Trust Policy. Governance Department. Mental Capacity Act 2005

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1 Trust Policy Governance Department Mental Capacity Act 2005 Document Control Author/Contact Jacquie Ruddick, Governance Co-ordinator Manager, Legal Department Document File Path EQMS No.2026 Document Impact Assessed Yes/No Date: Version 5 Status Approved Publication Date Review Date Approved by (Executive) Dr P Williams Date: Ratified by (Relevant Group) Clinical and Cost Effectiveness Sub- Committee Date: Distribution: Royal Liverpool and Broadgreen University Hospitals NHS Trust Policy website. Please note that the Policy Website version of this document is the only version that is maintained. Any printed copies must therefore be viewed as uncontrolled and as such, may not necessarily contain the latest updates and amendments.

2 Contents Page 1.0 Introduction Objective Scope Policy Defining Capacity Assessing Capacity Factors Which May Affect Capacity Fluctuating Capacity and Written Consent Best Interest Independent Mental Capacity Advocate (IMCA) Lasting Powers of Attorney Court of Protection Court Appointed Deputies Advance Decisions to Refuse Treatment Excluded Decisions Mental Health Act 1983 Matters Unlawful killing or assisted suicide Ill Treatment or Wilful Neglect Restraint Deprivation of Liberty Research Roles and Responsibilities Associated Documentation and References Training and Resources Monitoring and Audit Equality and Diversity Recording and Monitoring of Equality and Diversity 17 Appendices:- Appendix 1: Glossary of Terms 18 Appendix 2: Assessment of Capacity Form for ICE 20 Appendix 3: Assessment of Capacity Form paper form 21 Appendix 4: Document History and Version Control 22 Mental Capacity Act 2005 Policy

3 1. Introduction The Mental Capacity Act 2005 (MCA 2005) gives statutory rights to patients regarding the way that Trust staff arrive at given decisions that affect patients welfare and treatment. The MCA 2005 also provides protection to Trust staff when performing acts in the delivery of care and treatment of patients. The rationale for this policy is to ensure that Trust staff work within the statutory framework of the MCA Objective The objective of this policy is to ensure that all relevant staff understand the Trust s requirements in relation to the MCA 2005 within the organisation along with their own statutory duties as required by the Act. This policy identifies key Trust personnel to be contacted in the event of any queries or concerns. The MCA 2005 formalises in statute the principles of good practice that have existed previously in common law. Evidence of compliance with the Act will be dependant on accurate record keeping that supports the rationale behind decisions that have been made about patients care and treatment. 3.0 Scope This policy is for information and application by all Royal Liverpool and Broadgreen University Hospitals NHS Trust (RLBUHT) staff in respect of all patients receiving care and treatment within the organisation. The policy has been developed to assist staff in the application of the MCA 2005 in the health care decision making process of patients and their families. This policy should be considered alongside related Trust policies as indicated below: Safeguarding Adults Consent to Examination or Treatment Do Not Attempt Resuscitation Advance Decisions (previously known as Living Wills) Refusal of Treatment Discharge Policy Records Management Research and Development Standard Operating Procedures Making experiences count NHS Adult and Social Care Complaints 4.0 Policy Trust staff should be aware that the MCA 2005 details five guiding principles which underpin its fundamental concepts and govern its implementation. The five statutory principles are: 1. Every adult must be assumed to have capacity unless it is established that they lack capacity. 2. A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success. 3. A person is not to be treated as unable to make a decision merely because they make an unwise decision. Mental Capacity Act 2005 Policy Clinical Governance and Quality Facilitator and Manager, Legal Department Quality\Mydocuments\ClinicalGovernance\Policies\2009Policies\ 1

4 4. 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. 5. 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. The MCA 2005 provides a statutory framework to empower and protect vulnerable people who may not be able to make their own decisions. It makes it clear who can take decisions in which situations and how they should go about this. It enables people to plan ahead for a time when they may lose capacity. The MCA 2005 enshrines in statute, current best practice and common law principles concerning people who lack mental capacity and those who take decisions on their behalf. Code of Practice A national Code of Practice, which has helpful case studies, is available on the Trust intranet. 4.1 Defining Capacity It must always be assumed that a patient has the capacity to make a decision, unless it can be established that they lack capacity. A patient s capacity must be assessed specifically in terms of their capacity to make a particular decision at the time it needs to be made. A patient lacks capacity in relation to a matter if, at the material time, they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. It does not matter whether the impairment or disturbance is permanent or temporary. A patient s capacity cannot be judged or established on the basis of their age, appearance, condition or an aspect of their behaviour. 4.2 Assessing Capacity The MCA 2005 sets out a clear two stage test for assessing whether a patient lacks capacity to make a particular decision at a particular time. It is a decision-specific test. No one can simply be labelled as lacking capacity as a result of a particular medical condition or diagnosis. Assessments of capacity should be made when day to day care is given, such as attending to personal hygiene needs, providing physiotherapy, providing meals etc. These should be recorded as part of the relevant health professionals usual documentation process. Assessments of capacity for serious medical treatment or a change of accommodation decisions must be completed and forms are available as below: Mental Capacity Act 2005 Policy 2

5 Assessment of Capacity forms are available on ICE, located on the Services tab under the referral system (Appendix 2). The completed form must be saved on ICE once completed and if required printed off and filed in the patient s health record. During ICE downtime, please use the pre-printed Assessment of Capacity forms (Appendix 3), which are available on all wards and clinical areas. Completed forms must be filed in the patient s health record. These forms are available via the Trust s Supplies Department, order number WNN040. Anyone assessing a patient s capacity to make a decision for themselves must use the following two-stage test of capacity. Stage One The diagnostic Two factors must be satisfied in the assessment of capacity and they are: Does the patient have an impairment of the mind or brain, or is there some sort of disturbance affecting the way their mind or brain works? (It doesn t matter whether the impairment or disturbance is temporary or permanent) If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made? Stage Two Unable to make a decision A patient is unable to make a decision for themselves if they cannot: understand the information relevant to the decision to be made retain that information use or weigh that information as part of the decision making process, or communicate their decision (whether by talking, using sign language or any other means). An apparent lack of capacity to give or withhold consent may in fact be the result of communication difficulties rather than genuine lack of capacity. Appropriate health professionals should be involved in making such assessments of capacity, such as specialist learning disability teams and speech and language therapists, unless the urgency of the person s situation prevents this. A patient is not to be regarded as unable to understand the information relevant to a decision if they are able to understand an explanation of it given to them in a way that is appropriate to their circumstances (using simple language, visual aids or any other means). The fact that a patient is able to retain the information relevant to a decision for a short period only does not prevent them from being regarded as unable to make the decision. Capacity is confirmed where a patient is able to understand and retain information long enough to make an informed decision. A patient is not to be treated as unable to make a decision merely because they make an unwise decision. Health professionals should not confuse capacity with their own assessment of the reasonableness of patients decisions. As long as the patient has capacity to make the specific decision they are entitled to make a decision which others may perceive as unwise or irrational. Mental Capacity Act 2005 Policy 3

6 However if the patient s decision appears irrational because they do not understand the reality of the situation, and not because they have a different value system to that of the health professional, then the patient may not be able to understand, weigh up or make use of the relevant information and therefore may lack capacity to make the specific decision. Such decisions may be a patient who denies having a gangrenous foot despite the obvious evidence or a patient who has anorexia nervosa not understanding their failing physical condition. If a patient has a mental disorder or is detained under the Mental Health Act 1983 (amended 2007) it must not be assumed that they do not have capacity to make specific decisions. Such patients must have their capacity assessed under the MCA 2005 assessment of capacity process for every case which requires a particular decision to be made. The information relevant to a decision includes information about the reasonably foreseeable consequences of: Deciding one way or another, or Failing to make the decision. If a health professional states that a patient lacks capacity they must be able to provide evidence to show, on the balance of probabilities, that the individual lacks capacity to make a particular decision, at the time it needs to be made. This means being able to show that it is more likely than not that the person lacks capacity to make the decision in question. Therefore if a patient has been deemed as not having the capacity to make a specific decision, it is the decision maker s responsibility to clearly document the assessment of capacity for the specific decision. They must demonstrate that the statutory process in the Act has been followed to reach the decision along with why it is in the patient s best interests. Should such a decision be challenged in a court of law this would be the proof required to show compliance with the requirements of the MCA Factors Which May Affect Capacity A patient s capacity can fluctuate or be temporarily impaired due to mood or depression. In these circumstances, it may be possible to put off a decision until such time as the patient has regained capacity. A patient s capacity may also vary or be temporarily impaired due to either an underlying physical or medical condition that causes confusion, drowsiness or loss of consciousness e.g. urinary tract infection or because of the symptoms of alcohol or drug use. Other factors which may cause a patient s capacity to consent to be temporarily affected may be confusion, panic, shock, fatigue, pain or medication. Patients who have a diagnosed mental disorder may have fluctuating capacity. A patient may have the capacity to make some decisions but not others. A patient s capacity must be assessed against the specific decision that needs to be made. For example, a patient who cannot understand the financial issues around entering long term care might still have the capacity to make a choice about whether they want to go into long term care at all and, if so, which home. Mental Capacity Act 2005 Policy 4

7 A lack of information We need to make sure that any information relevant to the decision is provided in a format that the patient can understand, e.g. pictures, sign language etc. Pressure Carers or other family members may sometimes exert undue pressure when the patient being cared for is actually capable of making their own decisions or where expert help may help them do so. It may be necessary to refer to the Customer Relations Team to provide mediation if required or to Adult Protection services if appropriate. A lack of trust A patient may feel anxious about dealing with staff from social services or any other interested agency, so it must be ensured that they have access to independent support, advice or advocacy in these circumstances such as Customer Relations Team or Citizens Advice Bureau (CAB). 4.4 Fluctuating Capacity and Written Consent If a patient is known or suspected to have a condition which may affect their ability to make decisions and needs any treatment, investigation or procedure which requires written consent then there must be a formal assessment of capacity, unless the urgency of the patient s situation prevents this. This is the responsibility of the Consultant (or their deputy) requesting the treatment, investigation or procedure. Such assessment should be decision specific i.e. in relation to the matter at hand and performed in line with the MCA 2005 two stage assessment process. The assessment of capacity in relation to the planned treatment, investigation or procedure must be recorded on the Trust s Assessment of Capacity form (Appendix 2) and either saved on ICE or if required printed off and filed in the patient s health records. If the patient is assessed as lacking capacity but the treatment, investigation or procedure is thought necessary in their best interests then Consent Form 4 Special Consent (form for adults who are unable to consent to investigation or treatment), will be needed, which must be undertaken by the referring speciality. The standard consent forms should never be used when a patient lacks capacity and is unable to consent for themselves. Further guidance on the Best Interest can be found in section 4.5. Further guidance on Consent Form 4 Special Consent can be found in the Consent to Examination or Treatment Policy on the Trust intranet. In cases of fluctuating or temporary lack of capacity if possible any assessment should be delayed until a time when the patient has regained capacity to make the specific decision. If deemed to have capacity at this point in time then consent for the treatment, investigation or procedure should be obtained. It must be recorded in the notes that the patient s capacity may fluctuate, and such an assessment should be carried out no more than 72 hours before the planned treatment, investigation or procedure. In all cases the responsible health professional must communicate to the clinician performing the procedure, if different from the clinician responsible for assessing capacity, that such an assessment has been made and that the patient was deemed to have capacity at the time that consent was sought and obtained. Mental Capacity Act 2005 Policy 5

8 NB Good practice would be to establish, whilst the patient has capacity, their views about any clinical interventions which may be necessary during a period when their capacity may fluctuate all of which must be clearly documented in the patient s health records and communicated with all relevant health professionals. 4.5 Best Interests The MCA 2005 provides a checklist of factors that decision-makers must work through in deciding what is in the patient who lacks capacity best interests. A patient may have previously expressed their wishes and feelings or put them in a written statement, which the decision maker must consider. When a patient lacks capacity relatives friends or unpaid carers have a statutory right to be consulted where practical and appropriate. This may be done face to face or by telephone. In determining for the purposes of the MCA 2005 what is in a patient's best interests, the decision maker must not make it merely on the basis of: The patient's age or appearance, or a condition they may have, or An aspect of their behaviour, which might lead others to make unjustified assumptions about what might be in their best interests. The decision maker must consider all the relevant circumstances but in particular: Whether it is likely that the patient will at some time have or regain capacity in relation to the matter in question, and If it appears likely that they will do so, when that is likely to be. Any Advance Decision or existing Living Will made by that person. Decide upon a review date The decision maker must, so far as is reasonably practicable, permit and encourage the person to participate, or to improve their ability to participate, as fully as possible in any act done for them and any decision affecting them. The decision maker must consider, so far as is reasonably ascertainable: The patient s past and present wishes and feelings (and in particular any relevant written statement made by them when they had capacity), The beliefs and values that would be likely to influence their decision if they had capacity; and Any other factors that they would be likely to consider if they were able to do so. The decision maker must consult with and take into account the views of the following as to what would be in the best interests of the patient lacking capacity, if it is practicable and appropriate to do so: Anyone previously named by the patient as someone to be consulted on the matter in question or on matters of that kind, Anyone engaged in caring for the person or interested in their welfare, Any attorney appointed under a personal welfare Lasting Power of Attorney by the patient, and Any deputy appointed by the Court of Protection, to make a decisions for the patient. Mental Capacity Act 2005 Policy 6

9 "Relevant circumstances" are those of which the decision maker is aware, and which it would be reasonable to regard as relevant. 4.6 Independent Mental Capacity Advocate (IMCA) In the past, many people who lacked the capacity to make decisions for themselves may not have been listened to. IMCAs safeguard the rights of those who lack capacity and who do not have anyone, i.e. relatives, friends or unpaid carers, to represent them. There is a statutory requirement for an IMCA to be instructed, and then consulted with, when a person lacks capacity and has no-one else to support them (other than paid staff), whenever: an NHS body is proposing to provide, withhold or stop serious medical treatment including a DNAR order or proposing that another organisation (such as a private hospital) carry out the treatment on their behalf, or an NHS body or local authority is proposing to arrange accommodation (or a change of accommodation) in hospital or a care home, and the person will stay in hospital longer than 28 days, or they will stay in the care home for more than eight weeks. An IMCA may be instructed to support someone who lacks capacity to make decisions concerning: care reviews, where no-one else is available to be consulted adult protection cases, whether or not family, friends or others are involved The IMCA s role is to support and represent the patient who lacks capacity. Because of this, IMCAs have the right to see relevant health and social care records and be provided with a copy of any sections of these relevant to the decision to be made. Arrangements must be made to allow the IMCA to meet the patient concerned in private. This is to enable the IMCA to perform properly their function of representing and supporting the person who lacks capacity. Any information or reports provided by an IMCA must be taken into account as part of the process of working out whether a proposed decision is in the patient s best interests. N.B. Treatment can still be provided to a patient in an emergency situation without consultation either with relatives, friends or unpaid carers or making an IMCA referral. However it must be in the patient s best interest and take all known factors into account such as religious beliefs, wishes, Advanced Decision / existing Living Will etc. It is critical to ensure that the rationale for the decision being taken is clearly documented in the patient s health records. If further treatment is required the statutory consultation process must be followed. Serious Medical Treatment Serious medical treatment is defined as treatment which involves giving new treatment, stopping treatment that has already started or withholding treatment that could be offered in circumstances where: Mental Capacity Act 2005 Policy 7

10 if a single treatment is proposed there is a fine balance between the likely benefits and the burdens to the patient and the risks involved a decision between a choice of treatments is finely balanced, or what is proposed is likely to have serious consequences or the patient. Serious consequences are those which could have a serious impact on the patient, either from the effects of the treatment itself or its wider implications. This may include treatments which: cause serious and prolonged pain, distress or side effects have potentially major consequences for the patient (for example, stopping life-sustaining treatment or having major surgery such as heart surgery), or have a serious impact on the patient s future life choices (for example, interventions for ovarian cancer). It is impossible to set out all types of procedures that may amount to serious medical treatment, although some examples of medical treatments that might be considered serious include: chemotherapy and surgery for cancer electro-convulsive therapy therapeutic sterilisation major surgery (such as open-heart surgery or brain/neuro- surgery) major amputations (for example, loss of an arm or leg) treatments which will result in permanent loss of hearing or sight withholding or stopping artificial nutrition and hydration placing a DNAR termination of pregnancy. These are illustrative examples only, and whether these or other procedures are considered serious medical treatment in any given case, will depend on the circumstances and the consequences for the patient. There are also many more treatments which will be defined as serious medical treatments under the Act s regulations. Decision-makers who are not sure whether they need to instruct an IMCA should consult their colleagues or seek advice from the Legal Department or Governance Department, please see section 7.0 for contact details. Serious medical treatment does not apply to treatment under the Mental Health Act 1983 (as amended by Mental Health Act 2008). If serious medical treatment proposed for a detained person is not for their mental disorder, the patient then has a right to an IMCA as long as they meet the Mental Capacity Act s requirements. So a detained patient without capacity to consent to cancer treatment, for example, would qualify for an IMCA if there are no relatives, friends or unpaid carers with whom it would be appropriate to consult. The health professional providing the treatment must take in to account any information given or submissions made by an IMCA but ultimately, the decision rests with the health professional decision maker. Mental Capacity Act 2005 Policy 8

11 For decisions about serious medical treatment, the IMCA may consider seeking a second medical opinion from a doctor with appropriate expertise. This puts a patient who lacks the capacity to make a specific decision in the same position as a patient who has capacity, who has the right to request a second opinion. Decisions about accommodation or changes of residence There is a statutory requirement to instruct an IMCA when there is the proposal by the Trust to place a patient, who lacks capacity and has no-one else to support them (other than paid staff), to: stay in hospital longer than 28 days, or stay in a care home or move to a different care home for more than eight weeks. Where an IMCA is appointed the Trust must take into account any information provided, or submissions made, by the IMCA when making any decision about the accommodation review. Adult Protection The Trust has the powers to instruct an IMCA to support and represent a patient who lacks capacity where it is alleged that: the patient is or has been abused or neglected by another person, or the patient is abusing or has abused another person. The Trust can only instruct an IMCA if they propose to take, or have already taken, protective measures. This is in accordance with adult protection procedures set up under statutory guidance. In adult protection cases (and no other cases), patients who lack capacity, who have family and friends, can still have an IMCA to support them in the adult protection procedures. Where an IMCA is appointed the Local Authority or NHS body must take into account any information provided, or submissions made, by the IMCA when making any decision about the protective measures in respect of the person concerned. Where the qualifying criteria are met, it would be unlawful for the Trust not to consider instructing an IMCA for adult protection. Referring to the IMCA service All IMCA referrals must be made to Advocacy Experience, who are commissioned to provide this service for Liverpool and Sefton. Referrals must be made via the ICE system on the service tab in the referral screen. N.B. During ICE downtime please make referrals by going to click on the IMCA tab (last one on top right hand side), then download and print the referral form. Once completed please FAX to Advocacy Experience, (FAX number is at the bottom of first page) and file the referral form in the patient s health records. Mental Capacity Act 2005 Policy 9

12 The IMCA service is available Monday to Friday 9am to 5 pm. If a patient, who needs an IMCA, requires urgent serious medical treatment outside of these hours the treatment may be provided as long as it is in the patient s best interests taking into account all the duties and statutory requirements of the MCA It is critical to ensure that the rationale for the decision being taken is clearly documented in the case note. If, following this, further serious medical treatment is likely to be necessary an IMCA referral must be made as a matter of routine. 4.7 Lasting Power of Attorney (LPA) The MCA 2005 introduced a new form of Power of Attorney, Lasting Power of Attorney (LPA), which has replaced Enduring Power of Attorney (EPA). A Lasting Power of Attorney (LPA) is an important legal document that enables a person (Donor), who has capacity and is over 18, to choose another person or people (Attorney(s)) to make decisions on their behalf. An LPA must be registered with the Office of the Public Guardian (OPG) before it can be used. An unregistered LPA will not give an Attorney any legal powers to make a decision for the Donor. The Donor can register the LPA while they have capacity, or the Attorney can apply to register the LPA at any time. There are 2 different types of LPAs: A property and affairs LPA is for decisions about finances, such as selling the Donor's house or managing their bank account; and A personal welfare LPA is for decisions about both health and personal welfare, such as where to live, day-to-day care or medical treatment. The attorney appointed to make personal welfare decisions may only do so when the donor, i.e. the patient, no longer has capacity and not before such time. This is not the case in matters relating to property and affairs as an appointed attorney can act while the person has capacity. Different attorneys may be appointed to take different types of decisions. The original registered LPA must be seen to determine exactly what personal welfare powers have been given to the attorney on behalf of another adult who lacks capacity. If the LPA is valid a copy must be taken and put into the patient s health records and communicated to all relevant health professionals involved in the care and treatment. An Attorney is appointed to make decisions as if they were the Donor themselves. This means that the patient s appointed attorney, for personal welfare decisions in a valid LPA, have the authority to make decisions and consent to or refuse treatment as set out in the LPA, but only when the patient lacks capacity. An Attorney must act in the Donor's best interests and have regard to the Code of Practice. These new powers will allow an individual to confirm their right to refuse treatment. Sanctions will be imposed if these wishes are ignored and, in certain circumstances, the health professional responsible for ignoring these wishes could be committing a criminal offence. A patient who makes an LPA may revoke it at any time as long as they have capacity. If a patient does not have capacity but it is felt an attorney is not acting in the patient s best interests a referral should be made to the Court of Protection. Mental Capacity Act 2005 Policy 10

13 Existing EPAs, which are for financial affairs only, will remain valid but it will not be possible to create new EPAs. Any healthcare professional who is directly involved in the care or treatment of a patient who lacks capacity should not agree to act as the patient s attorney unless there are exceptional circumstances, e.g. if they are the only close relative of the patient. The Office of the Public Guardian website contains further information regarding Lasting Powers of Attorney at: 4.8 Court of Protection The Act provides for a new Court of Protection to make decisions in relation to the property and affairs and healthcare and personal welfare of adults (and children in a few cases), who lack capacity. The Court also has the power to make declarations about whether someone has the capacity to make a particular decision. The Court has the same powers, rights, privileges and authority in relation to mental capacity matters as the High Court. It is a superior court of record and is able to set precedents (set examples to follow in future cases). The Court of Protection has the powers to: decide whether a person has capacity to make a particular decision for themselves; make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions; appoint deputies to make decisions for people lacking capacity to make those decisions; decide whether an LPA or existing EPA is valid; and remove deputies or attorneys who fail to carry out their duties, and hear cases concerning objections to register an LPA or EPA and make decisions about whether or not an LPA or EPA is valid. In reaching any decision, the Court must apply the statutory principles set out in the MCA It must also make sure its decision is in the best interests of the person who lacks capacity. Nothing in this section affects the operation of Advance Decisions to Refuse Treatment (see section 4.13). The Court of Protection must also be consulted if: There is a dispute regarding a Lasting Power of Attorney There is a need to appoint a deputy to make a decision on a person s behalf It is necessary to make a declaration on whether an act done or which is proposed to be done regarding a person is lawful It is necessary to make a declaration on whether a person has the capacity to make a particular decision The MCA 2005 provides for the appointment of Deputies (see 4.9) by the Court of Protection where the Court cannot make a one-off decision to determine an issue. However, it is important to be aware that the powers of Deputies are restricted e.g. Deputies cannot act if a person may act for him or her self. Mental Capacity Act 2005 Policy 11

14 The following must be referred to the Court of Protection for a ruling on the lawfulness before any are undertaken: decisions about the proposed withholding or withdrawal of ANH from patients in a permanent vegetative state cases involving organ, bone marrow or peripheral blood stem cell donation by cases involving the proposed non-therapeutic sterilisation of a person who lacks the capacity to consent to this (e.g. for contraceptive purposes), and all other cases where there is a doubt or dispute about whether a particular treatment will be in a person s best interests. Other cases likely to be referred to the court include those involving ethical dilemmas in untested areas (such as innovative treatments for variant CJD), or where there are otherwise irresolvable conflicts between healthcare staff, or between staff and family members. Any referral to the Court of Protection should be discussed in advance with the Trust s Legal Department. Please contact Manager Legal Department, ext Any legal advice required out of hours should be sought from the Duty Managers. The Court of Protection Rules may be found on the Office of the Public Guardian website at: 4.9 Court Appointed Deputies The MCA 2005 provides for a system of court appointed Deputies to replace the current system of receivership in the Court of Protection. Deputies will be able to take decisions on welfare, healthcare and financial matters as authorised by the Court but will not be able to refuse consent to life-sustaining treatment. They will only be appointed if the Court cannot make a one-off decision to resolve the issues. When the Court of Protection has appointed a deputy to make treatment decisions for a patient, who does not have capacity, it is the deputy not the healthcare professionals who makes decisions on treatment Advance Decisions to Refuse Treatment The MCA 2005 gives clear statutory rules and safeguards confirming that people may make a decision in advance to refuse treatment if they should lose capacity in the future. The decision must be made by a person who is 18 or over, at a time when the person has capacity to make it and must specify the treatment that is being refused. Where practical to do so a verbal advance decision should be recorded in a patient s case notes. An advance decision does not need to be in writing unless it applies to life-sustaining treatment. If the advance decision concerns life-sustaining treatment the person making the decision must sign in the presence of a witness to the signature. The witness must then sign the document in the presence of the person making the advance decision. If the person making the advance decision is unable to sign, the witness can witness them Mental Capacity Act 2005 Policy 12

15 directing someone else to sign on their behalf. The witness must then sign to indicate that they have witnessed the nominated person signing the document in front of the person making the advance decision. If a patient has a valid and applicable advance decision to refuse treatment or requests that it be withdrawn practitioners must comply with the person s decision, even if it may result in the person s death. If a refusal is ignored, they will be treating the person unlawfully. There are transitional arrangements for Advanced Decisions to refuse treatment which could be made under common law, prior to the introduction of the MCA Therefore such Advanced Decisions may, if they meet particular conditions as per Article 5 of the transitional order, be valid. The particular conditions are that there is a reasonable belief that the advance decision was made before 1 October 2007, a reasonable belief that the person has lacked capacity to amend their advance decision since 1 October 2007 and the advance decision is in writing. If there is any doubt or dispute about the existence, validity or applicability of an advance decision then it should be referred to the Court of Protection for decision. Any referral to the Court of Protection should be discussed in advance with the Trust s Legal Department. Please contact Manager, Legal Department, ext Any legal advice required out of hours should be sought from the Duty Managers. An advance decision may be withdrawn by the patient, who has capacity, at any time, by any means, including those relating to life-sustaining treatment. If in doubt emergency treatment should always take priority followed by a review of any advance decision in terms of validity or applicability. The rationale for any plan of care should be clearly documented in the patient s health record Excluded Decisions The MCA 2005 lists certain decisions that can never be made on behalf of a person who lacks capacity. There will be no question of an attorney consenting or of the Court of Protection making an order or appointing a deputy to provide the requisite consent. Decisions concerning family relationships Nothing in this Act permits a decision to be made on behalf of a person on any of the following matters: Consenting to marriage or a civil partnership Consenting to have sexual relations Consenting to a decree of divorce on the basis of two years' separation Consenting to a dissolution of a civil partnership Consenting to a child being placed for adoption or the making of an adoption order Discharging parental responsibilities for a child in matters not relating to the child's property, or Giving consent under the Human Fertilisation and Embryology Act 1990 Mental Capacity Act 2005 Policy 13

16 4.12 Mental Health Act 1983 matters Where a person who lacks capacity to consent is currently detained and being treated under Part 4 of the Mental Health Act 1983 (as amended by Mental Health Act 2008), nothing in the Act authorises anyone to: Give a patient medical treatment for mental disorder, or Consent to a patient's being given medical treatment for mental disorder. if, at the time when it is proposed to treat the patient, their treatment is regulated by Part 4 of the Mental Health Act Unlawful killing or assisting suicide For the avoidance of doubt, nothing in the MCA is to be taken to affect the law relating to murder, manslaughter or assisting suicide Ill treatment and wilful neglect The MCA 2005 introduced two criminal offence of ill treatment and wilful neglect of a person who lacks capacity to make relevant decisions. The offences may apply to: Anyone caring for a person who lacks capacity including family carers, health and social care staff in hospitals or care homes and those providing care in a person s home An attorney appointed under an LPA or an existing EPA or A deputy appointed for the person by the court. A person found guilty of such an offence may be liable to a fine and / or imprisonment for a term of up to five years. Trust staff are protected from liability in all cases but only where there is a clear demonstration that the decision making process has been governed by the principles of good practice in applying the MCA 2005 for those patients who lack capacity and the rationale has been clearly documented in their health record. Protection will not exist where: There is a conflict with decision by attorney under a LPA There is a conflict with decision of a Court Deputy There is a valid advance decision refusing treatment in place An act of negligence has occurred Restraint The MCA 2005 defines restraint as the use or threat of force to help do an act which the person resists, or the restriction of the person s liberty of 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. Under the MCA 2005 there is legal protection for people who care for or treat someone who lacks capacity but any action taken must be in a patient s best interests. Therefore any member of staff using restraint only has protection if the restraint is: necessary to protect the patient who lacks capacity from harm, and Mental Capacity Act 2005 Policy 14

17 is in proportion to the likelihood and seriousness of that harm. The Royal College of Nursing has produced guidance on restraint Let s talk about restraint. Please refer to RCN website, There is no protection under the MCA 2005 for actions that deprive a person of their liberty within the meaning of Article 5(1) of the European Convention on Human Rights Deprivation of Liberty Safeguards (DOLS) The aim of the Deprivation of Liberty Safeguards is to provide legal protection for those vulnerable people who are deprived of their liberty otherwise than under the Mental Health Act 1983, to prevent arbitrary decisions to deprive a person of liberty and to give rights to challenge Deprivation of Liberty authorisations. The Deprivation of Liberty Safeguards covers patients in hospitals, and people in care homes registered under the Care Standards Act 2000, whether placed under public or private arrangements. The safeguards apply to people who lack capacity to consent to care or treatment, and who are suffering from a disorder of the mind. People who need to be covered by the Deprivation of Liberty Safeguards will be mainly those with significant learning disabilities or elderly people suffering from dementia, but will include a minority of others who have suffered physical injury. The safeguards came into effect on 1 st April The principles of the Mental Capacity Act 2005 will apply to the operation of the safeguards, principally the requirement to act in the best interests of the person lacking capacity. If there is a need to deprive a patient of their liberty an application has to be made to the relevant Supervisory Body before this may happen. If staff believe there is the possibility that a patient may be deprived of their liberty during the course of their care and treatment they must follow the statutory procedures as per the Deprivation of Liberty Safeguards requirements. If any practical advice and support is required or staff have any questions or queries regarding the Deprivation of Liberty Safeguards please contact any of the following people: Dave Roberts, Safeguarding Adults, bleep 4520 Celia Woosey, Named Nurse Safeguarding Adults, Research There are very specific regulations in the MCA 2005, which must be complied with, regarding any type of research, which staff may wish to do, that may involve patients who lack capacity. This is detailed in Section 11 of the MCA 2005 Code of Practice. Trust staff must seek advice and guidance from the Research and Development Department and follow the required process for obtaining ethical approval before undertaking any research which involves any patient who does not have capacity. 5.0 Roles and Responsibilities Mental Capacity Act 2005 Policy 15

18 The implementation of this policy is the responsibility of any member of staff working within the Trust, who is involved in decision making processes with patients. Directorate Managers, Clinical Directors, Heads of Departments and Specialties, Matrons, and Ward Managers are responsible for ensuring that the policy is implemented within their directorates and that all staff understand their statutory duties in relation to the Mental Capacity Act Associated Documentation and References Mental Capacity Act 2005 Mental Capacity Act Code of Practice Advocacy Experience webpage: The office of the Public Guardian Deprivation of Liberty Safeguards Policy DH Reference guide to consent for examination or treatment Second Edition 7.0 Training and Resources Information and guidance on the MCA 2005 policy is given to all new members of staff who attend the Trust s Induction programme and to F1 doctors on their Trust Induction programme. Clinical Directors, Directorate Managers, Matrons, Ward Managers and Heads of Departments and Specialties are responsible for ensuring that all staff have read the MCA 2005 policy and understand their responsibilities and statutory duties as required under the MCA 2005 Act. If any practical advice and support is required or staff have any questions or queries regarding the MCA 2005 please contact any of the following people: Denise Carroll, Director of Clinical Governance and Quality, 2251 Manager Legal Department, 3135 Jacquie Ruddick, Governance Co-ordinator, 2285 Helen Ballinger, Risk Manager, Monitoring and Audit The number of referrals made to Advocacy Experience IMCA services via the Trust s ICE system will be monitored and compared to Advocacy Experience figures on a quarterly basis to ascertain how many appropriate referrals were made. This will be done given that figures are made available from Advocacy Experience or Liverpool City Council Joint Implementation Network. 9.0 Equality and Diversity Trust is committed to an environment that promotes equality and embraces diversity in its performance as an employer and service provider. It will adhere to legal and performance requirements and will mainstream equality and diversity principles through its policies, procedures and processes. This policy should be implemented with due regard to this commitment. To ensure that the implementation of this policy does not have an adverse impact in response to the requirements of the Race Relations (Amendment Act) the Disability Mental Capacity Act 2005 Policy 16

19 Discrimination Act 2005, and the Equality Act 2006 this policy has been screened for relevance during the policy development process and a full impact assessment conducted where necessary prior to consultation. The Trust will take remedial action when necessary to address any unexpected or unwarranted disparities and monitor practice to ensure that this policy is fairly implemented. This policy and procedure can be made available in alternative formats on request including large print, Braille, moon, audio, and different languages. To arrange this please refer to the Trust translation and interpretation policy in the first instance. The Trust will endeavour to make reasonable adjustments to accommodate any employee/patient with particular equality and diversity requirements in implementing this policy and procedure. This may include accessibility of meeting/appointment venues, providing translation, arranging an interpreter to attend appointments/meetings, extending policy timeframes to enable translation to be undertaken, or assistance with formulating any written statements. 9.1 Recording and Monitoring of Equality and Diversity The Trust understands the business case for equality and diversity and will make sure that this is translated into practice. Accordingly, all policies and procedures will be monitored to ensure their effectiveness. Monitoring information will be collated, analysed and published on an annual basis as part of our Single Equality and Human Rights scheme. The monitoring will cover all strands of equality legislation and will meet statutory employment duties under race, gender and disability. Where adverse impact is identified through the monitoring process the Trust will investigate and take corrective action to mitigate and prevent any negative impact. The information collected for monitoring and reporting purposes will be treated as confidential and it will not be used for any other purpose. Mental Capacity Act 2005 Policy 17

20 Appendix 1 Glossary of Terms used within Policy List all terms used within the policy and provide a summary of what the term means MCA 2005: Capacity: Best Interests: Deprivation of liberty: The Mental Health Capacity Act 2005 gives statutory rights to patients regarding the way that Trust staff arrive at given decisions that affect patients welfare and treatment. The ability to make a decision about a particular matter at the time the decision needs to be made. Any decisions made, or anything done for a person who lacks capacity to make a specific decisions, must be in the persons best interests. There are standard minimum steps to follow when working out someone s best interests. Deprivation of liberty is a term used in the European Convention on Human Rights about circumstances when a person s freedom is taken away. Its meaning in practice is being defined through case law. Independent Mental Capacity Advocate (IMCA) Someone who provides support and representation for a person who lacks capacity to make a specific decisions, where the person has no-one else to support them. Lasting Power of Attorney (LPA) Two stage test of Capacity: Court of Protection: Advanced decision: Attorney: A Power of Attorney created under the Act appointing an attorney (or attorneys) to make decisions about the donor s personal welfare (including healthcare) and/or deal with the donor s property and affairs. To assess whether or not a person has capacity to make a decision for themselves at that time. The specialist Court for all issues relating to people who lack capacity to make specific decisions. A decision to refuse specified treatment made in advance by a person who has capacity to do so. Someone appointed under either a Lasting Power of Attorney (LPA) or an Enduring Power of Attorney (EPA), who has the legal right to make decisions within the scope of their authority on behalf of the person (the donor) who made the Power of Attorney. Mental Capacity Act 2005 Policy 18

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