Mental Capacity Act Mental Capacity Act (2005)(2005)

Julie FosterJulie Foster

End of Life Lead Cumbria and LancashireEnd of Life Lead Cumbria and Lancashire

Plan of SessionPlan of Session

• Why we needed the Act and who it Why we needed the Act and who it affectsaffects

• The Mental Capacity Act principlesThe Mental Capacity Act principles

• Assessing capacityAssessing capacity

• Best interestsBest interests

• The Role of the IMCAThe Role of the IMCA

Why We Needed the Act Why We Needed the Act and Who It Affectsand Who It Affects• Mental capacity issues potentially affect Mental capacity issues potentially affect

everyoneeveryone

• Over 2 million people in England and Wales Over 2 million people in England and Wales lack mental capacity to make some decisions lack mental capacity to make some decisions for themselves, for example, people with:for themselves, for example, people with:– dementiadementia– learning disabilitieslearning disabilities– mental health problemsmental health problems– stroke and head injuriesstroke and head injuries

Cont…..Cont…..

• Up to 6 million family and unpaid carers, and Up to 6 million family and unpaid carers, and people involved in health and social care who people involved in health and social care who may provide care or treatment for themmay provide care or treatment for them

• Previous common law lacked consistencyPrevious common law lacked consistency• People’s autonomy not always respectedPeople’s autonomy not always respected• People can be written off as incapable People can be written off as incapable

because of diagnosisbecause of diagnosis• No clear legal authority for people who act on No clear legal authority for people who act on

behalf of a person lacking mental capacitybehalf of a person lacking mental capacity

Cont’d….Cont’d….

• Limited options for people who want Limited options for people who want to plan ahead for loss of mental to plan ahead for loss of mental capacitycapacity

• No right for relatives and carers to be No right for relatives and carers to be consultedconsulted

• Enduring Powers of attorney seen as Enduring Powers of attorney seen as open to abuseopen to abuse

Principles of the ActPrinciples of the Act

• Assume a person has capacity unless proved Assume a person has capacity unless proved otherwiseotherwise

• Do not treat people as incapable of making a Do not treat people as incapable of making a decision unless you have tried all practicable steps decision unless you have tried all practicable steps to help themto help them

• Do not treat someone as incapable of making a Do not treat someone as incapable of making a decision because their decision may seem unwisedecision because their decision may seem unwise

• Do things or take decisions for people without Do things or take decisions for people without capacity in their best interestscapacity in their best interests

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

Assumption of Capacity and Assumption of Capacity and Supported Decision MakingSupported Decision Making• Act sets out an assumption of capacityAct sets out an assumption of capacity• Obligation to take all practicable steps to Obligation to take all practicable steps to

help the person take his or her own decisionhelp the person take his or her own decision• Act makes it clear that a person’s age, Act makes it clear that a person’s age,

appearance, condition or behaviour does not appearance, condition or behaviour does not by itself establish a lack of mental capacityby itself establish a lack of mental capacity

• Must give information in a clear and easy Must give information in a clear and easy way to understandway to understand

• Must help the person who lacks capacity to Must help the person who lacks capacity to communicatecommunicate

Assessing CapacityAssessing Capacity

• Act sets out the best practice approach to Act sets out the best practice approach to determining capacity - whether an determining capacity - whether an individual is able, at a particular time of individual is able, at a particular time of making a particular decisionmaking a particular decision

• Decision specificDecision specific

• Detail on what is involved in assessing Detail on what is involved in assessing capacity is covered in the Code of Practicecapacity is covered in the Code of Practice

What proof of lack of What proof of lack of capacity does the Act capacity does the Act require?require?

Two-stage test:-Two-stage test:-

Does the person have an Does the person have an impairment of, or a disturbance in impairment of, or a disturbance in the functioning of, their mind or the functioning of, their mind or brain? brain?

Examples may include:Examples may include:

• people with dementiapeople with dementia• people with significant learning disabilitiespeople with significant learning disabilities• the long-term effects of brain damagethe long-term effects of brain damage• People who are experiencing delirium or People who are experiencing delirium or

confusionconfusion• concussion following a head injuryconcussion following a head injury• people who are under the influence of

drugs or alcohol• people who are imminently dying and who people who are imminently dying and who

no longer have full mental capacityno longer have full mental capacity

Does the impairment or disturbance Does the impairment or disturbance mean that the person is unable to mean that the person is unable to make a specific decision when they make a specific decision when they need to?need to?

A person is unable to make a A person is unable to make a decision if they cannot:decision if they cannot:

1.1. understand information about the understand information about the decision to be made (the Act calls this decision to be made (the Act calls this ‘relevant information’)‘relevant information’)

2.2. retain that information in their mindretain that information in their mind

3.3. use or weigh that information as part of use or weigh that information as part of the decision-making process, orthe decision-making process, or

4.4. Communicate their decision (by talking, Communicate their decision (by talking, using sign language or any other means)using sign language or any other means)

Case Study:Case Study:MargaretMargaret

68 year old woman with LD. Has been poorly 68 year old woman with LD. Has been poorly and now needs a ‘whipples Resection’. and now needs a ‘whipples Resection’. How would you:How would you:

Help her understand the information about the Help her understand the information about the decision to be madedecision to be made

Check that she could retain that informationCheck that she could retain that information Check that she could use or weigh that Check that she could use or weigh that

information as part of the decision-making information as part of the decision-making processprocess

Help her Communicate her decisionHelp her Communicate her decision

What does the Act mean What does the Act mean when it talks about ‘best when it talks about ‘best

interests’?interests’?

Best InterestsBest Interests

• All decisions must be made in the best All decisions must be made in the best

interests of the person who lacks capacityinterests of the person who lacks capacity

• It is the key principle that governs all It is the key principle that governs all

decisions made for people who lack decisions made for people who lack

capacitycapacity

• Must consider all relevant circumstancesMust consider all relevant circumstances

Best Interests cont’d….Best Interests cont’d….

• Act doesn’t define best interests but does Act doesn’t define best interests but does

give a checklist:give a checklist:– Must involve the person who lacks capacityMust involve the person who lacks capacity

– Have regard for past and present wishes and Have regard for past and present wishes and feelingsfeelings

– Consult with others who are involved in the care of Consult with others who are involved in the care of the personthe person

– There can be no discriminationThere can be no discrimination

– Least restrictive alternative/interventionLeast restrictive alternative/intervention

What to considerWhat to consider

• MedicalMedical – not just the outcome, but what will – not just the outcome, but what will be the burden and benefit of the treatment.be the burden and benefit of the treatment.

• WelfareWelfare – How will this impact (for better or – How will this impact (for better or worse) on the way the person lives their life?worse) on the way the person lives their life?

• SocialSocial – What will this do to the person’s – What will this do to the person’s relationships etc?relationships etc?

• EmotionalEmotional – How will this person feel, react? – How will this person feel, react?

What about What about ethicsethics??

Case Study:Case Study: JohnJohnJohn is an 85 year old with end stage dementia. He has been loosing weight over the last 6 mths and is now just 6 stone. He has been hospitalised twice recently with chest infections. He is now very poorly and not taking very much food or fluids. John’s GP has prescribed nutritional drinks and has advised the care staff on making John comfortable in his last few days. Additionally, members of the district nursing team visit regularly in relation to end of life care.

You recognise that John is dying and You recognise that John is dying and phone his daughter, she states that she phone his daughter, she states that she does not want come but wants you to does not want come but wants you to call for an ambulance to admit him to call for an ambulance to admit him to the hospital.the hospital.•What do you do?

•Who is the decision maker?

•Assessment of capacity – 2 stage test

•Determination of capacity

•Best Interests process

Admission to hospital. Admission to hospital. The following options were listed:The following options were listed:Option i -Option i - Admit to hospitalAdmit to hospital

Option i benefitsOption i benefits

•Medical care would Medical care would be on handbe on hand

Option i risksOption i risks

•John may have an undignified deathJohn may have an undignified death

•John might die in transit John might die in transit

•Nursing and medical staff do not Nursing and medical staff do not know Johnknow John

•John would be in strange John would be in strange surroundingssurroundings

•Hospital admission areas are often Hospital admission areas are often busy, noisy environments; John’s busy, noisy environments; John’s needs may not be prioritisedneeds may not be prioritised

•John may become disturbed as in John may become disturbed as in previous admissions previous admissions

•John’s life may be prolonged by John’s life may be prolonged by active medical intervention until his active medical intervention until his notes are receivednotes are received

•Prolonging life may cause more Prolonging life may cause more discomfortdiscomfort

•No chance of a positive outcome (i.e. No chance of a positive outcome (i.e. preserving life)preserving life)

Option i -Option i - NOT to Admit to hospitalNOT to Admit to hospital

Option ii benefitsOption ii benefits

•John can die in his own bed, John can die in his own bed, in his own roomin his own room

•staff around John know him staff around John know him wellwell

•John may remain John may remain comfortable in his last few comfortable in his last few hourshours

•John’s care will continue as John’s care will continue as outlined by the GP and district outlined by the GP and district nursenurse

•John will be able to have a John will be able to have a dignified death in peaceful dignified death in peaceful surroundingssurroundings

Option ii risksOption ii risks

Admit to Hospital Admit to Hospital Not to admit to HospitalNot to admit to Hospital

Option i Option i benefitsbenefits•Medical care would be Medical care would be on handon hand

Option i risksOption i risks•John may have an John may have an undignified deathundignified death

•John might die in transit John might die in transit

•Nursing and medical Nursing and medical staff do not know Johnstaff do not know John

•John would be in John would be in strange surroundingsstrange surroundings

•Hospital admission Hospital admission areas are often busy, areas are often busy, noisy environments; noisy environments; John’s needs may not be John’s needs may not be prioritisedprioritised

•John may become John may become disturbed as in previous disturbed as in previous admissions admissions

•John’s life may be John’s life may be prolonged by active prolonged by active medical intervention medical intervention until his notes are until his notes are receivedreceived

•Prolonging life may Prolonging life may cause more discomfortcause more discomfort

•No chance of a positive No chance of a positive outcome (i.e. preserving outcome (i.e. preserving life)life)

Option ii Option ii benefitsbenefits•John can die in his John can die in his own bed, in his own own bed, in his own roomroom

•staff around John staff around John know him wellknow him well

•John may remain John may remain comfortable in his last comfortable in his last few hoursfew hours

•John’s care will John’s care will continue as outlined by continue as outlined by the GP and district the GP and district nursenurse

•John will be able to John will be able to have a dignified death have a dignified death in peaceful in peaceful surroundingssurroundings

Option ii risksOption ii risks

Outcome:Outcome:• The decision maker determined that it The decision maker determined that it

would be in the John’s best interests to would be in the John’s best interests to remain within the care home until he remain within the care home until he dieddied

• The decision maker contacted John’s The decision maker contacted John’s daughter to explain her decision and daughter to explain her decision and the reasons why the reasons why

• A copy of the BI decision process she A copy of the BI decision process she had followed was placed in John’s notes had followed was placed in John’s notes and faxed to the GP and DN Team.and faxed to the GP and DN Team.

Planning ahead: for a time Planning ahead: for a time when a person might lack when a person might lack capacitycapacity• The Act provides new and clearer defined The Act provides new and clearer defined

ways of planning ahead: ways of planning ahead:

• 1. Lasting Powers of Attorney (LPA’s)1. Lasting Powers of Attorney (LPA’s)

• 2. Advance decisions to refuse treatment2. Advance decisions to refuse treatment

• 3. Making your wishes and feelings known3. Making your wishes and feelings known

Lasting Powers of Attorney Lasting Powers of Attorney (LPA)(LPA)• Enables people to appoint someone they Enables people to appoint someone they

know and trust to make decisions for themknow and trust to make decisions for them

• Two types of LPA Two types of LPA – ‘‘Property and affairs’ which replaces the current Property and affairs’ which replaces the current

EPA EPA – ‘‘Personal welfare’ which is a new way to appoint Personal welfare’ which is a new way to appoint

someone to make health and welfare decisionssomeone to make health and welfare decisions

• Must be made whilst the person has capacityMust be made whilst the person has capacity

Lasting Powers of Attorney Lasting Powers of Attorney (LPA) cont’d….(LPA) cont’d….

• Must be registered with the Public Must be registered with the Public GuardianGuardian

• Chosen attorneys can only make Chosen attorneys can only make decisions in the persons best decisions in the persons best interestsinterests

Advance Decisions to Advance Decisions to Refuse TreatmentRefuse Treatment• Allows the person to refuse specified medical treatment in Allows the person to refuse specified medical treatment in

advanceadvance

• Are legally binding now but Act gives greater safeguardsAre legally binding now but Act gives greater safeguards

• Must be made when you have capacity and comes into effect if Must be made when you have capacity and comes into effect if

you lack capacityyou lack capacity

• Must be clear about which treatment it applies to and when and Must be clear about which treatment it applies to and when and

must be in writing and witnessed if it applies to life-sustaining must be in writing and witnessed if it applies to life-sustaining

treatmenttreatment

• Doctors can provide treatment if they have any doubt that the Doctors can provide treatment if they have any doubt that the

advance decision is valid and applicableadvance decision is valid and applicable

Making wishes and feelings Making wishes and feelings knownknown• It is important that people are given the It is important that people are given the

opportunity to make their wishes and feelings opportunity to make their wishes and feelings knownknown

• There is no formal process for this but written There is no formal process for this but written statements given to professionals, carers, family statements given to professionals, carers, family or friends are likely to carry weightor friends are likely to carry weight

• Decision makers will have to consider peoples Decision makers will have to consider peoples wishes and feelings when deciding what is in their wishes and feelings when deciding what is in their best interestsbest interests

The Independent Mental The Independent Mental Capacity Advocate (IMCA)Capacity Advocate (IMCA)• Extra safeguard for particularly vulnerable Extra safeguard for particularly vulnerable

people in specific situations (April 2007)people in specific situations (April 2007)• Who? - People with no-one to consult (other Who? - People with no-one to consult (other

than paid carers) or if conflict with carersthan paid carers) or if conflict with carers• When? – serious medical treatment; care home When? – serious medical treatment; care home

movesmoves• Duty on LA’s or NHS bodies to provide this Duty on LA’s or NHS bodies to provide this

service service • Commissioned by LAs with PCT partners – Commissioned by LAs with PCT partners –

included in published consultation response included in published consultation response (April 2006)(April 2006)

IMCA FunctionsIMCA FunctionsSerious medical treatmentSerious medical treatmentTreatment which involves “providing, withholding Treatment which involves “providing, withholding

or withdrawing treatment”or withdrawing treatment”Changes to residenceChanges to residenceWhere LA propose to make changes to a person’s Where LA propose to make changes to a person’s

residence for more than 8 weeks, or where an residence for more than 8 weeks, or where an NHS body propose to make changes to a NHS body propose to make changes to a person’s residence for over 28 daysperson’s residence for over 28 days

Urgent treatment/moves exempt from referralsUrgent treatment/moves exempt from referralsAdditional functionsAdditional functionsSupport/representation at care reviews where the Support/representation at care reviews where the

above decisions are discussed. Adult protection above decisions are discussed. Adult protection meetings ( Apr 08 – Bournewood cases)meetings ( Apr 08 – Bournewood cases)

An IMCA will:An IMCA will:

• Support a person who lacks capacitySupport a person who lacks capacity• Obtain and evaluate relevant information on Obtain and evaluate relevant information on

persons behalfpersons behalf• Not substitute decision maker, for LA/NHSNot substitute decision maker, for LA/NHS• Do not give opinionsDo not give opinions• Ascertain the persons wishes and feelingsAscertain the persons wishes and feelings• Investigate if the person has an advance Investigate if the person has an advance

decision.decision.• Ascertain alternative course of action, and Ascertain alternative course of action, and

present this information to decision maker.present this information to decision maker.• Obtain further medical opinion when necessary.Obtain further medical opinion when necessary.

IMCAIMCA

• Statutory functionStatutory function• No choice but to referNo choice but to refer• Know and understand the criteriaKnow and understand the criteria• Non instructed advocacyNon instructed advocacy• Can access recordsCan access records• Right to meet in private room with personRight to meet in private room with person• Reactive service ‘decision makers’ make Reactive service ‘decision makers’ make

referrals.referrals.• Time and issue specific workTime and issue specific work

New criminal offences of ill-New criminal offences of ill-treatment or wilful neglecttreatment or wilful neglect

• New offences apply to:-New offences apply to:-– People who have the care of a person who People who have the care of a person who

lacks capacitylacks capacity– An attorney under LPA or EPAAn attorney under LPA or EPA– A deputy appointed by the courtA deputy appointed by the court

Criminal offences can result in a fine and/or Criminal offences can result in a fine and/or a sentence of imprisonment of up to five a sentence of imprisonment of up to five yearsyears