the MHA 1983)

-Voting rights

Nothing in the Act is to be taken to affect the law relating to murder, manslaughter or assisting suicide.

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Most of the Act applies to people aged 16/17 year olds

There are three exceptions:

-Must be 18+ to make a Lasting Power of Attorney

-Must be 18+ to make an Advance Decision to refuse medical treatment

-The Court of Protection may only make a statutory will for a person age 18+

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-Assumption of capacity unless proven otherwise.

-Do not treat people as incapable of making a decision unless you have tried all you can to help them without success.

VERY IMPORTANT.

- Do not treat someone as incapable of making a decision because their decision may seem unwise.

-An act done, or decision made, under this Act for, or on behalf of a person lacking capacity, must be done or made in their best interest

-Before doing something to someone or making a decision on their behalf consider whether you could achieve the outcome in a less restrictive way.

There is a statutory ‘Code of Practice’ providing practical guidance7

- Practitioners must consider the MCA 2005 in all situations where consent would normally be sought, but where there is reason to doubt the person has capacity to consent.

-Section 5 of the Act allows carers, healthcare professionals and social care staff to carry out tasks without fear of liability.

-The aim is to give a legal backing for acts that need to be carried out in the best interest of the person who lacks capacity to consent.

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The House of Lords Post Legislative Scrutiny Report

(13th March 2014)

Comments

-The empowering ethos of the Act has not been widely implemented.

-Capacity is not always assumed

-Capacity Assessments are not often carried out and the quality of them is often poor.

-Supported decision making and the adjustments required are not well imbedded

-Concept of unwise decision making faces institutional obstruction due to prevailing cultures of risk aversion ( social care) and paternalism

( health)

-Best Interest decision making is not undertaken in the way set out in the Act

-The less restriction option is not always considered

- The wishes, thoughts and feelings of the individual are not routinely or adequately considered.

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‘ Valuing every Voice, respecting every right. Making the case for the Mental Capacity Act 2005’ (June 2014)

Some key responses include:

-Increasing awareness of the Act

-Promoting implementation and professional training

-Closer scrutiny and monitoring

-Increased use of Independent Mental Capacity Advocates

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“a person lacks capacity in relation to the 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 disturbance in the functioning of the mind or brain”

Time Specific Capacity relates to a specific moment in time and may change over time (capacity can fluctuate, temporary or

long term…improves or deteriorates)

Decision Specific Capacity relates to a specific decision and may vary depending on the decision

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DEFINING CAPACITY

Stage 1.

The Diagnostic Test

Is there any reason to doubt a person’s capacity to make the required decision?

This is where you start to evidence your doubt by considering the following:

Is there an impairment of, or disturbance in the functioning of the person’s mind or brain?

This stage must be completed.

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ASSESSING CAPACITY

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Communicate the decision

Use or weigh the information as part of the decision making process

Retain the information

Understand the information relevant to the decision

A ‘no’ to any of the 4 sections will indicate a lack of capacity.

STAGE 2: (Functional Assessment)Concentrates on the specifics of the decision to be made.

Can the person:

-The person who wishes to take some action in connection with the person’s care or treatment, or who is contemplating making a decision on the person’s behalf.

This may mean that it is you.

-Staff are not expected to undertake formal assessments of capacity for day to day decisions, such as what to wear or eat etc.

-Health and Social Care staff and or relevant experts must be involved when an assessment and or decision has particularly significant consequences, such as:

-It will impact on the person’s quality of life

-Within complex cases or where there is a dispute

-Where there may be legal consequences

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WHO ASSESSES CAPACITY?

-Do you work with people aged 16 +?

-Do you work with people aged 16 + who may experience either impairment or disturbance in the functioning of the mind or brain, and find decision making difficult ?

-Currently, how do you decide whether a person is able to make informed decisions when you are seeking their consent for e.g. with their care plans, health care, budget plan, accommodation etc.??

-What legal framework do you currently implement when supporting people age 16+ who you think lack the mental capacity to consent and make their own decisions?

-What legal protection are you afforded with your current practice??

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-Any person with Parental Responsibility

-Any person who has been appointed as a Court Appointed Deputy by the Court of Protection.

-If neither of the above are in place, the person who is proposing to undertake the required act or is proposing that it is necessary will become the decision maker.

This could be you.

-Protection from liability only afforded if practitioner is able to demonstrate regard to the Statutory requirements set out in the MCA

WHO IS THE DECISION MAKER?

The Statutory Best Interest Checklist

-Don’t make assumptions

-Consider the individual’s own wishes, feelings, beliefs & values

-Consider any advance decisions/statements,

-Consider the views of the family and informal carers

-Can the decision be put off until the person regains capacity?

-Involve the person as much as possible

-Show you have assessed any conflicting evidence

-Provide reasons showing that it is in their best interests

-Take into account views of independent mental capacity advocate

-Consider less restrictive alternatives or interventions

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The role of an IMCA

-To be independent of the person making the decision

-To provide support for the person who lacks capacity

-To represent the person without capacity in discussions to work out whether a proposed decision is in the person’s best interest.

-To provide information to help work out what is in a person’s best interest

-To raise questions or challenge decisions which appear not to be in the persons best interest.

INDEPENDENT MENTAL CAPACITY ADVOCATE (IMCA)

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-You must consider IMCA referrals EVERY TIME you are supporting a person lacking capacity

Its is a Statutory requirement

WHEN

-the person has no relative, friend, carer (not paid to care for them) or other who is appropriate to consult in determining best interest

-(the only exception to this can be in situations where an urgent decision is needed and there is no time to instruct an IMCA)

IMCA

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and: --An NHS body is proposing to undertake serious medical treatment

-An NHS body or Local Authority is proposing to arrange accommodation/change accommodation which could mean: -

-The person will stay in hospital for longer than 28 days-The person will stay in a care home for more than 8 weeks

IMCA instruction is discretionary is situations such as: -Care reviews where there is no one else to be consulted-Safeguarding Procedures

-The IMCA has a right to see the person lacking capacity on their own, to access information (solely in relation to the decision to be made), photocopy any relevant information and take that information away with them.

An IMCA is NOT a decision maker

IMCA

In your current practice, how do you make decisions for people who are unable to make them for themselves i.e. consent to care etc. ?

What legal framework do you implement for those people who are16+ when they are deemed unable to make the necessary decision for themselves?

How do you ensure that people 16+ have their rights upheld within any decision making process, and receive independent advocacy?

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-The Mental Capacity Act does not specify any particular or specific methods of recording information. There is no formal or statutory paperwork

-It is important that all assessments of capacity are clearly recorded as they might be required to be seen in a Court - It is important that all best interest decision making processes are clearly recorded, as they might be required to be seen in a Court

-To not record will leave the practitioner unable to demonstrate the implementation of the Act (a statutory requirement) and vulnerable to liability.

A point of considerationIn your current practice how do you record information that will demonstrate legal compliance?

ASSESSMENT AND RECORDING

-A case involving a young person lacking capacity to make a decision can be heard in the Family Division of the High Court or in the Court of Protection.

-In cases that will require an on going order post 18 years, i.e. the person is likely to still lack capacity, it may be more appropriate to approach the Court of Protection

-For one off cases the Family Division may be more appropriate

-To enable the appropriate Court to hear a case, the Court of Protection can transfer cases to the Family Courts or vice versa.

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A very Clear message

Section 5 of the MCA gives legal protection to anyone who makes a decision or performs an act to which the individual cannot consent – provided:

-Their capacity has been assessed

-They lack capacity for this decision

-The decision/act is in their best interests

This gives authority behind a correctly made best interest decision.

There is no protection for a decision not properly made (and recorded)

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- So how do you take this forward ?

How do you ensure the following:- - People have their rights upheld in respect of decision making

- -There is guidance and policy in place

- -Staff have access to relevant training and information

- -People have access to Advocacy

- -Information is clearly recorded and safely stored.

- - MCA Information is available for people, their families, their carers,

- Your practice, Your service is MCA Compliant

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-TSDHCT MCA web pagehttp://www.torbaycaretrust.nhs.uk/ourservices/MentalCapacityAct/Pages/Default.aspx

-Office of the Public Guardianhttps://www.gov.uk/government/organisations/office-of-the-public-guardian

-Social Care Institute of Excellence MCA directory

http://www.scie.org.uk/mca-directory/mca-tailored-for-you/index.asp

Further information

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The Local Offer – Mental Capacitywww.torbaydirectory.com/family

Torbay LA web pages – Mental Capacitywww.torbay.gov.uk/sendreforms