The Mental Capacity Act 2005 (MCA) Anne McGarry Lead Nurse for Mental Capacity and Specialist Safeguarding Adults

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1 The Mental Capacity Act 2005 (MCA) Anne McGarry Lead Nurse for Mental Capacity and Specialist Safeguarding Adults

2 Background and Policy Context Two million people in the UK are estimated to lack capacity through mental illness, learning difficulties, dementia or physical illnesses that affect brain function (such as delirium or head injury) (MCA, 2005) In general hospitals, more than 30% of patients on acute medical wards may lack capacity (Raymont et al, 2004) A slightly higher proportion (44%) of psychiatric in-patients (Cairns et al, 2005) lack capacity to make the primary decision for which they were admitted The decisions are also wide ranging covering many areas of health and wellbeing, as well as financial decisions.

3 What is capacity? Question

4 Answer Capacity is the ability to make decisions for one s self A person is said to have capacity when they can go through the process of making decisions by understanding the information and choices presented, weighing up the information to determine what the decision will mean for him or her and then communicating that decision If a person is unable to follow this process and make his or her own decisions, the person is said to lack capacity.

5 Lack of Capacity The MCA Code of Practice (4.3, Section 2) states: For the purposes of the Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in, the functioning of the mind or brain.

6 Who Does Capacity Assessments? Anyone, particularly those working in health and social care Assessors can be anyone, for example family members, a care worker, a nurse, a doctor or a social worker However, the more complex the decision, the more likely the need to call upon expert opinion. This could be a psychologist or a Best Interests Assessor (BIA) to support the assessment It is the person who is asking for the decision to be made that makes the decision of whether the person has/does not have mental capacity.

7 The Test of Capacity Decision and time specific Includes a two stage test: 1. Diagnostic assessment 2. Functional assessment.

8 Diagnostic Assessment Examples of conditions: Conditions associated with mental illness Dementia Significant learning disabilities Long-term effects of brain damage Physical or medical conditions that cause confusion, drowsiness or loss of consciousness Delirium Concussion following a brain injury The effects of alcohol or substance misuse The impairment or disturbance means that they are unable to make a specific decision at the time that it needs to be made. This may be permanent, partial or temporary and can change over time.

9 Functional Assessment A person is unable to make a decision if they cannot: Understand the relevant information about the decision to be made Retain that information in their mind Use or weigh up that information as part of the decision making process or; Communicate their decision by talking, using sign language or by any other means.

10 Appropriate Restraint Under the MCA The MCA does permit restraint or a restriction of liberty provided that certain conditions are met: Restraint is appropriate when it is used to prevent harm to the person who lacks capacity It is a proportionate response to the likelihood and seriousness of harm The difference between deprivation of liberty and restriction upon liberty is one of degree or intensity on a scale which moves from restraint or restriction to deprivation of liberty Where an individual is on the scale will depend on the concrete circumstances of the individual and may change over time.

11 Best Interests One of the key principles of the Act 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 persons best interests Best interests: Encourage participation Facts supporting the decision Person s views past and present Avoid discrimination Assess future capacity Advance decisions Consult others.

12 Best Interests Checklist Equal consideration and non-discrimination All relevant circumstances Regaining capacity Permitting and encouraging participation The person s wishes, feelings, beliefs and values The views of other people Life sustaining treatment.

13 Mental Capacity The Test Lasting Power of Attorney Patient Representative/ IMCA Mental Capacity Court of Protection Best interests

14 The Mental State in Relation to Capacity Examination of the mental state is fundamental to the assessment of capacity as there are many conditions and treatments that can enhance/reduce someone s capacity Examples include agitation, over activity that make it impossible to impart relevant information to them, lability of mood,abnormality of thought processes Defects in cognitive functioning can have a profound significance for capacity as decision making requires attention and concentration both are necessary for effective thought and for capacity Confusion and memory difficulties which may occur as a result of chronic alcoholism, a stroke or Alzheimer s disease are likely to affect capacity for some, but not necessarily all decisions.

15 The Interface with the Mental Health Act 1983 (MHA) Prior to the MCA, a diagnosis of mental illness was the only legal means by which an adult s autonomous decision making could be overridden Mental incapacity and mental illness are commonly confused A person with a mental illness (MHA, 1983, amended 2007) may also lack mental capacity For many people, mental illness will not have a significant impact on the ability to make a range of decisions, including consent to medical treatment For others, capacity to make complex financial decisions may be limited, but the majority of other more routine decisions may still be within their capacity.

16 The Interface with the Mental Health Act 1983 (MHA) People can lack insight into one aspect of their lives but retain it for others Assessment of capacity in some patients may prove to be extremely difficult and some professionals will often perceive that they are not making decisions in the way that an ordinary person would However, there should be no automatic assumption that this necessarily indicates lack of capacity.

17 How Do I Decide What is in Someone s Best Interests Clinical problems have a variety of management options, ranging from doing nothing to radical treatments and the least restrictive option should be used (Principle 5 of the MCA, 2005) For more complex decisions which carry a greater risk or benefit, clinicians should consider obtaining expert opinion to support the assessment In view of the wide range of decisions and actions covered by the Act and the varied circumstances of the people affected by its provisions, the concept of best interests is not defined in the MCA Instead, the MCA sets out a checklist of common factors which must be considered when determining what is in a person s best interests.

18 How Do the MCA and MHA Interact This is a complex area, the MHA is relevant only when treating a mental disorder and in most circumstances it is not relevant when treating physical illnesses Patients detained under the MHA who refuse physical treatment need to have their capacity assessed Incapacity should not be assumed in such patients (Principle 1 of the MCA) The MCA cannot be used to give care involving a deprivation of liberty without a proper assessment and authorisation Treatments that are prohibited in advance decisions or treatments that are not consented to by an Attorney can still be given under the MHA if they are to treat a mental disorder.

19 Adults Who Self Neglect/Refuse to Engage with Interventions Adults who self neglect fall into two domains; those where there is a degree of cognitive impairment and those who are cognitively intact self neglectors The MCA makes no provision for adults with capacity who self neglect/refuse interventions Self neglect is a complex problem that requires clinical, social and ethical decisions in its management Complex dilemmas can arise when people appear to rationally or intentionally choose to self neglect.

20 Adults Who Self Neglect/Refuse to Engage with Interventions It is important that health professionals accept people s autonomy and their right to make lifestyle choices and refuse services but are able to recognise, evaluate and treat self neglect, Critical to this is assessing peoples decision making capacity, therefore adults who self neglect should have their cognitive and functional mental capacity assessed and expert advice should be sought as appropriate to assist with the assessment A mental health assessment may also be required to determine evidence of mental illness that affects the person s capacity to make decisions.

21 A Local Authority Versus Mrs A and Mr A Mrs A, who is 29 years old, has a severe learning disability. She had previously given birth to two children and both had been removed from her at birth and made subject to a care order. Mrs A was provided with support from the local authority and was using contraception. She later met and married Mr A. He also had a learning disability which was not as significant as Mrs A s. Mrs A subsequently refused to use contraception and the local authority found it difficult to contact her. Evidence was provided that Mrs A had complained that Mr A had hit and kicked her and that she did not wish to have a baby. The local authority sought declarations that Mrs A lacked capacity to decide whether to use contraception and that it would be in her best interests to be required to use it.

22 Issues Raised What is the test for determining whether a woman has capacity to make decisions as to contraceptive treatment Applying the test,does Mrs A lack that capacity If so, is it in her best interests that an order be made for her to receive contraceptive treatment Should the court make orders against Mr A forbidding him to interfere with arrangements put in place by the local authority designed to assist Mrs A in reaching a decision as to whether or not to use contraception?

23 The Test of Capacity to Decide on Contraceptive Treatment The reason for contraception, which includes the likelihood of pregnancy The types available and how each is used The advantages and disadvantages of each type The possible side effects of each type and how they can be dealt with How easily each type can be changed and; The generally accepted effectiveness of each.

24 Conclusions Unable to weigh up the risks and benefits Coercive pressure imposed by Mr A Nature of the relationship: Their respective personalities and learning disabilities Mrs A s dependence and fear of rejection Her suggestibility and wish to please Mr A Mr A s lack of insight as to the true extent of Mrs A s difficulties.

25 Mrs A s Best Interests Local authority original application was to use force and restraint to be authorised This would not be in Mrs A s best interests and staff would not be comfortable with enforcing this action Considered the most acceptable way forward appropriate help and discussion without undue pressure from Mr A Risks to physical or mental health through pregnancy, child birth or the removal of a child were not under consideration.

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