WHAT IS THE MENTAL CAPACITY ACT (2005)?
The Mental Capacity Act is designed to protect people who can’t make decisions for themselves or lack the mental capacity to do so.
THE MENTAL CAPACITY ACT
The act’s purpose is:
- To allow adults to make as many decisions as they can for themselves.
- To enable adults to make advance decisions about whether they would like future medical treatment.
- To allow adults to appoint, in advance of losing mental capacity, another person to make decisions about personal welfare or property on their behalf at a future date.
- To allow decisions concerning personal welfare or property and affairs to be made in the best interests of adults when they have not made any future plans and cannot make a decision at the time.
THE MENTAL CAPACITY ACT
- To ensure an NHS body or local authority will appoint an independent mental capacity advocate to support someone who cannot make a decision about serious medical treatment, or about hospital, care home or residential accommodation, when there are no family or friends to be consulted.
- To provide protection against legal liability for carers who have honestly and reasonably sought to act in the person’s best interests.
- To provide clarity and safeguards around research in relation to those who lack capacity.
Children under 16
- The Act does not generally apply to people under the age of 16 but there are two exceptions;
- The Court of Protection can make decisions about a child’s property or finances (or appoint a deputy to make these decisions) if the child lacks capacity to make such decisions within Section 2(1)* of the Act and is likely to still lack capacity to make financial decisions when they reach the age of 18 (Section 18(3)
- Offences of ill treatment or wilful neglect of a person who lacks capacity Within Section 2(1)* can also apply to victims younger than 16 (Section 44).
YOUNG PEOPLE AGED 16-17
- Most of the Act applies to young people aged 16–17 years, who; may lack capacity within Section 2(1)* to make specific decisions
- There are 3 exceptions:-
1) Only people aged 18 and over can make a Lasting Power of Attorney
2) Only people aged 18 and over can make an advance decision to refuse medical treatment
3) The Court of Protection may only make a statutory will for a person aged 18 and over.
- A 16 or 17 year old who lacks capacity to consent can be treated under section 5 of the MCA
- The person providing care or treatment must follow the MCA`s principles
- Any action taken must be reasonably believed to be in the young persons best interests
- Parents, those with parental responsibility and those involved in the care of the young person should be consulted
- This would be unless the young person did not consent to this or they felt it would breach their confidentiality
- Any known views of the young person must be considered
- If legal proceedings are required to resolve disputes regarding care, treatment or welfare these may be dealt with under the MCA or the Children’s Act 1989
DEFINING CAPACITY – What do we mean by capacity?
Mental Capacity is the ability to make decisions
Lack of capacity can be temporary or permanent
WHO MAY LACK CAPACITY?
- Individuals who may have had;
- A Stroke
- Brain injury
- Mental health Issues
- Unconscious or semi conscious
- Learning disabilities
- Physical conditions can also impair the individuals ability to make decisions
such as – loud ,intimidating, unfamiliar environments and even trauma, loss
and physical health problems
THE FIVE CORE PRINCIPLES
A person must be assumed to have capacity unless it is established that they lack capacity.
A person is not to be treated as unable to make a decision unless all practicable (doable) steps to help them to do so have been taken without success.
A person is not to be treated as unable to make a decision merely because they make an unwise decision.
An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.
- Assessment of capacity to make a decision is an integral part of any assessment about care or treatment.
- You should assume a person has the capacity to make a specific decision unless there is evidence to show otherwise.
- An assumption of capacity should always be the starting point
- A persons capacity can vary due to;
- The person’s behaviour
- Their circumstances
- The concerns raised by someone else
Decisions made on behalf of individuals who lack capacity must, always be in their best interests
Any care carried out on behalf of the individual lacking capacity, must always be in their best interests
Decisions under the act may be made by people appointed to do so by people legally appointed to do so or staff involved in their care
The person who makes decisions on behalf of the individual who lacks capacity, is referred to as the `Decision Maker`
WHO IS THE DECISION MAKER
- The `decision maker` is a term used to describe the person who consents to treatment on behalf of the individual who lacks capacity
- This may be Health and Care professionals
- Day to day decisions may be made by family members, unpaid carers etc
- When decisions are made regarding people who lack capacity ,sensitive information must often be shared
- The information is required in order to ensure that decisions are acting in the persons best interests
- When releasing information ,the following questions must be considered;
- Is the person requesting the information acting on behalf of the person who lacks capacity?
- Is the disclosure in the best interests of the person who lacks capacity?
Sharing Information – NHS CODES OF PRACTICE
The guidance states;
- “Where a person is incapacitated and unable to provide consent, information should only be disclosed in the patients best interest, and then only as much information as is needed to support their care.”
Department of Health(2007)
Disclosure of and access to information is regulated by ;
- Data Protection Act 1998
- Common Law Duty of Confidentiality
- Professional Codes of Conduct
- The Human Rights Act 1998
Day-to-day-records and reviews,(elaborate records are not required on every occasion about decisions/acts of care.)
Professional records- records of assessments of capacity.
Formal reports as required.
WHAT IS MEANT BY – DEPRIVATION OF LIBERTY?
- Some people who live in hospitals and care homes can’t make their own decisions about their care or treatment because they lack the mental capacity to do so.
- They need more care and protection than others to make sure they don’t suffer harm.
- Hospitals and care homes should always try to avoid this, but sometimes there is no alternative to deprive a person of their liberty because it is in their best interests.
- Therefore, in some cases members of this vulnerable group need to be deprived of their liberty for treatment or care because this is necessary in their best interest to protect them from harm.
DEPRIVATION OF LIBERTY SAFEGUARDS(DOLS)
Introduced into Mental Capacity Act 2005 through the Mental Health Act 2007.
DOLS are there to prevent arbitrary decisions that deprive vulnerable people of their liberty.
DOLS are there to protect individuals and if they do need to be deprived of their liberty, they must be given right of appeal, representatives, and for the deprivation to be reviewed and monitored.
DOLS are for the purpose of giving a person care and treatment.
Deprivation of liberty can only be authorised in a hospital or registered care home.
DEPRIVATION OF LIBERTY SAFEGUARDS(DOLS)
- Deprivation of Liberty Safeguards strengthen the rights of hospital patients and those in care homes, as well as ensuring compliance with the European Convention on Human Rights.
- Any deprivation of liberty is lawful only if there are safeguards ,such as the Mental Health Act 1983 or have a court order in place.
- DOLS-THE BOURNEWOOD CASE
THE BOURNEWOOD CASE
- The European Court of Human Rights and UK courts have determined a number of cases about deprivation of liberty. Their judgements indicate that the following factors can be relevant to identifying whether steps taken involve more than restraint and amount to a deprivation of liberty .It is important to remember that this is not exclusive ;other factors may arise in future in particular cases.
- A decision has been taken by the institution that the person will not be released into the care of others, or permitted to live elsewhere, unless the staff in the institution consider it appropriate.
- A request by carers for a person to be discharged to their care has been refused.
- The person is unable to maintain social contacts because of restrictions placed on their access to other people.
- The person loses autonomy because they are under continuous supervision and control.
Restriction of liberty of movement is restraint
Physical restraint is lawful if the following two conditions are met;
- Where a person who lacks capacity resists personal care, healthcare and treatment
- Reasonably believe that restraint is necessary to prevent harm to the person who lacks capacity
- The amount or type of restraint used and the amount of time it lasts must be a proportionate response to the likelihood and seriousness of harm.
(MCA section 5 & 6: code of practice)
A carer may need to hold a persons arm while they cross the road if the person does not understand the dangers of the roads. But it would not be a proportionate response to stop the person going outside at all.
It may be appropriate to have a secure lock on a door that faces a busy road, but it will not be a proportionate response to lock someone in a bedroom all the time to prevent them from attempting to cross the road.
(MCA Code of Practice 6.47)
THE AUTHORITIES DUTIES
Hospitals and Care Homes (these are called Managing Authorities) have a duty to:
- Provide care and treatment in ways that do not deprive a person of their liberty, or if this is impossible;
- Apply to the Supervisory Body for authorisation of the deprivation of liberty.
The Authorities duties are to
- Set any necessary conditions to make sure the person’s care/treatment meets their needs in their best interests
- Set a time-scale for how long a deprivation can last
- Keep records of who is being deprived of their liberty.
DEPRIVATION OF LIBERTY SAFEGUARDS
The Supervisory Body is responsible for commissioning the required assessments to determine whether the person concerned:
- Comes under the deprivation of liberty safeguards
- Is deprived of their liberty, and if so, whether it is in their best interests.
If the Supervisory Body authorises a deprivation of liberty, this will be for a limited time (up to a maximum of 12 months) and the Supervisory Body may put conditions in place to make sure the person’s welfare is safeguarded.
DEPRIVATION OF LIBERTY SAFEGUARDS
- The Supervisory Body will also make sure that the person being deprived of their liberty has a ‘Representative’ who will keep in touch with the person, support them in all matters regarding the authorisation, and ask for a review of the authorisation when necessary. This Representative would usually be a family member or friend.
- In the absence of anyone suitable, the Supervisory Body will arrange a paid advocate.
- The Safeguards also allow people the right of appeal against a decision in a court of law
PROCESS FOR QUERYING DOLS
Discuss the issue with the hospital or care home. They may be able to change a person’s care or treatment to make sure the person is not being deprived of their liberty, or may be able to explain why a person is not actually deprived of their liberty.
Request that the Supervisory Body reviews the person to see whether they are being deprived of their liberty. This request can be by telephone, fax or email.
DEPRIVATION OF LIBERTY SAFEGUARDS
- Hospital and registered care homes have the responsibility for managing the Deprivation of Liberty Safeguards.
- If unlawful Deprivation of Liberty is suspected in a hospital or registered care home .If the issue is not resolved ,it can be raised with the DOLS co-ordinator
- If there is a Deprivation of Liberty issue outside of a hospital or registered care home it may be a safeguarding issue.
- Deprivation of Liberty may be used as a protective measure/outcome from safeguarding.
LASTING POWER OF ATTORNEY
There are two different types of Lasting Power of Attorney which cover a range of circumstances :
Personal welfare (including healthcare)
Property and affairs (finance)
WHO CAN BE AN ATTORNEY?
An Attorney must be over 18years old.
An individual ,can be an attorney for more than one person.
Staff should not normally act as attorneys.
ENDURING POWER OF ATTORNEY
- Established under previous legislation to manage property and financial affairs.
- No new Enduring Powers Of Attorney under MCA is implemented.
- Existing EPA will be valid whether registered or not.
An advanced decision is prepared when a person has capacity.
It is a decision to refuse specific treatment and is binding.
Other expressions of an individuals preferences are not binding but must be considered. (wishes/beliefs…)
Staff must be able to recognise when an advanced decision is valid.
An advanced decision must be written ,signed and witnessed if life sustaining treatment is being refused.