The British Psychological Society Social Care of Institute of Excellence (SCIE) Audit Tool for Mental Capacity Assessments. Draft November 2009

Transcription

1 The British Psychological Society Social Care of Institute of Excellence (SCIE) Audit Tool for Mental Capacity Assessments Draft November

2 Content List Contributors 1. Introduction 2. Rationale for the project 3. Purpose of the guidance 4. Development of the audit tool methodology 4.1. Establishing standards 4.2. Identification of the sources for the standards 4.3. Detailed commentary on each standard 5. Status of this publication 6. Standards for an Assessment under the MCA (2005) 7. References Appendix 1 Audit tool 2

3 1. Introduction The Mental Capacity Act came into law in 2005 and has been implemented in stages over the following years. It is recognised that while there now is a statutory framework to protect and empower people who may lack capacity or who are at risk of compromised capacity, it nevertheless requires widespread cultural change and alteration to practices in a wide range of care settings to fully ensure that the aims of the Act are met. The Code of Practice for the MCA was published in 2006; this is generally regarded as an exceptionally well written and useful document to guide people through the procedures of the Act. It uses a range of case scenarios to illustrate how issues are dealt with; however it does not fully address some of the complexities that arise. A range of publications has provided additional guidance. There has been detailed guidance from lawyers, for instance Dimond s guide to the legal aspects of the act, Dimond (2008), Jones Mental Capacity Act Manual (Jones, 2009), guidance for doctors and lawyers (BMA & The Law Society, 2004), social work (Brown and Barber, 2008, Barber et al. 2009), as well as more specific publications such as for End of Life Care (Chapman, 2008) or for specific areas of capacity, e.g., financial decision making (Suto et al, 2007). The British Psychological Society has had an active role in contributing to the development of expertise in the area of Mental Capacity; the Interim Guidance on the Assessment of Capacity was published in 2006; this was followed in 2007 by a short reference guide produced jointly with the RCP on the assessment of capacity, funded by the Department of Health. The BPS has also gained funding for the production of Guidance on Best Interest Assessments (2008) and Research Guidance (2008). The BPS s proposal is for an audit tool that is designed primarily for evaluating formal assessments of capacity, carried out by Applied Psychologists, Speech and Language Therapists and other professional groups, often working in specialist services. It is suggested that this might represent the gold standard to support and guide developing expertise as the Mental Capacity Act enters fully into the culture of services for client groups where capacity may be impaired. Clinical audit is defined as "a quality improvement process that seeks to improve patient care and outcomes through systematic review of care against explicit criteria and the implementation of change" (National Institute for Clinical Excellence, 2002). The key component of clinical audit is that performance is reviewed to ensure that what should be done is being done, and if not it provides a framework to enable improvements to be made. A key component is establishing standards against which practice can be compared. The goal of this work is to ensure that practitioners are utilising, as much as possible, evidence based decision making in their capacity assessments by:- clarifying standards within capacity assessments, 3

4 identifying the sources of advice and expertise, assisting in ways of addressing complexity, and drawing this together in a user friendly way. 2. Rationale for the project Applied psychologists have generally engaged well with the MCA and have viewed it as a useful means to empower and protect vulnerable groups. However there has also been considerable anxiety about what constitutes a good enough capacity assessment and what assessment approaches might be included. One important question is how much reliance should be put on neuropsychological assessments (or other formal assessment tools), and whether these are the sole basis of psychological assessments or whether a wider range of approaches could be used. The BPS Interim Guidance provided a range of case scenarios giving illustrations of how capacity assessments might be approached and also addressed other areas such as professional issues and team approaches. However this was written before the act came into force and in the two years since the Act applied psychologists have developed further experience and considerable expertise, both within the profession and as part of teams and services. This seems a good time to bring this expertise together to generate and embed standards for the field. However the MCA covers a wide range of clients groups: people suffering from dementia, people with learning disabilities, those with physical disabilities and Acquired Brain Injury as well those with mental health problems. The decisions are also wide ranging covering many areas of health and well being. These standards are therefore based around the core requirements of the Act and professional standards of assessment rather than specifying specific approaches. Applied psychology assessments are likely to be more formal, more detailed and can be lengthy. Psychologists and other professional staff, such as speech and language therapists and psychiatrists tend to be called in for more specialist assessments in cases where others feel unable to make the decision without additional specialist opinion (Code of Practice 4.51). Some psychologists work in specialist units, most typically for those with Acquired Brain injury, where an essential part of the ongoing work of the unit, for all staff, is to assess and enhance capacity to enable people to return to life in the community with adequate support. In these settings there has been the development of expertise which can usefully be disseminated more widely. The experience of psychologists in Scotland, where a Mental Incapacity Act came into force in 2002 has been invaluable in assisting this. The audit tool is designed specifically in relation to the MCA for England and Wales although the principles would apply widely. 3. Purpose of the guidance 4

5 This document aims to set standards and to guide and enhance practice within professions and organisations Within this there are three functions this guidance aims to fulfil: 1. For the individual practitioner it provides a statement of the expected standard against which to review their own work either on their own or with their clinical supervisor. It can also be incorporated as part of the evidence base for Development Reviews (within the NHS as part of the KSF). In addition, it can be utilised as a training tool to target specific areas where practice needs to be improved. Jenny Sheldon is a Speech and Language Therapist and has started work in a general hospital where she is expected to assess capacity for those people on a stroke unit where they had communication problems. As part of supervision of her work the audit tool was used to evaluate her assessments; these came out as generally at a very high standard. But for B.10 Has the person had sufficient time to assimilate issues that have arisen? Have psychological aspects of adjustment to change been taken into account in their responses? and Section C Enhancing Capacity there were usually very limited responses. Jenny said that she had not thought that this was part of her role but also felt under pressure to give a definitive opinion quickly. It was agreed that she would start to build this into her assessments and discuss the implications with the clinical team. Raj Shah is an Occupational Therapist in a Learning Disability Team where they often are asked to help assess capacity to enter into sexual relationships. In his supervision he talks about the difficulty of addressing A.7 Has the level of knowledge/decision making to demonstrate the required capacity been stipulated in advance? He agrees with his supervisor that this could be a project he works on within the team to set clear standards and expectations in this area. This includes consulting with both service users and their families and as well as providing better guidance for the team in their assessments, also helps to deal with some of family concerns about this area. 2. It is also intended that this could be used within teams and/or services as part of the clinical governance to identify strengths and weaknesses of procedures and implementation. 5

6 An acute admission ward had a high number of people admitted for detoxification and would assess capacity (on various possible issues), but if people were judged to have capacity, would discharge them rapidly. After two people died soon after discharge the unit reviewed various aspects of care, including their approach to assessing capacity. They realised that they needed a more specialist input to how they dealt with B.9 Was there any assessment of whether the person demonstrated that they could identify and weigh risks and benefits for the specific issue? and worked with the Drug and Alcohol team to develop ways to assess this in more depth. They also identified that their responses to E.10 If the person is judged to have capacity are there recommendations for actions to provide support to empower and protect the person? needed improvement. A ward for older people in a general hospital in an ethnically diverse area was concerned about the extreme distress showed by some people who were judged to lack capacity and then, after Best Interest meetings, were moved into residential care. They studied the audit tool and chose one areas to audit - B12 Has the impact of religious/cultural/individual beliefs and values been taken into account? The ward group realised they did not fully appreciate how to assess this through their own lack of knowledge of other s cultures. They consulted with services users and families, community groups and religious leaders; this helped them in developing a set of questions for the assessment using appropriate language. One additional specific result was that the team worked more closely with families much earlier on the planning process where capacity appeared to be impaired to allow the person to have time to think about possible outcomes of their hospital stay (B.10 Has the person had sufficient time to assimilate issues that have arisen? Have psychological aspects of adjustment to change been taken into account in their responses?). 3. For professions involved in capacity assessments it provides a consensus statement of expected standards. 4. Development of the audit tool methodology The original audit tool was developed as part of training for Applied Psychologists as the Mental Capacity Act came into force and was used to analyse assessments as part of a number of workshops and amended in the light of feedback. At the start of the project, the tool was circulated within the various specialist groups of the BPS, through e mail groups, primarily in Neuropsychology, Learning Disability and Older Adults. Other professions were also invited to respond and there have been responses (to date) from the College of Occupational Therapists and Speech & Language Therapists. 6

7 4.1. Establishing standards The first stage was to clarify and confirm the standards expected. As the approaches required across the range of decisions, groups of people and contexts is extremely wide they were posed primarily as questions to prompt assessors to consider if this should be addressed and if so how. The audit cycle requires clarification of standards but also the source of these standards. This was the second phase and it was decided that the sources could be from: 1 The Mental Capacity Act 2 Mental Capacity Act Code of Practice 3 4 Practice 5 Research 6 Medico legal perspectives As part of the iterative consultation process these were identified for each standard. It is recognised that this work could be developed further and it is intended that as the audit tool is used and reviewed the evidence base for the standards will also be reviewed and extended Detailed commentary on each standard The third phase was to provide section by section a more detailed qualitative commentary to enable the assessor to address the issue, particularly if there should be complexity or dilemmas. These sections include: More detailed summaries of key works Comments on some of the complexities in these areas Examples of good practice Ideas for methodology to work through problematic issues These sections are included as hyperlinks; by necessity this is also a work in progress and it is hoped that this will be critiqued and amended as experience indicates. 5. Status of this publication This document provides standards and examples of good practice in assessing mental capacity. It is not intended to be nor can it provide definitive instruction to those undertaking an assessment. Anyone undertaking an assessment should use clinical supervision and local support and expertise to help them to decide how best to proceed. 7

8 6. Standards for an Assessment under the Mental Capacity Act (2005) Standard Rationale Source A Before starting the assessment A1 Are the circumstances and rationale for the assessment clear? Is there any aspect of the context that may affect the reliability or validity of the assessment? This sets the scene for the assessment and helps in the interpretation of findings, allowing any limitations to be identified (see E2) A2 Initiating assessment have there been checks:- A2.1a The diagnostic test Does the person reach the threshold for questioning capacity? because of an impairment of, or a disturbance in the functioning of the mind or brain MCA S 2 CoP A2.1b Why was capacity questioned for this specific decision? Need evidence for this CoP A2.2a.Do any of the exclusions apply either to the person? Or Age generally above 16 but complex see CoP MHA generally trumps the MCA but can be complex Advance Decisions to refuse treatment MCA and CoP (12) MCA and CoP (13) Medico Legal MCA and CoP (9) 8

9 A2.2b...to the decision? There are a number of decisions that cannot be taken on behalf of someone who lacks capacity, including marriage, sexual relations and parenting. MCA S and 62 and CoP A3 A4 Is the specific area of capacity clear? Is the question to be answered stated clearly and specifically? Could it be improved on? Is there more than one question? Is it clear that the person requesting the assessment is the actual decision maker? ultimately, it is up to the professional responsible for the person s treatment to make sure that capacity has been assessed Practice CoP 4.40 A5 Is there agreement about the amount of knowledge/evidence required to reasonably determine capacity? practise B The assessment B1 B2 Have consent issues been adequately addressed? Has this been explicitly stated within the assessment? Was appropriate and relevant information included? This might include the following: Anyone assessing someone s capacity will need to decide which of these steps are relevant to their situation Code of Practice 4.57 (What if someone refuses to be assessed?) Ethics and Codes of Conduct CoP 4 generally and 4.49) BPS Interim Guideline Chapter 9

10 B2.1 Adequate background information/from people or records B2.2 Interviews with relevant parties Have these been listed in the report? B2.3 Was there a check on/assessment of the person s communication ability? B2.4 Was there consideration of methods of ensuring optimum comprehension and expression of language? B2.3 Were appropriate formal assessments used relevant to the functional question Were appropriate cognitive or neuropsychological used? Were the formal assessments listed and/or described? B2.4 Was there identification of any emotional/mental health aspects that might affect responses: includes anxiety depression psychosis B2.5 Could there be a comment on the person s Insight/wider understanding of the condition relevant to the functional question e.g. if English not first language; receptive or expressive problems; use of supports Common Law tests for making a will, making a gift, entering into a contract, litigate and marry These could impact on either or both- the process of assessment the decision about mental capacity CoP 4 and 16 (Rules governing access to information) CoP Research Practice COT/CS&LT Practice CS&LT CoP 4.32 BPS Interim practise (RCP/BPS) (RCP/BPS) 10

11 B2.6a B2.6b Was reasoning and problem solving shown both generally and relevant to the issue? Was there any assessment of whether the person demonstrated that they could identify and weigh risks and benefits both generally and for the specific issue? B2.7 Has the person had sufficient time to assimilate issues that have arisen? Have psychological aspects of adjustment to change been taken into account in their responses? B2.8 Has the impact of religious/cultural beliefs been taken into account? B2.9 Were there any checks for consistency of responses? How was variation in the person s responses understood? B2.10 Was there any evidence of suggestibility/social influence in their responses and if so how was this managed? (RCP/BPS) Code of Practice 4.21 (Using or weighing information as part of the decisionmaking process) 4.22 BPS Interim Guidance Code of Practice Chapter 5, 5.46 BPS Interim Guidance Chapter 2 page 23 practise?? BPS Interim Guidance C C1 Enhancing capacity What means of enhancing capacity have been identified? Mental Capacity Act Part 1, 1 (The principles), 3) CoP Introduction 2, 4 C2 Are alternative ways of addressing the problem considered? Mental Capacity Act Part 1, 1, 6 Part 1), 3) 2) 11

12 C3 Can/should a statement be made as to whether the person might re-gain capacity? Practice Conclusion Have the four questions been explicitly answered? D1 Understands information A person is unable to make a decision for himself if he is unable a) to understand the information relevant to the decision. D2 Retains information A person is unable to make a decision for himself if he is unable b) to retain that information. D3 Communicates the decision A person is unable to make a decision for himself if he is unable d) to communicate his decision (whether by talking, using sign language or any other means) D4 Weighs information A person is unable to make a decision for himself if he is unable c) to use or weigh that information as part of the process of making the decision. Mental Capacity Act Mental Capacity Act Part Mental Capacity Act Part 1, 3, 1 Mental Capacity Act Part 1, 3, 1 Mental Capacity Act Part 1, 3 12

13 E The Outcome Written report or decision/answer written report or template or case record E1 E2 Was information clearly stated? Were issues of reliability and validity acknowledged as part of the judgement? Date of report Name and title of assessor Name of unit Name and title of decision maker Practice E3 Did it include sufficient detail of capacity findings? E4 Was the decision making process well structured? E5 Was fact distinguished from opinion? E6 Has the assessment duly considered and balanced different factors? E7 Have ethical issues and value judgements been made explicit Codes of Ethics E8 Was the judgement clearly expressed? 13

14 7. Reference list British Medical Association/The Law Society (2 nd Edition) (2004). Assessment of Mental Capacity: Guidance for Doctors and Lawyers. London: BMA books. BPS/PPB publications (electronic) Assessment of Capacity in Adults: Interim Guidance for Psychologists. (2006) Short Reference Guide (2007) Best Interest Guidance (2008) Research Guidance (2008) Barber, P., Brown, R and Martin, D. (2009). The Mental Capacity Act 2005: A Guide for Practice (Post-Qualifying Social Work Practice) (2 nd Edition). Exeter: Learning Matters Ltd. Brown, R. and Barber, P., The Social Worker s Guide to the Mental Capacity Act, Exeter: Learning Matters. Chapman, S. (2008). The Mental Capacity Act in Practice: Guidance for End of Life Care. London: National Council for Palliative Care. Dimond, B. (2008). Legal Aspects of Mental Capacity. Oxford: Blackwell. Mental Capacity Act London, Stationary Office Mental Capacity Act 2005 Code of Practice. London Stationary Office and Jones, R (2009). Mental Capacity Act Manual (3 rd Edition). Cornwall: Sweet and Maxwell. National Institute of Clinical Excellence (2002). Principles of Best Practice in Clinical Audit. London: NICE. Suto, I, et al Financial Decision Making: Guidance for supporting financial decision making by people with learning disabilities. BILD publications 14