quick reference guide · web viewmental capacity act 2005 policy version: 6 issue date: 15 april...

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MENTAL CAPACITY ACT 2005 POLICY

Version 6

Name of responsible (ratifying) committee Safeguarding Committee

Date ratified 29 March 2019

Document Manager (job title) Head of Safeguarding

Date issued 15 April 2019

Review date 14 April 2021

Electronic location Clinical Policies

Related Procedural Documents Consent policy, Integrated Safeguarding Policy, Restriction and Restraint in Adult Care Policy

Key Words (to aid with searching)

Mental Capacity Act; capacity assessment; best interests; decision making; deprivation of liberty safeguards, Court of Protection, Lasting Power of Attorney, Advance Decision to refuse treatment; Independent Mental Capacity Advocate

Version TrackingVersion Date Ratified Brief Summary of Changes Author

6 29.03.2019 MCA and DoLS policy combined. Removal of use of 48hour accommodation paperwork from policy.

Introduction of HCC MCA toolkit.

C Moss

5.1 28.02.2017 Inclusion of ‘Admission to Hospital Under the Mental Capacity Act 2005 (MCA)’ form within appendices

Adult Safeguarding Lead Nurse

5 27.01.2017 Updated Capacity Assessment Tool / Record. Addition of Best Interest Meeting Guidance and Decision Balance

Sheet.

Adult Safeguarding Lead Nurse

4 07.11.2013 Updated Adult Safeguarding Lead Nurse

Mental Capacity Act 2005 Policy Version: 6Issue Date: 15 April 2019Review Date: 14 April 2021 (unless requirements change) of 52

Working together to drive excellence in care for our patients and communities

our patients and communities

CONTENTS

QUICK REFERENCE GUIDE.................................................................................................................3

1. INTRODUCTION.............................................................................................................................7

2. PURPOSE.......................................................................................................................................7

3. SCOPE............................................................................................................................................7

4. DEFINITIONS..................................................................................................................................8

5. DUTIES AND RESPONSIBILITIES.................................................................................................9

6. PROCESS.....................................................................................................................................10

6.1 Statutory Principles of The Mental Capacity Act 2005................................................................106.2 Assessing Mental Capacity.........................................................................................................126.3 Forward Planning – see MCA Code of Practice, Chapter 9........................................................156.4 Court of Protection (MCA Code of Practice, Chapters 8 & 12)...................................................166.5 Research.....................................................................................................................................176.6 How the Act applies to Children and Young People (MCA Code of Practice, Chapter 12)........176.7 Restraint in Best interest (see MCA code of Practice, chapter 6. And PHT Restriction and Restraint in Adult Care Policy)..........................................................................................................176.8. Disputes Process (see MCA Code of Practice, chapters 8 & 15)..............................................186.9 Deprivation of Liberty Safeguards (DoLS)..................................................................................19

7. TRAINING REQUIREMENTS.......................................................................................................24

8. REFERENCES AND ASSOCIATED DOCUMENTATION..............................................................25

9. EQUALITY IMPACT STATEMENT...............................................................................................25

10. MONITORING COMPLIANCE WITH PROCEDURAL DOCUMENTS......................................26

APPENDIX 1: MCA TOOLKIT - PART A – ASSESSMENT OF CAPACITY........................................27

APPENDIX 2: MCA TOOLKIT – PART B – BEST INTERESTS DECISION MAKING.........................31

APPENDIX 3: MCA TOOLKIT – PART C – BALANCE SHEET...........................................................37

APPENDIX 4: MCA TOOLKIT – PART D – RISK ASSESSMENT.......................................................41

APPENDIX 5: MCA TOOLKIT – PART E – BEST INTERESTS MEETING AGENDA.........................43

EQUALITY IMPACT SCREENING TOOL............................................................................................47

QUICK REFERENCE GUIDE


Five Key Principles of the Mental Capacity Act (MCA) 2005:

1. A presumption of capacity - every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise;2. The right for individuals to be supported to make their own decisions - people must be given all appropriate help before anyone concludes that they cannot make their own decisions;3. That individuals must retain the right to make what might be seen as eccentric or unwise decisions;4. Best interests – anything done for or on behalf of people without capacity must be in their best interests; and5. Least restrictive intervention – anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms

‘Lack of capacity’ is an inability to make a particular decision at a particular time due to “an impairment or disturbance in the functioning of their mind or brain”. There must be a direct link between the mental impairment and the person’s inability to make a decision.

In order to make a decision the person must be able to:

Understand information given to them Retain that information (long enough to be able to make the decision) Weigh up the information available to make the decision Communicate their decision


Support a person to make their own

decision

Unwise decisions are allowed by law

Decisions made on behalf of a

patient is in their best interest

Consider the less

restrictive option Assume

Capacity

Understand Retain Use and Weigh Communicate

Lack of mental capacity may not be a permanent condition. Consider if you can wait to see if the patient’s capacity to make their own decision returns.

Assessments of mental capacity are time and decision specific.

The responsible clinical staff caring for the patient is usually best placed to assess mental capacity and if capacity to make the defined decision is deemed to be lacking act as the Best Interest decision maker for medical treatment and care decisions.

If you believe someone lacks mental capacity for a significant or complex decision then a formal mental capacity assessment and Best Interest decision which complies with the Best interest checklist as defined by the MCA must be completed and documented. To aid documentation, on the recommendation of our local Safeguarding Adult Boards, PHT have adopted the Hampshire County Council Mental Capacity Toolkit. This can be found on the PHT Safeguarding webpage.

If an advance decision to refuse a certain treatment has been made, is valid and applicable, the instructions in it must be followed after the person has lost mental capacity, unless there are sound reasons to think that the individual had subsequently changed their mind.

If there is a Lasting Power of Attorney (LPA) for Health and Welfare, check it is applicable and valid to the current decision / situation, check the LPA is registered with the Office of the Public Guardian (Appendix 2)Consider if the LPA is making decisions in the patients best interest (rather than their own).

The Deprivation of Liberty Safeguards (DoLS) were attached to the MCA in 2009. These safeguards are an important protection for adults who lack capacity to consent to hospital admission for care and treatment.

Depriving a person of their freedom may breach a person’s human right to liberty Article 5 (1) European Convention of Human Rights and Article 5(4), the right to have the lawfulness of detention reviewed by a court. The safeguards protect people who lack the ability to make certain decisions for themselves and ensure their freedom is not inappropriately restricted.


Application Process for DOLS Authorisation


Email copy of form to:

PHT DOLS Group mailboxRetain original form in

medical notes

Await outcome of Local Authority assessments.

Explanation to patient and relatives

Ensure patient is given a copy of all DoLS

documentation prior to them leaving hospital

DoLS GRANTED

Complete DoLS Form 1 pages 1-6

You can lawfully detain the patient in hospital until: Their mental capacity to

consent / refuse to being accommodated in hospital returns

They are transferred to another care provider / discharged to a safe destination

You would no longer prevent them from leaving hospital

The Standard DoLS authorisation expires

DoLS NOT GRANTED

Work in the patients Best Interests: Consider alternatives to treatment

and accommodation Seek senior clinical / legal advice if

unsafe to be discharged Allow to leave hospital taking all

reasonable care to ensure safety e.g. TTO’s, inform GP

Urgent DoLS-expired.

Unlawful on the part of the Local

Authority

Continue to accommodate the patient from treatment in the patients Best Interests

Request priority assessment from Local Authority if any high risk DoLS triggers

Trust DoLS signatories (team with clinical responsibility for the patient): ST3 and above

Email updates to PHT DOLS Group mailbox if:

Patient is discharged / dies Patient no longer meets the DoLS Acid Test . Ensure

reason why is documented in the medical notes.

An Urgent DOLS Authorisation comes into force as soon as

the DOLS application is completed and signed.

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Complete DoLS Form 22 weeks prior to the Standard DoLS expiring

Note the expiry date of the Standard DoLS. If patient still

meets the acid test…

QUICK REFERENCE GUIDE - 2

AND

Completing DOLS Form 1 (See guidance on the intranet)

Page 1: o Tick ‘Urgent and Standard ‘ Applicationo Ensure the correct ward is noted + phone numbero Ensure the patient’s normal home address is included o Contact is the Trust secure Safeguarding address as per master copy on intranet

An Urgent DOLS lasts a maximum of 7-days. Day 1= day of signing Signature is required on pages 4 and 6 For data security reasons: Do not send any DOLS forms / information to external DOLS Offices from

your hospital email address. Send only to PHT DOLS for secure forwarding


Hospital in-patient care is considered to meet this element of the Acid Test

The Acid TestA person may be considered to be deprived of their liberty if they lack the mental capacity to consent to accommodation in hospital (or care home) if:

The person is subject to continuous supervision

and control

The person is NOT free to leave

The patient (or their relatives) does NOT need to request discharge or make meaningful attempts to leave

If you would stop them, then this aspect of the acid test is met.

High Risk triggers for requesting the Local Authority urgently prioritise the DoLS assessment There is concern or disagreement as to whether the treatment plan is the least restrictive option

or in the patients best interests The patient (or family) are stating they want the patient to leave hospital against medical advice Repeated or significant use of physical or chemical restraint to prevent the person leaving LPA believed to be acting in their own interests rather than the patient’s Best Interests Serious conflict between professionals and / or family regarding Best Interests and / or conflict

between family members or others involved in the patient’s care in relation to the proposed care plan

Consider also: Adult Safeguarding concerns

Re-assess mental capacity of the person to make their own decision. Seek senior clinical advice.Legal advice can be obtained 24/7 via Hospital Duty Manager if a serious issue arises out of hours.

1. INTRODUCTION

This policy and guidance is based on the Mental Capacity Act 2005, and the Mental Capacity Act Code of Practice 2007.

The presumption of capacity should be the underpinning ethos for providing care to patients.

Staff may interact and care for people who for a whole host of reasons may not be able to make decisions for themselves, in these cases, staff members need to understand and apply the framework of the MCA to their area of practice.

The general legal principle is that no-one can interfere with an adult’s body or property without consent, section 5 of the MCA provides protection for health workers for acts done if a person is established as being mentally incapacitated, and the act (which would normally require consent) is in the person’s best interest. The importance of documenting decision specific capacity assessments and related best interest decision making is crucial for health workers to be provided with the protection of this law.

The Deprivation of Liberty Safeguards (DoLS) were attached to the MCA in 2009. These safeguards are an important protection for adults who lack capacity to consent to hospital admission for care and treatment.

Depriving a person of their freedom may breach a person’s human right to liberty Article 5 (1) European Convention of Human Rights and Article 5(4), the right to have the lawfulness of detention reviewed by a court. The safeguards protect people who lack the ability to make certain decisions for themselves and ensure their freedom is not inappropriately restricted.

Whilst every effort should be made to avoid depriving a person of their liberty, in certain circumstances it can be a necessary requirement to enable provision of effective care or treatment. A DOLS authorisation provides the legal framework and protection, when a deprivation of liberty is considered to be unavoidable, by allowing hospitals (and care homes) to accommodate a person in their best interests as defined by the MCA. Care must always be taken to ensure that if deprivation of liberty cannot be avoided, it should be for no longer than is necessary.

2. PURPOSE

All staff must read the policy and ensure they embed the principles within all health care practice. Healthcare staff are legally required to ‘have regard to’ the MCA Code of Practice and the DoLS Code of Practice. This means they must be aware of the relevant guidance and they should be able to explain how they have had regard to the Codes of Practice when acting or making decisions on behalf of someone who lacks capacity to make the decision for themselves.

3. SCOPE

The MCA applies to people over the age of 16 years. DoLS relates to people over the age of 18years. In circumstances where a person aged 17 years or under may be deprived of their liberty please contact either the Safeguarding Team on ext. 6058 or the Legal Department on ext. 6527 for advice (or via Hospital Duty Manager out of Hours).

This policy relates to all PHT staff.


In the event of an infection outbreak, flu pandemic or major incident, the Trust recognises that it may not be possible to adhere to all aspects of this document. In such circumstances, staff should take advice from their manager and all possible action must be taken to maintain ongoing patient and staff safety.

4. DEFINITIONS

Consent Consent is a patient’s agreement for a health professional to undertake examination, provide treatment, or care.

Valid Consent For consent to be valid the patient must:

Have the mental capacity to make the particular decision

Have received sufficient information Not be acting under duress

Mental Capacity Mental capacity is the ability of an individual to make a decision about a particular matter at the time the decision needs to be made (MCA Code of Practice, page 282). The decision could range from very simple, such as deciding what clothes to wear, to highly significant life decisions, such as whether to have major surgery, undergo complex medical treatment or move into long term residential care.

Deprivation of LibertySafeguards (DoLS)

Deprivation of Liberty Safeguards (DoLS) form part of the Mental Capacity Act (MCA). They are the legal procedure used to deprive someone of their liberty when they are confined to a registered care home or hospital in circumstances amounting to a deprivation of their liberty (article 5 Human Rights Act 1998) and lack mental capacity to consent to their arrangements. Guidance regarding DOLS is provided by the Deprivation of liberty safeguards Code of Practice (2008) – referred to in this policy as DOLS Code of Practice.

DoLS Managing Authority The organisation responsible for the care home or hospital applying for the DOLS authorisation i.e. Portsmouth Hospitals NHS Trust.

Supervisory Body/Authority

Supervisory Body / Authority: the Local Authority which covers the person’s normal place of residence. Local Authorities are responsible for considering a DoLS request, arranging the required independent assessments and agreeing or denying a DoLS authorisation.

IndependentMental CapacityAdvocate (IMCA)

An IMCA provides support and representation for a person who lacks capacity to make specific decisions, where the person has no-one else to support them. It is not the same as an ordinary advocate (see MCA Code of Practice, Chapter 10).

Best Interest Decisions One of the key principles of the MCA is that any act done for, or any decision made on behalf of a person who lacks capacity, must be done, or made, in that person’s best interests (see MCA Code of Practice, Chapter 5).

Advance decision to refuse treatment

Advance decision to refuse life-sustaining treatment

An advance decision enables someone aged 18 and over, to refuse specified medical treatment for a time in the future when they may lack the capacity to consent or to refuse treatment.As with advance decisions, but must be written signed dates and witnessed.

Court Appointed Deputy Someone appointed by the Court of Protection with ongoing


legal authority as prescribed by the Court to make decisions on behalf of a person who lacks capacity to make particular decisions as set out in Section 16(2) of the Act.

Court of Protection Specialist Court for all issues relating to people who lack capacity to make specific decisions (see MCA Code of Practice, Chapter 8).

Decision-maker This is the person making a specific decision or acting on behalf of someone who lacks the capacity to make the decision for themselves. It is the decision maker’s responsibility to work out what would be in the best interests of the person who lacks capacity (see MCA Code of Practice, Chapter 5).

Lasting Power of Attorney(LPA)

A Power of Attorney created under the MCA to appoint an attorney(s) to make decisions about a specific person’s (the donor) personal welfare &/or their property & affairs (see MCA Code of Practice, Chapters 7).

Office of the Public Guardian(OPG)

The OPG protects people in England and Wales who may not have the mental capacity to make certain decisions for themselves and helps people plan ahead for someone to make certain important decisions for them, should they become unable to do so because they lack mental capacity (see MCA Code of Practice, Chapters 7, 8 &14).

Restraint Restraint is the use or threat of force to help do an act which the person resists OR the restriction of the person’s liberty or movement, whether or not they resist. Restraint may only be used where it is necessary to protect the person from harm and is proportionate to the risk of harm (see MCA Code of Practice, Chapters 6 & 7).

5. DUTIES AND RESPONSIBILITIES

All Staff:

All staff have a legal duty to act within the Mental Capacity Act 2005 and to have due regard to the MCA Code of Practice.

In order to provide quality patient care to patients who are unable to make a decision for themselves it is imperative for all staff to adhere to the MCA Code of Practice, as a failure to comply with this in practice may be used as evidence in legal proceedings.

When members of staff are faced with complex and difficult situations regarding assessment of capacity and related best interest decision making, it is important in the first instance they seek support from their line manager, Senior Members of their Care Group and Division. The Trust Corporate Safeguarding Team is also available if further guidance is required.

Managers

Line Managers should ensure that they have sufficient knowledge of the Mental Capacity Act and Deprivation of Liberty Safeguards (DoLS) in order to be able to supervise and support members of staff when implementing the Act.Executive

The Director of Nursing is the executive Lead for Mental Capacity Act.Strategic and operational leadership is provided by the Head of Integrated Safeguarding.

Integrated Safeguarding TeamMental Capacity Act 2005 Policy Version: 6Issue Date: 15 April 2019Review Date: 14 April 2021 (unless requirements change) of 52

The role of the Integrated Safeguarding Team is to provide responsive supervision to members of staff, including practical advice and interpretation of the statutory framework. The Integrated Safeguarding Team also designs and delivers training on the Mental Capacity Act and DoLS.

6. PROCESS

6.1 Statutory Principles of The Mental Capacity Act 2005

The underpinning values of the MCA, the five statutory principles, are laid out in Section 1 of the Mental Capacity Act. These principles aim to enable and support people who lack capacity, to maximise their ability to make decisions & participate in decision making; not to be restrictive or controlling of their lives (MCA Code of Practice, Chapter 2).

These principles are not an “added extra” to care but underpin all clinical practice.

6.1.1 The five statutory principles are:

Principle 1 – A person must be assumed to have capacity unless it is established that they lack capacity.

Principle 2 – A person is not to be treated as unable to make a decision unless all practicable steps to help them do so have been taken without success.

Principle 3 – A person is not to be treated as unable to make a decision merely because they make an unwise decision.

Principle 4 – Any act done, or any decision made on behalf of a person who lacks capacity must be done, or made, in their best interests.


1. Assume capacity

2. Support a person to make their

own decision

3. Unwise decisions are allowed by law4. Any decision

made for a patient should be in their

best interest

Always consider the less

restrictive option

Principle 5 – Before someone makes a decision or acts on behalf of a person who lacks capacity, they must always consider if something else could be done that would interfere less with the person’s basic rights and freedoms. This consideration should include whether there is a need to act or make a decision at all.

Application of the statutory principles of the MCA in practice.

1. Assumption of capacity

The starting assumption must always be that a person has the capacity to make a decision unless there is proof that they lack the capacity to make a particular decision when it needs to be made.A person’s capacity to make a specific decision may be questioned for a number of reasons, forexample: The person’s behaviour or circumstances cause doubt as to whether they have the capacity to make the decision. The person has previously been diagnosed with an impairment or disturbance that affects the way their mind or brain works and it has already been demonstrated they lack capacity to make other decisions in their life.

Anyone who believes that a person lacks capacity to make a particular decision should be able to provide evidence to substantiate this opinion – Chapter 4 of the MCA Code of Practice explains the standard of proof required.

2. People must be helped to make decisions – taking practicable steps

If anyone thinks a person lacks capacity to make a specific decision at the time it needs to beMade; they must take practical and appropriate steps to support and enable the person to make the decision themselves. A person is not to be treated as unable to make a decision unless all practicable steps to help him/her to do so have been taken without success. This is in accordance with statutory principle 2, and is explained in Chapters 3 and 4 of the MCA Code of Practice.Appropriate steps will depend on factors such as individual circumstances, the decision to be made and the length of time available to make the decision, but may include:

Consider does the decision need to be made now, can it be delayed? Information may be best presented in a different format e.g. photographs or flash cards An interpreter may be required (See interpreting Policy ) Ensure glasses and hearing aids are in use if required. The person may be best supported by someone they know well. What time of day is the person at their best.

Emergency situations: The MCA Code of Practice (para 3.6) states that “in an emergency situation, urgent decisions will have to be made and immediate action taken in the person’s best interests. In these situations, it may not be practical or appropriate to delay treatment whilst trying to help and support a person to make their own decisions’Members of staff should still communicate with the person, keeping them informed of what is happening.

3. A person is not to be treated as unable to make a decision merely because they make an unwise decision.


A person should not be assumed to lack capacity to make a particular decision just because other people consider their decision to be unwise. This applies even if family members, friends or healthcare staff are unhappy with a decision.

If there is concern that a person repeatedly makes decisions that put them at significant risk of harm or exploitation, or they make a particular decision which is obviously out of character, then there may be a need for a documented assessment of capacity. (see MCA Code of Practice, Chapter 2 for further information).

4. Best Interests

‘Best Interests’ is personal to the individual and the role of the practitioner is to identify what would be in the person’s best interests. It is not about simply “what would you do…” It is much more about “what would [the person] do if they were able to make this decision. Best interest does not necessarily mean the best clinical outcome. Consider, if the person was able to make the decision for themselves what would it be?

5. Less restrictive

Applying the principle of seeking the less restrictive option is about trying to avoid interference with a person’s rights and civil liberties. The option chosen must still be in the person’s best interests – and thus the principle identifies the less restrictive, not least restrictive option. For example: A package of care at home may be less restrictive than admission to a care home.

6.2 Assessing Mental Capacity

An assessment of someone’s capacity must be based on their ability to make a particular decision at the time it needs to be made, and not their ability to make decisions in general.

As capacity relates to specific matters and can change or fluctuate over time and in different circumstances, capacity should be reassessed as appropriate and in respect of specific decisions.

Where a person’s mental capacity is subject to fluctuation, this should be recorded in the care plan, including any strategies known to assist the person with decision making. A person may lack capacity to make a decision about one issue, but not about others.

Assessors must adhere to the statutory principles (see above) including taking all practicable steps to support the person to make their own decisions.

6.2.1 Who should assess capacity? (See MCA Code of Practice, Chapter 4)

The MCA Code of Practice states that different people may be involved in assessing someone’s capacity to make different decisions at different times & defines an assessor as “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”. For example: A Doctor will assess capacity relating to medical treatment, A Nurse will assess capacity for delivery of patient care. A physiotherapist will assess capacity to consent to assessment and treatment.

6.2.2 Lack of Capacity (see MCA Code of Practice, Chapter 4)

For the purpose of the Mental Capacity Act, a person lacks capacity if:


‘They have an impairment or disturbance that affects the way their mind or brain works and because of this they are unable to make a specific decision at the time it needs to be made.’ (MCA Code of Practice, para 4.3)

The impairment or disturbance doesn’t have to be permanent – a person can lack capacity to make a decision at the time it needs to be made if the loss of capacity is partial, temporary or changes over time.

A person is considered unable to make a decision if they are unable to do any one (or more) of the following things:

1. Understand the relevant information2. Retain the information, long enough to make the decision.3. Use and weigh-up the information as part of the decision-making process4. Communication their decision – by any means

Following the assessment the person is deemed in probability to have or not the capacity to make the decision at the time of assessment. It is important to clearly document your assessment. To aid documentation, on the recommendation of our local Safeguarding Adult Boards, PHT have adopted the Hampshire County Council Mental Capacity Toolkit. This can be found on the PHT Safeguarding webpages. Appendix 1

6.2.3 Best Interest Decision Making

It is recognised that most significant decisions regarding someone who lacks capacity will be made in the context of a multi-disciplinary and wider discussion or formal Best Interest meeting. However, the person who will make the decision is the person who is likely to be proposing to take action, and is likely to be a doctor, nurse, social worker, allied professional.

The MCA sets out a best interest checklist of factors to be considered by the decision-maker whilst considering the best interests of the person. A brief summary is given below. Further details are given in the MCA Code of Practice, Chapter 5. Tools to support documentation of best interest decision making can be found on the PHT Safeguarding webpages. appendix 2

The MCA Code of Practice directs that a person trying to work out the best interests of a person who lacks capacity to make a particular decision should:

1. Encourage participation – do whatever is possible to encourage & facilitate the person to take part in making the decision

2. Identify all relevant circumstances – try to identify all the things that the person who lacks capacity would take into account if they were making the decision for themselves.

3. Find out the person’s views, wishes, beliefs and values which may be likely to influence the decision in question – these may have been expressed verbally, in writing or through behaviours or habits.


Understand Retain Use and weigh Communicate

4. Avoid discrimination – do not make assumptions about someone’s best interests based simply on the person’s age, appearance or other aspects of behaviour that might lead others to make unjustified assumptions.

5. Do not make assumptions about the person’s quality of life – if the decision concerns life sustaining treatment, the decision-maker should not be motivated in any way by a desire to bring about the person’s death.

6. Consult others to take account of their views regarding what would be in the person’s best interests.

7. Take all of these factors into account in order to work out what is in the person’s best interest

To aid documentation a best interest check list and decision balance sheet –Which is part of the Hampshire County Council Mental Capacity Toolkit can be found on the Safeguarding page of PHT intranet site. Appendix 2

6.2.4 Independent Mental Capacity Advocate (IMCA) (MCA Code of Practice Chapter 10).

The aim of the IMCA service is to provide independent advocacy for people who lack capacity to make certain important decisions and, who have no-one other than paid staff to support or represent them, or be consulted as to the individual’s best interests. - They are “un-befriended”

An IMCA must be appointed where an un-befriended individual faces the following decisions:• An NHS body is proposing to provide, withhold or stop serious medical treatment.• An NHS body or Local Authority is proposing to arrange accommodation in a hospital or a care home (where the person will stay for longer than 28 days or in the care home for more than 8 weeks).• An NHS body or Local Authority is proposing to move the person to a different hospital or care home.If there is any doubt about a person’s capacity to make the decision, the assessment of their mental capacity should be recorded to ensure clear decision-making and timely instruction of an IMCA where necessary.

While the MCA requires an IMCA to be instructed in the specific situations detailed above, it does not restrict the discretion of the Trust to engage advocates outside these mandatory circumstances.

It is vital that clear, accurate and timely identification of the need for an IMCA is made. Delay in identifying the need for an IMCA is likely to cause delays in medical treatment, discharge from hospital and placement in care homes, which may not be in the best interest of the individual.

The IMCA’s role is to support and represent the person who lacks capacity; they are not the decision maker. Because of this, IMCAs have the right to be provided with access to relevant health and social care records. An IMCA also has the right to meet in private the person they are supporting

Any information or reports provided by an IMCA must be taken into account as part of the process of determining whether a proposed decision is in the person’s best interests.

IMCA request forms are available on the Trust Safeguarding website. Appendix 4

When emergency treatment is required it should go ahead in the person’s best interest and an IMCA requested for subsequent ongoing care and treatment decisions.


6.3 Forward Planning – see MCA Code of Practice, Chapter 9

The MCA allows for forward planning in relation to care decisions. This occurs when a person has capacity for the decisions, planning for a time in the future when they may lack capacity to consent to or decline treatment.

6.3.1 Advance decisions

An advance decision enables someone aged 18 and over, while still capable, to refuse specified treatment for a time in the future when they lack the capacity to consent to or refuse that treatment.

6.3.2 Advance Decisions to refuse treatment

It is a general principle of law and medical practice that people have a right to consent to or refuse treatment. Adults have the right to say in advance that they want to refuse treatment if they lose capacity in the future even if this results in their death. The mechanism by which this is done is through an Advance Decision.

An advance decision to refuse treatment must be valid and applicable to current circumstances. If it is, it has the same effect as a decision that is made by a person with capacity: healthcare professionals must follow the decision.

Healthcare professionals will be protected from liability if they:Stop or withhold treatment because they reasonably believe that an advance decision exists, and that it is valid and applicable treat a person because, having taken all practical and appropriate steps to find out if the person has made an advance decision to refuse treatment, they do not know or are not satisfied that a valid and applicable advance decision exists.

A valid and applicable Advance Decision to refuse treatment has the same force as a contemporaneous decision.

To establish whether an advance decision is valid and applicable, healthcare professionals must determine if the person:

has withdrawn their decision has acted in a way that is clearly inconsistent with the advance decision has conferred the power to make the decision to someone else via Lasting Power of

Attorney or The person would have changed their decision if they had known more about the current

circumstances.

The MCA sets out additional formalities for advance decisions that refuse life-sustaining treatment:

1. It must be in writing, which includes being written on the person’s behalf or recorded in their healthcare notes. 2. It must be signed by the person in the presence of a witness who must also sign the document. It can also be signed on the person’s behalf at their direction if they are unable to sigh it for themselves.3. It must be verified by a specific statement made by the maker, either included in the document or a separate statement that says that the advance decision is to apply to the specified treatment even if life is at risk.4. If there is a separate statement this must also be signed, dated and witnessed

6.3.3 Lasting Power of Attorney (LPA) - See MCA Code of Practice, Chapter 7Mental Capacity Act 2005 Policy Version: 6Issue Date: 15 April 2019Review Date: 14 April 2021 (unless requirements change) of 52

Before the Mental Capacity Act was introduced, there was an arrangement called Enduring Power of Attorney (EPA) these are now less common but there are still a small number in existence. EPA relate to financial and property matters.

The MCA created a system in which a person over the age of 18 years can select who they want to make decisions on their behalf and which decisions they are authorised to make, in preparation for a time when the person loses the capacity to make the decision for themselves. These are called Lasting Power of Attorney (LPA)

There are two types of LPA, one for property and affairs and one for health and welfare. For an LPA to be valid it must be registered with the office of the public Guardian (OPG) before it can be used. (See MCA Code of Practice, para 7.56).

It is important to determine which kind of LPA a person has made, as a Property and Affairs LPA cannot make decisions related to welfare and health. Further information is available on the PHT Safeguarding website. Appendix 3

If there is concern about an LPA not acting in the person’s best interest this should be raised with the Office of the Public Guardian and may need to go to the court of protection.

6.4 Court of Protection (MCA Code of Practice, Chapters 8 & 12)

The Court of Protection deals with decision making for adults (and children in a few cases) who may lack capacity to make decisions for themselves.

The Court of Protection has the same powers, rights, privileges and authority as the High Court.When reaching any decision the court must apply all the statutory principles set out in section 5.1 of the MCA.

The Court has powers to:

• Make declarations about whether or not a person has capacity to make a particular• decision• Make decisions on serious issues about healthcare and treatment• Make decisions about property and financial affairs of a person who lacks capacity• Make decisions in relation to Lasting Powers of Attorney (LPAs) and Enduring Powers of

Attorney (EPAs)• Appoint deputies to have an ongoing authority to make decisions• Remove deputies or attorneys who fail to carry out their duties.

The Court can also use its 'inherent jurisdiction' to make interim declarations pending its decision about whether someone has capacity which means we can apply to the court for a short term decision whilst a dispute about capacity is determined.

If it is felt that a Court of Protection decision is required this should be discussed within the MDT and with the MCA Lead for the trust – currently held within the Integrated Safeguarding Team.

6.4.1 Court of Protection: Court Appointed Deputies (MCA Code of Practice, Chapter 8)

The MCA provides for a system of court appointed deputies to make decisions on matters for which a person lacks the capacity of make decisions for themselves. In the majority of cases, deputies will be either a relative or someone well known by the person who lacks capacity, but in some cases may be someone independent of the situation.


Deputies will only be appointed where future or ongoing decisions are required and the Court cannot make a one-off decision to resolve the issue.

Deputies will be able to take decisions on welfare, healthcare and/or financial matters as authorised by the Court, but will not be able to refuse consent to life-sustaining treatment. As in the case of LPAs, the welfare and finance responsibilities may be combined or shared.

Deputies have to pay attention to the guidance in the MCA Code of Practice, have to act in the best interests of the person who lacks capacity & make sure they only make decisions that they are authorised to make by the order of the court.

6.5 Research

The MCA Code of Practice highlights the importance of carrying out research involving people who lack capacity to improve knowledge regarding what causes a person to lack or lose capacity and the ensuing diagnosis, treatment, care and needs. Further information can be found in the MCA Code of Practice, Chapter 11.

6.6 How the Act applies to Children and Young People (MCA Code of Practice, Chapter 12)

6.6.1. The MCA applies to all individuals over the age of 16 years old. It must therefore be assumedthat all people over the age of 16 years old have capacity to make decisions, unless proved otherwise (S.1 MCA 2005).

6.6.2. Most of the Act applies to young people aged 16-17 years who lack capacity to make specificdecisions, although there are exceptions:

Only people aged 18 and over can make a Lasting Power of Attorney Only people aged 18 and over can make an advance decision to refuse specific medical treatments The Deprivation of Liberty Safeguards only applies to people aged 18 or over.

6.6.3. The Act does not generally apply to children under the age of 16, although the Court ofProtection can make decisions, or appoint a deputy to make decisions, regarding a child’s property or finances where the child lacks capacity to make related decisions and is likely to still lack capacity at 18.

6.6.4. Where there are disagreements concerning care, treatment or welfare of a young person aged 16-17 who lacks capacity to make related decisions, the case may be heard in the Court of Protection or the Family Court depending on circumstances. Cases can be transferred between the courts.

6.7 Restraint in Best interest (see MCA code of Practice, chapter 6. And PHT Restriction and Restraint in Adult Care Policy)

6.7.1. Section 6(4) of the MCA states that someone is using restraint if they: “Use or threaten force to make someone do something that they are resisting, or restrict a person’s freedom of movement, whether they resist or not.” This includes verbal treats/coercion chemical sedation and physical means of restraint.

6.7.2. Staff should consider less restrictive options before using restraint. The MCA Code of Practice


(Paragraph 6.48) suggests that where possible other people involved in the care of a person who lacks capacity should be consulted regarding what action may be necessary to protect the person from harm.

6.7.3. Staff will only be protected from liability regarding any action intended to restrain a person who lacks capacity under the following two conditions:

The person taking action must reasonably believe that restraint is necessary to prevent harm to the person who lacks capacity and the amount or type of restraint used and the amount of time it lasts must be proportionate to the likelihood and seriousness of harm.

Strategies to manage risk will need to be agreed when an individual lacks capacity and their behaviour places them at risk of significant harm. (See Restriction and Restraint in Adult Care Policy for more information)

Relationship between the Mental Capacity Act and the Mental Health Act (MHA)1983. (see MCA Code of Practice, Chapter 13)

The MHA provides ways of assessing, treating and caring for people who have a serious mental disorder that puts them or other people at risk. It sets out when to think about using the MHA to detain and treat somebody who lacks capacity to consent to treatment (rather than use the MCA), if:

It is not possible to give the person the care or treatment they need without doing something that might deprive them of their liberty. Remember Deprivation of liberty Safeguards (DoLS) relate only to accommodation not for treatment.

The person needs treatment that cannot be given under the MCA (for example, because the person has made a valid and applicable advance decision to refuse an essential part of treatment)

The person may need to be restrained in a way that is not allowed under the MCA

It is not possible to assess or treat the person safely or effectively without treatment being compulsory (perhaps because the person is expected to regain capacity to consent, but might then refuse to give consent)

The person lacks capacity to decide on some elements of the treatment but has capacity to refuse a vital part of it – and they have done so, or there is some other reason why the person might not get treatment, and they or somebody else might suffer harm as a result

Advice should be sought from a Senior colleague, the Crisis Team or the on call Psychiatrist.

6.8. Disputes Process (see MCA Code of Practice, chapters 8 & 15)

6.8.1 There maybe occasions when a capacity assessment or best interest decision is challenged. This could be by the patient themselves, their family or friends or other professionals involved in the patents care.

6.8.2. Firstly, the challenge should be dealt with informally by raising the concern with the person who carried out the assessment or made the decision, to determine the reasons why they made such a decision and to ascertain objective supporting evidence. If this doesn’t resolve the situation consider if an advocate is required to ensure the patient’s voice is heard. An advocate can be sourced via the IMCA service provider. Please contact the Safeguarding team for further information.


In general, disagreements can be resolved by either informal or formal procedures. However, there are some disagreements and some subjects that are so serious they can only be resolved by the Court of Protection. Advice can be sought from PHT Safeguarding Team and Legal Services.

Other steps which can be taken may include:

Getting a second opinion from an independent professional or another expert in assessing capacity

Using the local complaints procedure Using mediation Setting up a case conference. Advocates can be involved in any of the steps taken to resolve a disagreement. Members of staff should discuss with their line manager to seek further guidance.

6.9 Deprivation of Liberty Safeguards (DoLS)

6.9.1 The Deprivation of Liberty Safeguards (DoLS) were introduced in April 2009 and are part of the Mental Capacity Act (MCA)

A DoLS authorisation is a lawful mechanism that allows a hospital (or care home) to:

• keep the patient in hospital for a specified amount of time • or until their capacity returns and they can make their own decision• or the need for them being in hospital no longer exists• or until they move to another care provider

The DoLS Authorisation provides safeguards for those aged 18 years and over by:

• Provide the person with a representative• Give the person (or their representative) the right to challenge a deprivation of liberty

through the Court of Protection• Provide a mechanism for deprivation of liberty to be reviewed and monitored regularly.

DoLS does not:

• Give any legal right to treat (Treatment to the non-capacitious patient is given in best interest as defined by the MCA 2005)

• Transfer between organisations or postal addresses• Give any legal right to move a person to another establishment

In 2014 following the court cases of “P v Cheshire West and Chester Council and another” and “P and Q v Surrey County Council” a Supreme Court ruling introduced the ‘Acid Test’ the ruling detailed:

A person can be deemed to be deprived of their liberty if that person, has been assessed to lack capacity to make the decision of being admitted to hospital for treatment and care.

AND

The person subject is to continuous supervision and control? (In-patient hospital care is usually be considered to meet this element of the Acid Test)

AND


The person is not free to leave The person may not be asking to go or showing by their actions that they want to leave but the issue is about how staff would react if the person did try to leave or if relatives/friends asked or tried to remove them.

6.9.2 Using the powers of the MCA to affect hospital accommodation

When treatment of the underlying physical illness is expected to lead to rapid resolution of the mental disorder, in the absence of high risk DOLS triggers (see Table 1 below) ‘the powers of the MCA’ alone can be utilised for a short period of time. A capacity assessment to consent to or refuse admission to hospital must be undertaken and documented in the medical notes As with all best interest decisions there is a duty for the clinician to consult with the people who know the person best.

Trust guidance: A person can be accommodated at PHT in their best interest as defined by the MCA 2005 for up to 48-hours.

Table 1:

High Risk triggers for DOLS Application

• There is concern or disagreement as to whether the treatment plan is the least restrictive option or in the patient’s best interests

• The patient (or family) are stating they want the patient to leave hospital against medical advice

• Repeated or significant use of physical or chemical restraint to prevent the person leaving. (consider if a mental health assessment is required)

• LPA believed to be acting in their own interests rather than the patient’s best interests

• Serious conflict between professionals and / or family regarding best interests and / or conflict between family members or others involved in the patient’s care in relation to the proposed care plan

Use of covert medication

Consider also:

• Adult Safeguarding concerns

6.9.3 DoLS and Critical Care (E5 ward only)Due to the frequent need for sedation and reduced levels of consciousness due to illness during admission to a Critical Care Unit (Intensive Care) it could be argued that many patients cared for within this environment would meet the Acid Test, however, the situation in Critical Care is now widely recognised to require a different approach most other healthcare settings.

Following the case of Ferreira (R(LF v HM Senior Coroner for inner London & Ors [2017] EWCA Civ 31) The Court of Appeal made clear the general principles laid out in Cheshire West case do not in general apply to arrangements made for the provision of immediately necessary life-sustaining medical treatment in the critical care environment, PROVIDING that treatment is no different to that provided to anyone else.


Table 2:DOLS Application will not normally be made when:

DOLS Application should be considered when:

A capacitous patient has consented to a procedure in the knowledge that admission to the critical care is likely / a possibility, or has consented to Critical Care admission for treatment of non-surgical illness or emergency admission.

And/or

A patient is still receiving Critical Care-level organ support (e.g. respiratory, renal or cardiovascular support that requires continued admission to Critical Care)

High risk DOLS triggers are present, as per Table 1.

And/or

The patient is no longer receiving Critical Care-level organ support but has not yet been discharged or transferred from the Department of Critical Care (eg. A patient who meets the usual criteria for DOLS application and who remains in Critical Care only because of a lack of available beds on a standard medical ward)

6.9.4 Applying for a DoLS AuthorisationThere are two types of DoLS authorisation:

Urgent Authorisation – An Urgent DoLS must be applied if the person is being deprived of their liberty at this point in time. This is applied for by the hospital (known as the Managing Authority) and is an effective legal document once the form is completed and signed. It lasts a maximum of 7 calendar days (day 1 being the day of application). An application for a standard DoLS must be made at the same time in order to trigger independent DoLS assessment by the Local Authority (LA) without this, the urgent DoLS may be considered unlawful. DoLS form 1 can be found on PHT Safeguarding website. Appendix 5

In exceptional circumstances at the request of the LA DoLS office, an extension to an Urgent DoLS can be granted for a further period of 7 days. Wards will be advised by the Safeguarding Team if an extension to urgent DoLS is required.

Standard Authorisation – this is granted by a supervisory body (Local Authority DoLS Office) following independent assessment. This is always used in conjunction with an urgent authorisation but could be applied for on its own in anticipation of a future need for DoLS e.g. elective surgery for someone who is under a DoLS in a care home. If granted, a standard DoLS will have an expiry date, with a maximum of 1 year being granted. The time granted is dependent on the individual circumstances.

DoLS form 1 contains the Urgent and Standard Authorisation paperwork.

Before granting an Urgent Authorisation, staff should speak to the family, friends and carers of the person. Staff should make a record of their efforts to consult others.

In the situation where the person to be admitted is already subject to a DoLS authorisation in a care home, then it is very likely that the Trust will need to apply for DoLS authorisation in order to effect admission and an ongoing hospital stay. For elective cases this can be applied for in advance of the planned admission date and it is the admitting clinicians’ responsibility to ensure this is completed.


6.9.5 Who completes the DoLS forms?

It is the responsibility of the clinical team caring for the patient to apply for a DoLS Authorisation.The form needs to be signed by a doctor - ST3 or above.

6.9.6 Completion of a DoLS application forms.

Within the acute hospital, it is most common that a deprivation of liberty occurs suddenly and unexpectedly e.g. an emergency admission situation or as a result of a clinical deterioration. In these circumstances, when the deprivation is already occurring and cannot be avoided, and expected to last longer than 48 hours the Trust as the managing authority must apply an Urgent DoLS Authorisation and request a Standard DoLS. Once DoLS forms are completed and signed it is the legal framework by which the person is accommodated in hospital and the prevention of the person leaving hospital.

The narrative within the application form should be personal to the person being deprived of their liberties situation. It should contain detail of why the person fulfills the acid test for DoLS, why hospital delivered care is the least restrictive option and details of all restrictions in place to keep the person safe. For example: Cot sides, one to one care, foam mittens, chemical restraint, If any high risk trigger are present this must be detailed within the narrative.

6.9.7 Which DoLS form to use?

Form When1 Standard Authorisation only: For planned admission of a person who fulfills the acid

test.

Urgent and Standard Authorisation: When the person has an emergency admission or deterioration in condition whilst an in-patient and fulfills the DoLS acid test.

Extension to Urgent Authorisation: Only completed at the request of the LA DoLS Office2 The person needs to remain in hospital past the current Granted DoLS expiry date.

6.9.8 Where to send the forms

PHT DoLS Office send all DoLS application forms to the relevant Local Authority DoLS Office, who arrange for independent assessments to be undertaken. In order to improve data security and monitoring, this process is managed centrally by the Trust DoLS Safeguarding Team.

The completed DoLS applications must be scanned and emailed on the day of completion to:[email protected] original form must be filed in the patient’s medical record.

6.9.9 Who to notify:

The person - must be given a copy of the DoLS forms and have it explained to them, including the right to appeal. It may not be appropriate to do this at the time of the application, however, they must be given a copy prior to discharge and this should be documented in the patient’s medical records.

The person’s Next of Kin – Must be informed of the application being made and that they will be contacted by an independent DoLS assessor. A leaflet explaining DoLS for patients and families is available on the Trust Safeguarding intranet site. Appendix 6

Ward Based Clinician –Document the date of DoLS application and when the urgent DoLS expires. If the patient still fulfills the ‘acid test’ after the urgent DoLS has expired, the legal


framework for accommodating the person in hospital is the MCA using the principle of best interest, this, should be documented in the medical notes.

Add DoLS flag to Bedview

Care Quality Commission (CQC) - It is a requirement of the Trust’s registration with that the CQC are informed of all DoLS applications and outcomes. This is managed centrally by the Trust Safeguarding Office Team.

6.9.10 What will happen next?

The Supervisory Body (Local Authority DoLS Office) makes arrangements for the required assessments to be undertaken. Clinical staff should support this assessment process but are not required to undertake the assessments themselves. Access to the medical records should be made available to the assessors.

Normal care and treatment of the patient, including discharge planning should continue during the assessment period. Where the patient is also assessed and documented to lacks mental capacity to make decisions about treatment options then, in line with the MCA, best interest decisions should be made and documented.

If for any reason the DoLS office does not complete the required assessments within the 7-day Urgent Authorisation period and an Urgent Extension is not granted then the DoLS can be considered unlawful or lapsed on the part of the Local Authority. In these circumstances it is essential to continue to accommodate and treat the person in their Best Interests as defined by the MCA.

Inform the Safeguarding Team if high risk trigger are present. (See table 1 page 6) The team will request priority assessment on your behalf. If the Local Authority do not undertake the priority assessment senior clinical and legal advice should be taken to consider if the case needs to be referred to the Court of Protection.

Complete regular documented reassessments to determine if the person still meets the Acid Test.

If the person regains capacity to make the decision to be accommodated in hospital, they therefore no longer meet the acid test and DoLS is not appropriate. This should be clearly documented in the medical notes and the Safeguarding Team informed who in turn will notify the appropriate Local Authority.

6.9.11 Standard DoLS Authorisation is granted

A patient held under DoLS may be kept at Portsmouth Hospitals NHS Trust for the proposed treatment and care until:

The course of treatment is completed and the patient now longer needs to remain in hospital and can return to their normal place of residence

Arrangements have been made for on-going care to continue in another location e.g. care home or specialist hospital

The patient no longer fulfils the Acid Test. This must be documented in the medical notes and the Safeguarding Team informed, who in turn will inform the relevant Local Authority DoLS office


6.9.12 All DoLS authorisations should be filed in the patient’s medical notes. It is important that family and friends are kept up to date and that effort is made to help the person subject to DoLS understand the effect of the authorisation and their right to challenge. 6.9.13 What to do if a granted Standard DoLS is about to expire

If continuing treatment and care is required in circumstances that fulfil the DoLS acid test then a further Standard Authorisation will be required. 7-10 days prior to the granted Standard DoLS expiry a DoLS form 2 should be completed and sent to the Trust DoLS Office as detailed above.

6.9.14 DoLS ConditionsOn some occasions a Standard DoLS Authorisation is granted with conditions attached. Staff have a legal duty to ensure any conditions are met. The DoLS Office must be contacted immediately if for any reason staff are unable to meet the conditions.

DOLS recommendations: The DoLS Best Interests Assessor can also make recommendations, for example about treatment, further assessments, the patients care plan If their recommendations are not being followed and they have indicated in their assessment report that they would like to be consulted again in that event, clinical staff must contact the DoLS office, this can be facilitated by the PHT DoLS team.

If a patients care plan changes regarding use of restraint, sedation or covert medication whilst under a DoLS authorisation then the PHT DoLS team must be informed, who will in turn inform the LA.

A DoLS Authorisation is specific to the address of the Managing Authority (PHT) and cannot be transferred to another establishment or organisation.

6.9.15 A Standard DOLS Authorisation is refused

If there are major concerns about the patient’s safety if they leave hospital and fail to comply with what is deemed essential treatment and care, senior clinical and legal advice should be sought. In some cases application to the Court of Protection may be required. Requests for legal advice should be made through the Trust Legal Services office ext. 6527 or via Hospital Duty Managers out of hours.

6.9.16 Accommodation in hospital of 16-17 year olds

Where a young person lacks capacity (in accordance with the statutory test laid down in the MCA 2005) and therefore cannot provide capacitated consent, to admission to hospital for treatment and care a person with parental responsibility can provide consent on their behalf. This means that 16 and 17 year olds are distinct from adults under the MCA 2005; insofar as consent can be provided on their behalf by someone with parental responsibility, where the young person is incapable.

7. TRAINING REQUIREMENTS

The training requirements are defined by the Intercollegiate Safeguarding document

Level 1: All Trust staff will have a basic awareness of MCA. This will be achieved via induction and the yearly essential update booklet. Target: 85% compliance level

Level 2: All inpatient based clinical staff who deliver direct patient care. This will be achieved by Face to Face booked on ESR or


Simulation booked via the Safeguarding Team on ext 6058 or E-learning MCA level 2 accessed via ESR. Trust Target: 85% compliance level.

Each Line Manager has the responsibility to ensure their staff are afforded the opportunity to undertake all essential skill training.

8. REFERENCES AND ASSOCIATED DOCUMENTATIONThe Mental Capacity Act 2005

Mental Capacity Act 2005 Code of Practice 2007

The Mental Health Act 2007

The Law Society Deprivation of Liberty: A practical guide 2015

Deprivation of Liberty Safeguards: A guide for Hospitals and care homes DH 2009

NHS England Safeguarding Adults: A guide for healthcare workers-Intercollegiate Document

Identifying a deprivation of Liberty: A practical guide. The law Society 2015

9. EQUALITY IMPACT STATEMENT

Portsmouth Hospitals NHS Trust is committed to ensuring that, as far as is reasonably practicable, the way we provide services to the public and the way we treat our staff reflects their individual needs and does not discriminate against individuals or groups on any grounds.

This policy has been assessed accordingly

Our values are the core of what Portsmouth Hospitals NHS Trust is and what we cherish. They are beliefs that manifest in the behaviours our employees display in the workplace. Our Values were developed after listening to our staff. They bring the Trust closer to its vision to be the best hospital, providing the best care by the best people and ensure that our patients are at the centre of all we do.

We are committed to promoting a culture founded on these values which form the ‘heart’ of our Trust:

Working together for patientsWorking together with compassionWorking together as one teamWorking together always improving

This policy should be read and implemented with the Trust Values in mind at all times.


10.MONITORING COMPLIANCE WITH PROCEDURAL DOCUMENTS

This document will be monitored to ensure it is effective and to assure compliance.

Minimum requirement to be monitored

Lead Tool Frequency of Report of

Compliance

Reporting arrangements

Lead(s) for acting on Recommendations

Quarterly monitoring

Head of Safeguarding

Documentation audit tool

Hampshire Tool kit

Safeguarding Committee

Monthly on IPR

Yearly to Safeguarding board

Policy audit report to:Safeguarding CommitteeTrust BoardQuality and Performance CommitteeSafeguarding Board

Head of Safeguarding


APPENDIX 1: MCA Toolkit - Part A – Assessment of Capacity


Tool to assess whether an individual lacks mental capacity in relation to a specific decision.

Person’s name

Address

Client Ref - AIS/NHS number

What is the decision that needs to be made? (See guidance notes)

What steps have been taken to help the person take the decision for themselves?(Explain how you have followed statutory principles 1 & 2)

What is the key information the person needs to understand in order to make this decision?


ASSESSMENT QUESTIONS1. Is there evidence

of an impairment of or disturbance in thefunctioning of the mind or brain (permanent or temporary) that may affect the

YES Impairment is present— record symptoms /behaviours or any relevant diagnoses that lead to your belief, (see guidance notes)If YES Proceed to Q.2 below

NO Impairment is not present — record evidence for this belief.If NO the person is deemed to have capacity -assessment is ended now.

Questions (2a)-(2d) concern the impact of the above impairment/disturbance upon the individual and whether it prevents them from making this specific decision at the time of assessment.

2a) With all possible help given is the person able to understand theinformation relevant to the decision?E.g.What is their understanding of decision in question? Can they tell you why they think the decision needs to be made? What do they think the

YES - able to understand info. Record views/evidence to show they understood it.

NO - unable to understand info. Record steps taken to explain info and views/evidence why they did not understand it.

b) Are they able to retain the information long enough to make the decision?

YES - able to retain info.record evidence.

NO - unable to retain information, record any help given and evidence.

c) Are they able to weigh the information as part of the decision making process?Are they able to understand the consequences of

YES - able to weigh information, record evidence.

NO - unable to weigh inforecord evidence.


d) Are they able to communicate the decision in any way?There may be many methods to communicate and assistance may be

YES - able to communicate, record evidence.

NO - unable to communicate, record evidence.

Date of assessment

How was the assessment completed? Who was present, where did it happen?

What is your professional relationship to the person being assessed?

Please indicate professional qualifications and/or the reason why you are the appropriate person to assess capacity in this instance.

Conclusion - If the answer to question 1. is YES and the answer to any part of question 2. a) - d) is NO then the person lacks capacity under the Mental Capacity Act (2005).

Fluctuating capacity: Always consider whether the person has fluctuating capacity and whether the decision can wait until capacity returns. If this is the case, explain and enter reassessment date in outcome below.


Outcome:

Decision maker/ assessor signature:


APPENDIX 2: MCA Toolkit – Part B – Best Interests Decision Making


Person’s

name

Address


Decision being consulted upon

Details of the assessment of capacity in relation to the above decision (Date carried out/ assessor/where a copy of the assessment can be found)

Specify the different options that are being considered

1.

2.


3.

Best Interests Consultation - Service UserConsultation with the person lacking capacity Supporting evidence (record here or note

here where the information is recorded on their case file/AIS etc)

What are the issues that are most relevant to the person who lacks capacity?

Specify their past and present wishes, feelings and concerns in relation to this decision.

What are the person’s values and beliefs (eg. religious, cultural, moral) in relation to this decision?

Does the person have any previously held instructions (eg. advance decisions) relevant to this decision? Give details


Are there any other “relevant circumstances” that should be taken into account in this case?

Best Interests Consultation - Relevant parties

Checklist of persons Details

Anyone named by the person lackingcapacity as someone to be consulted (state name and relationship)Anyone engaged in caring for the person or interested in their welfare (state name and relationship)

Any attorney appointed under an enduring or lasting power of attorney (state name andwhat kind of power has been donated i.e. Any deputy appointed by the Court of Protection (state name and the nature of the Court Order)

Independent Mental Capacity Advocate (IMCA)Where the person lacking capacity has nobody in the above 4 categories other than paid carers, and faces a decision about serious medical treatment or a change of residence, you will need to refer the person to the IMCA service in the area where they are currently residing(state name and which IMCA service)

Best Interests Consultation - Relevant parties (1)Name: Date:


Views:


Views:


Views:

Best Interests Consultation - Other relevant parties


Name(s)/Date(s)/Views (please list and explain if you have excluded any family or other relevant parties):

Best Interests Decision

Specify the option that is considered to be in the individual’s best interests.

Specify why this is the preferred option,including key benefits to the individual.

Please give details of why other options listed were not considered to be in the individual’s best interests. Please include details of any option that was not chosen because it was unlikely it could be


If your decision is at odds with anybody who was consulted please give details. Please include details of any interim decision(s) and what action will be taken to try and resolve the dispute. The decision maker to consider if an application to the Court of Protection is appropriate and proportionate in this




Decision maker: Date:

Manager: (if appropriate) Date:

APPENDIX 3: MCA Toolkit – Part C – Balance Sheet


Best Interests Decision – Balance Sheet

Person’s

name

Address


What is the best interests decision being considered?

What option is being considered? (Complete separate balance sheets for other options)

Consider all relevant factors, including, practical; emotional; welfare; medical; cultural and spiritual factors (please consider factors arising from the person’s own past and present ascertainable wishes first)

Advantages of the option Disadvantage of the option


Best Interests Decision – Balance Sheet (continued)Advantages of the option Disadvantage of the option


APPENDIX 4: MCA Toolkit – Part D – Risk Assessment


Best Interests Decision – Risk assessmentSee your local risk policy guidanceE.g. for HCC see ‘policy to promote independence and choice’ on Hantsweb and see DoH guidance ‘Independence, choice and risk: a guide to best practice in supported decision making.’

Person’s name

Address


What is the best interests decision /option that is being risk assessed?

1. What are the potential benefits?

2. How likely are these to be achieved?

3. What could go wrong?Is there a possibility that anyone may be harmed?

4. a) How likely is this to occur? b) if something went wrong, what would the severity of the outcome

5. What are the existing factors which promote benefitand reduce the chances of anything going wrong?6. What additional actions would promote benefits and reduce the chances of something going wrong?


7. What risks will remain after action plan is in place?


APPENDIX 5: MCA Toolkit – Part E – Best Interests Meeting Agenda


Best Interests Consultation Meeting AgendaAttendees should be sent a written invitation explaining the purpose of the meeting. A template letter (for HCC use only) is available in the Adult Services - Social Care Practice Manual

(please read out all sections contained in the boxes below)

1. Confidentiality and respect. (read)

This meeting is subject to equal opportunities and anti-discriminatory guidance. Matters discussed at this meeting will remain confidential and only be shared on a need to know basis.

Principles of courtesy and respect should be observed throughout the meeting.

There will not be a verbatim record of the meeting but there will be a summary of the information presented and discussed. Amendments will therefore only be circulated where the information recorded is factually incorrect or where the meaning of what was actually said is substantially altered by the way it is recorded.

2. Decision and decision maker. 2.1 (read)

This is a meeting, held in respect of: <person’s name>

Address: <person’s address>

This meeting will be held in line with the principles and provisions of the Mental Capacity Act 2005, to assist the decision maker to consider all relevant factors required to make a decision in <name>’s best interests and to consult with interested parties.

The relevant decision(s) that we are consulting interested parties on is (are)...

<refer to decision given in the accompanying ‘assessment of capacity’ >

2.2 Who is presentWhere possible the person (P) should be invited to attend the meeting. Where this is not possible please record the reason in your meeting notes and inform those present.

All interested parties to introduce themselves and state their relationship to P and to the specific decision (not their views or opinions at this stage)


Identify which participants are ‘significant’ - whose agreement is required to implement a best interests decision without applying to the Court of Protection.

2.3 Determine the identity of the decision maker (the person doing the act or offering the service)

Identify if there are any Attorneys, court appointed deputies or advance decisions to refuse treatment in place and if they are relevant to this decision. If there is someone appointed with the legal authority to make this specific decision, a best interests decision is not appropriate.

3. Assessment of Capacity

3.1 (read)

Principle 1 of the Mental Capacity Act presumes that a person has capacity unless demonstrated not to.

Principle 2 requires us to give a person all reasonable assistance to make the decision for themselves.

Principle 3 allows a person to make unwise decisions and not to be deemed to lack capacity just because they make an unwise decision.

We are having a best interests meeting because <name> has been assessed as lacking the mental capacity to make the relevant decision(s) for themselves.

3.2 Assessment report from the decision maker

Include what steps have been taken to help P make the decision Discussion, seek views of those present Record any agreement or dispute about the state of mental capacity for this

decision

If there is a dispute:

3.3 Action plan to resolve the dispute

Consider jointly assessing P, second opinion assessments etc. Attendees should be sent a letter highlighting what issues are disputed and

what action needs to be taken. A template letter (for HCC use only) is available in the Adult Services - Social Care Practice Manual

4. Best Interests4.1 (read)

Our aim is to apply the best interests checklist from the Mental Capacity Act and to adhere to principles 4 and 5 of the Act.


Principle 4 - and decision made or act done on behalf of a person who lacks capacity to decide for themselves will be done in their best interests

Principle 5 - Before making a decision in a person’s best interests, less restrictive options that may achieve the required purpose will be considered.

4.2 OptionsOutline all options that could be considered to be solutions to P’s relevant decision, whether you consider them to be suitable or not.

4.3 Consider:

P’s past and present views, beliefs and values

o from P themselves - identify how P has been involved in this decision making process o from friends and family

o from advocateo from any other source

Views of anyone named by P as someone to involve in the decision making Views of non-professional interested parties Views of any LPAs/deputies Views from professionals with an interest in P’s care Assessments of need, health, risk or other specialist assessments

4.4 Review of options

Consider which option from 4.2 appears to be the least restrictive of P’s right and freedom of action, and most in keeping with P’s own views.

Can the options identified in 4.2 be achieved?

Record views and evidence for this

• Can the purpose be met by each option?• What is the outcome of the positive risk assessment

http://www3.hants.gov.uk/adult-services/independence-choice-procedure.html

• Have the risks of harm and potential benefits of the options been considered and weighed?

• What actions can be taken to reduce or manage any identified potential harms?


4.5 Any other contributions

(ask all participants if they have anything further to add)

4.6 Outcome

Thank attendees for their contributions and outline what happens next:

• All viewpoints will be considered• A decision will be reached outside of the meeting within <number of> days.• All parties will be informed of the outcome in writing• In the meantime any further enquiries/concerns should be directed to

<decision maker>Following the meeting attendees should be sent a letter informing them of the decision. A template letter (for HCC use only) is available in the Adult Services - Social Care Practice Manual


EQUALITY IMPACT SCREENING TOOLTo be completed and attached to any procedural document when submitted to the appropriate

committee for consideration and approval for service and policy changes/amendments.

Stage 1 - Screening

Title of Procedural Document: Mental Capacity Act 2005 Policy

Date of Assessment 04/03/19 Responsible Department

Safeguarding Service

Name of person completing assessment

Sarah Thompson Job Title Head of Safeguarding

Does the policy/function affect one group less or more favourably than another on the basis of :

Yes/No Comments

Age No

Disability No

Gender reassignment No

Pregnancy and Maternity No

Race No

Sex No

Religion or Belief No

Sexual Orientation No

Marriage and Civil Partnership No

If the answer to all of the above questions is NO, the EIA is complete. If YES, a full impact assessment is required: go on to stage 2, page 2

More Information can be found be following the link below

www.legislation.gov.uk/ukpga/2010/15/contents

Stage 2 – Full Impact AssessmentMental Capacity Act 2005 Policy Version: 6Issue Date: 15 April 2019Review Date: 14 April 2021 (unless requirements change) of 52

http://www.legislation.gov.uk/ukpga/2010/15/contents

What is the impact Level of Impact

Mitigating Actions(what needs to be done to minimise /

remove the impact)

Responsible Officer

Monitoring of Actions

The monitoring of actions to mitigate any impact will be undertaken at the appropriate level

Specialty Procedural Document: Specialty Governance CommitteeClinical Service Centre Procedural Document: Clinical Service Centre Governance CommitteeCorporate Procedural Document: Relevant Corporate Committee

All actions will be further monitored as part of reporting schedule to the Equality and Diversity Committee
