Practice Guidance for the Implementation of the Mental Capacity Act 2005 Exec Director lead Clinical Director lead Author Clive Clarke Alick Bush. Clinical Director, Joint Learning Disabilities Cath Dixon, MHA Administrator Date of draft vember 2007 Consultation period September to vember 2007 Date of ratification 29 January 2009 Ratified by Executive Director Group Date for review vember 2010 Target audience All Staff Version 2 of Practice Guidance for the implementation of the MCA 2005 The guidance is stored and available through the SHSC intranet The guidance is based on the MCA 2005 and the Code of Practice to the MCA 2005 Amended September 2008 to add further guidance on processes to be used in relation to Lasting power of Attorney provisions (Appendix A3, page 21) MCA Guidance (Version 2)
Section Contents: Decision Making Pathway flowchart 1 Best Interest Pathway flowchart 2 Page 2 3 Introduction 4 1 Mental Health Act 4 2 Five Key Principles 5 3 Capacity 6 - What is mental capacity - When should mental capacity be assessed - Who should assess - Helping to make own decision - Assessing capacity - The test 4 Best Interest Decision 8 - Best interest check list 5 Advance Decision to Refuse Treatment 9 6 Lasting Power of Attorney 10 7 Independent Mental Capacity Advisor (IMCA) 11 8 Children & Young People 11 9 Resolution of Disputes 12 10 How to Document the Activity and Work 13 11 Decisions that Others are Prohibited from taking 13 12 Disclosure of Information 13 13 Research Involving People who Lack Capacity 14 14 Criminal Offence 14 - Using restraint 15 Useful web sites 14 Appendices: Appendix A1 Assessment of Capacity Form 16 Appendix A2 Best Interests Decision Record 18 Appendix A3 Lasting Power of Attorney Additional te 21 Appendix A4 Guidance for requesting an IMCA 22 Appendix B Equality impact assessment form 26 Appendix C Human rights act assessment checklist 27 Appendix D Version Control Sheet 28 Other references Mental Capacity Act 2005 Mental Capacity Code of Practice Advanced Statement/Advance Directives, Guidance on Responsibilities of Sheffield Health & Social Care Trust Staff Sheffield Health & Social Care Trust Consent Policy & Procedure SHSC Joint Policy Prevention & Management of the use of Restraint Further information is available from: alick.bush@shsc.nhs.uk MCA Guidance (Version 2) Page 1 of 28
Mental Capacity Act (2005) Decision Making Pathway Flowchart 1 All adults should be presumed to have capacity unless the opposite has been demonstrated. Consent must be obtained by the person undertaking the procedure and is specific to the decision to be made. The key principles should be followed see guidance note (2) Emergencies Children under 16 (8) Yes Respect the wishes of the person. A person with Capacity has the right to make what might be seen to be eccentric or unwise decisions Consent form for treatment Issue requiring person to give informed consent Do you think the person has the capacity to consent (3) Following assessment of Capacity ; person does not have capacity Is there an Advance Statement/Directive? (5) Is there a Lasting Power of Attorney or deputy? (6) Yes You must seek legal advice Best Interest Pathway MHA (1) Does the decision involve a serious medical treatment or The NHS arranges Hospital stay for 28 days or more or The arrangement of accommodation for 8 weeks or more Unsure Assess capacity to consent (3b) See Test for Capacity (3c) Clarify what is Valid Consent NOTE: Numbers refer to guidance notes Legal/Statutory requirements of the Mental Capacity Act (2005) Test for Capacity: Understand the information given to them Retain the information long enough to make the decision Weigh up the information available to make the decision Communicate the decision Valid Consent is: Given by a competent person Be given voluntarily Given following receipt of adequate information All practicable steps: Consider use of real objects or photographs/hierarchy of symbolic development Arrange visits to treatment areas Develop information packages that are accessible Give the person extra time Least restrictive option: Anything done for or on behalf of the person without capacity should be the least restrictive to their basic rights and freedoms Every person has the right to be supported to make their own decision Has/ ensure that all practicable steps been taken to ensure understanding Yes If the person is unbefriended you must make IMCA referral Best Interests: Anything done for and or on behalf of a person without capacity must be in the person s best interests A best interests meeting should include all relevant parties include the person, medic (GP/ Doctor), advocate/imca, carers, nurse, Allied Health Professional and or people who know the person well See Best Interest Pathway Yes Ensure that all who are involved in the persons welfare are consulted Go ahead with best interest decision Consent form for treatment Arrange a best interests meeting (4) An Independent Mental Capacity Advocate (IMCA) must be involved if the person lacks capacity and has no relatives and or close friends and requires: Serious medical treatment; which involves providing, withdrawing or withholding treatment in specific circumstances where; In what is being proposed, there is a fine balance between the likely benefits and the risks to the person, or where there is a choice of treatments, and a decision as to which one to use is finely balanced or what is proposed would be likely to involve serious consequences for the person Or the NHS arranges a hospital stay for 28 days or more Or the NHS or Local Authority arrange accommodation for 8 weeks or more Deprivation of Liberty Order Safeguarding Adults Procedures Authors: Allyson Kent, Mike Hood (2007) Adapted by Peter Bowie (2007) MCA Guidance (Version 2) Page 2 of 28
Mental Capacity Act (2005) Best Interest Pathway (4) Flowchart 2 Principle 4 - Anything done for, or on behalf of a person who lacks capacity must be done in the persons best interests NOTE: Numbers refer to guidance notes te: 16 & 17 year olds Test for Capacity has found the person lacks the capacity to consent therefore a best interests meeting must be arranged Is it likely that the person may have capacity in the future? The decision maker takes the responsibility to ensure that the proposed action is in the best interests of the person The decision maker needs to check if there is an advance directive, LPA or Deputy or if there is a friend/carer of person nominated by the person to consult Yes Can the decision or act wait until that time; consider if it is likely that the person will at some time have capacity to the matter in question. Yes Delay the decision until that time Can you identify when the person may have the capacity? Document and discuss with relevant others Consent Form for Treatment Seek Court of protection ruling You will need to evidence your decision making Does the decision involve serious medical treatment or a care home move Is there agreement that the proposal is in the persons best interests Is there a dispute Agreement reached Arrange the best interest meeting and invite all relevant parties, As decision maker follow the checklist opposite Guidance note (9) Try to resolve locally Yes Authors: Allyson Kent/ Mike Hood (2007) Adapted by Peter Bowie (2007) Yes Yes Is the person unbefriended? Evidence decision making using agreed decision record Yes Instruct an IMCA (10) Proposed action, treatment goes ahead, with evidence via the Decision Record that the action is in the persons best interests All relevant parties; the person, GP/Doctor, carers, nurse, allied health professional, social care staff, advocate, IMCA, or people who know the person really well The decision maker must: Consult with all relevant others i.e. the person, medic/gp, advocate/imca,carers and others involved with the person ie LPA/Deputy/EPA Identify the views of all relevant people in the persons life t make assumptions about a persons Yes best interests based upon the persons age, or appearance, condition or any aspect of their behaviour Consider all the relevant circumstances relating to the decision in question Involve the person as fully as possible Ensure that the decision concerns the the preservation of withdrawing of life sustaining treatment, the decision maker must not be motivated by a desire to bring about death Be able to justify and evidence their decision making Ensure that other least restrictive options are always explored (please complete best interests decision record) As far as possible the decision maker must consult with other people as appropriate to do so and take into account their views as to what would be in the best interests of the person lacking capacity, especially anyone previous named by the person as some one to be consulted, carers, and close relatives or friends of others involved in the persons welfare, LPA or deputy appointed by the court of protection. If it has not been possible to contact people, give details why not possible Record keeping; it is important that you accurately record and evidence any decisions made with regards to best interests To access Court of Protection refer to Public Guardian MCA Guidance (Version 2) Page 3 of 28
SHEFFIELD HEALTH & SOCIAL CARE TRUST DRAFT PRACTICE GUIDANCE FOR THE IMPLEMENTATION OF THE MENTAL CAPACITY ACT 2005 Introduction The Mental Capacity Act 2005 (MCA) will be fully implemented from October 2007 and will affect the way everyone in SHSC works. This local guidance must be read in conjunction with the Act, Regulations and the Mental Capacity Act Code of Practice 2007(Code of Practice). The MCA applies in England and Wales to everyone who works in health and social care and is involved in the treatment, care or support of people over 16 years of age who may lack capacity to make decisions for themselves and to give consent to treatment. It is based on existing best practice and creates a single, coherent framework for dealing with mental capacity issues and an improved system for settling disputes, dealing with personal welfare issues and the property and affairs of people who lack capacity. The Act aims to empower people who lack capacity to make decisions for themselves to remain at the centre of the decision making process and places a strong emphasis on supporting and enabling the individual to make his/her own decisions. It introduces important new safeguards for people who lack capacity and the people who work with, support or care for them. The Act is underpinned by five key principles which must inform everything you do when providing care or treatment for a person who lacks capacity (see section 2 below). The Code of Practice provides guidance to anyone who is working with and/or caring for adults who may lack capacity to make a particular decision. All those who work with people who lack capacity must have regard to it. These guidelines are a starting point to assist you in determining where to turn to in the Code of Practice when considering whether a vulnerable adult lacks capacity, how to establish this, what action to take, how to make decisions when a person lacks capacity and when to involve an Independent Mental Capacity Advocate (IMCA). Reference is made to the appropriate chapter throughout. These guidelines do not cover deprivation of liberty safeguards. Separate guidelines will be issued when the safeguards come into force. 1) Mental Health Act (Chapter 13) Professionals may need to consider using the Mental Health Act to detain and treat somebody who lacks capacity to consent to treatment if :- - the criteria for detention is met - it is not possible to give the person the care or treatment they need without doing something that might deprive them of their liberty and MCA Guidance (Version 2) Page 4 of 28
- the person needs treatment for a mental disorder that cannot be given under the MCA( e.g because the patient had made an advance decision refusing treatment see section 5) - the person may need to be restrained in a way that is not allowed under the MCA - it is not possible to assess or treat the person safely or effectively without treatment being compulsory - the person lacks capacity to decide some elements of the treatment but has capacity to refuse a vital part of it and they have done so, or - there is some other reason why the person might not get treatment, and they or somebody else might suffer harm as a result Before making an application under the MHA, decision makers should consider whether they could achieve their aims safely and effectively by using the MCA instead. A person who has made a valid advance decision may not be given treatment under the Mental Capacity Act contrary to their refusal of such treatment. However a person may be treated or their mental disorder under the MHA even if they have made a valid and applicable advance decision to refuse all or part of the treatment provided that they meet the criteria for detention Where a person who lacks capacity to consent is currently detained and being treated under Part IV of the Mental Health Act 1983 nothing in the Mental Capacity Act authorises anyone to: Give the person treatment for mental disorder, or Consent to the person being given treatment for mental disorder Provisions under the MHA Part IV are not covered by this guidance 2) Five Key Principles (Chapter 2) When identifying a mental capacity issue staff must follow the five key principles of the Act which inform every act or decision taken when providing care or treatment for a person who lacks or may lack capacity. 1. Every adult with capacity has the right to make his or her own decisions and must be assumed to have such capacity to do so unless it is proved otherwise. This means that you cannot assume that someone cannot make a decision for themselves just because they have a particular medical condition or disability. 2. People must be supported as much as possible to make a decision before anyone concludes that they cannot make their own decision. This means that you should make every effort to encourage and support the person to make the decision for themselves. 3. A person should not be treated as lacking capacity just because they make what others might regard an unwise or eccentric decision. Everyone has their own values, beliefs and preferences which may not be the same as those of other people. You cannot treat someone as lacking capacity for that reason. 4. Anything done for or on behalf of a person who lacks mental capacity must be done in their best interests (see section 4 below). 5. Anything done for, or on behalf of, people without capacity should be the least restrictive of their basic rights and freedoms. This means that when you do anything to or for a person MCA Guidance (Version 2) Page 5 of 28
who lacks capacity you must choose the option that is in their best interests and you must consider whether you could do this in a way that interferes less with their rights and freedom of action. 3) Capacity 3a) What is Mental Capacity? (Chapter 4) For the purpose of the Mental Capacity Act, a person lacks capacity if s/he is unable to make a particular decision at a particular time because of impairment of or disturbance in the functioning of the mind or brain, which may be temporary or permanent. 3b) When Should Mental Capacity be Assessed? It is important to carry out an assessment when a person s capacity is in doubt and a decision needs to be made regarding that person. 3c) Who Should Assess? Who should assess capacity will depend upon the decision that needs to be made. For most day to day decisions this will be the person caring for the person at the time the decision needs to be made but if the decision is about treatment or an examination it will involve the multi-disciplinary team. Ultimately it is up to the person responsible for the person s treatment at that time to make sure that capacity has been assessed. 3d) Helping to Make Own Decision (Chapter 2 & 3) The MCA imposes a duty on all those assessing capacity to make every practical effort to help someone make their own decisions. A person must not be treated as unable to make a decision unless all practical efforts to help them have been made without success. All the relevant information must be given to the person you are assessing. Even if the person lacks capacity they may have views on matters affecting the decision. Simple language should be used or where appropriate pictures, objects or illustration to demonstrate ideas. Be aware of cultural, ethnic or religious factors that shape a person s way of thinking, behaviour or communication. If necessary, consider using a professional language interpreter To help the person feel at ease careful consideration should be given to both the location the information is given in and the timing of the information. You must be able to establish a reasonable belief that a person lacks capacity to make a particular decision at a particular time and demonstrate why you believe the particular action in question is/will be in the person s best interest. You must record that all reasonable steps have been taken to endeavour to support the individual to make his/her own decision (see Appendix A1) MCA Guidance (Version 2) Page 6 of 28
3e) Assessing Capacity (Chapter 4) The presumption is that a person has capacity unless it can be established that they lack capacity. Any one assessing someone s capacity to make a decision from themselves should use the two stage test of capacity. The test is straightforward and will be undertaken by a range of carers and staff on a regular basis. 3f) The Test (Chapter 4) You must not make assumptions based on age, appearance, condition or any aspect of behaviour. You must instead follow the 2 stage test set out in the MCA and Code of Practice for establishing whether a person lacks capacity. 1) Is there an impairment of or disturbance in the functioning of the mind or brain? The presence of an impairment or disturbance of the mind must not in itself be taken to imply that a person lacks capacity to make a particular decision and stage 2 of the test must also be applied, as follows 2) If so, does it make the person unable to make that particular decision at that particular time? In order to answer this question, you must apply the functional test below: After providing all reasonable support to enable a person to make their own decision, can the person: understand information given to them relevant to the decision retain that information long enough to be able to make the decision use or weigh up the information available to make the decision communicate their decision (whether by talking, using sign language or any other means) If the answer to any one of these functions is no, even after all reasonable steps have been taken to empower the person, it should be be recorded that the person lacks capacity and the reasons why. This will be proof of the assessor s reasonable belief of incapacity. Assessments for most day to day decisions will not usually need to be recorded. The more complex the decision to be taken the more formal the assessment is likely to be. These will need to be recorded (see Appendix A1 for guidance) MCA Guidance (Version 2) Page 7 of 28
A non-exhaustive list of the types of cases which will need to be dealt with more formally and may require the involvement of further professionals is set out below: where an assessment is for a decision that needs to be taken which will have serious consequences; or where an assessment is or is likely to be disputed; or if a person is expressing different views to different people; or there are legal consequences to a finding of capacity; or a person is repeatedly making decisions that put them or others at risk of harm; or there is a question of capacity and a safeguarding issue. If someone refuses assessment the Act does not provide a mechanism for requiring a person to be assessed. If a person lacks the capacity to consent or refuse, the assessment will normally go ahead so long as the person does not object and it is in their best interests. If there are serious concerns about a person there are legal alternatives that may be considered and further advice should be sought in such cases. 4) Best Interest Decisions (Chapter 5) (See Best Interest Pathway (Flow chart2)) Where a person is assessed as lacking capacity and another person must take a decision on their behalf in connection with their care or treatment, as long as s/he acts in that person s best interests the decision maker will benefit from statutory protection from liability. 4a) Best Interests Checklist (Chapter 5) (See Best Interests Decision form (appendix A2) When assessing best interests, you must consider all relevant circumstances. Specifically you must consider the following issues as part of the best interests assessment: Is it likely that the person will at some time regain capacity to make the decision. If so, can the decision wait until then? Has the person been helped and encouraged to participate in the decision-making process so far as practicable? Have the following been considered, so far as is reasonable ascertainable? - the person s past and present wishes and feelings (including any advance statement made by them whilst they had capacity) - the beliefs and values that would be likely to influence their decision if they had capacity - other factors they would be likely to consider if able to do so (e.g. family obligations, emotional bonds) MCA Guidance (Version 2) Page 8 of 28
Have Key people been consulted (insofar as is practical and appropriate) about what is in the person s best interests, including the person s wishes, feelings values, beliefs: - Is anyone named as someone to consult with? - Carers, spouse/partner, family? - Others with an interest in their welfare friends, volunteers, professionals? - Any Lasting Power of Attorney? - Any Deputy appointed by the Court of Protection? Is there an alternative which would be less restrictive of the person s rights? te: Special considerations apply to life-sustaining treatment. Specifically, when considering whether life-sustaining treatment is in a person s best interests, the decisionmaker must not be motivated by a desire to bring about the person s death. In terms of treatment it is critical that healthcare staff are made aware of any advance decision. If one exists no further assessment of best interests in respect of the treatment referred to in the advance decision will be necessary. Key decisions and actions taken in someone s best interests should be recorded on the Best Interests Decision Record form (Appendix A2). For guidance on key decisions see Appendix A1). 5) Advance Decision to Refuse Treatment (Chapter 9) For more guidance see Advance Statements/Advance Decisions to Refuse Treatment Guidance on Responsibilities of Sheffield Health & Social Care Trust Staff (updated to reflect changes, available on Risk Department web page). An advance decision relates to medical treatment rather than to social care. The Act enables a person aged 18yrs or over, while still capable, to record their wishes to refuse medical treatment for a time in the future when they may lack the capacity to consent to or refuse that treatment. They must specify what treatment they want to refuse and they can cancel their decision- or part of it at any time. If the advance decision refuses life-sustaining treatment, it must - be in writing (it can be written by someone else or recorded in healthcare notes) - be signed and witnessed, and - state clearly that the decision applies even if life is at risk The existence of an advance decision should be checked upon initial assessment of a service user s need and recorded with the service user s notes. To establish whether an advance decision is valid and applicable healthcare professionals must try to find if the person:- - has done anything that clearly goes against their advance decision - has withdrawn their decision - has subsequently conferred the power to make that decision on an attorney, or - would have changed their decision if they had known more about the current circumstances MCA Guidance (Version 2) Page 9 of 28
Advance decisions to refuse treatment for mental disorder may not apply if the person who made the advance decision is or is liable to be detained under the Mental Health Act. 6) Lasting Powers of Attorney (LPA) (Chapter 7) (please note further guidance on processes to be used in relation to Lasting Power of Attorney provisions were added to this document in September 2008 and are contained in Appendix A3, page 24) An LPA gives another person the authority to make a decision on behalf of the person who lacks capacity. A Lasting Power of Attorney is a legal document that replaces Enduring Powers of Attorney and increases the range of different types of decisions that people can authorise others to make on their behalf and in their best interest. Only those aged 18 or over can grant Lasting Powers of Attorney Being subject to the Mental Health Act does not prevent a person from creating a Lasting Power of Attorney providing they have the capacity to do so, however, an attorney would have no power to give or refuse consent for treatment for a mental disorder given under part IV of the Mental Health Act. As well as property and financial affairs LPAs can also cover health and personal welfare decisions (including healthcare and consent to medical treatment) for people who lack capacity to make the decisions for themselves. A paid care worker should not agree to act as an attorney, apart from in exceptional circumstances, and in these cases it should be referred to the relevant Service Director for a decision. Existing Enduring Powers of Attorney will still be valid after October 2007. These have to be registered with the Office of Public Guardian when the donor can no longer manage their own property and finances. An LPA must be registered with the Office of the Public Guardian before it can be used. An unregistered LPA does not give the attorney any legal powers to make a decision for the donor. An EPA and a property and affairs LPA can be used while the donor has capacity to manage their own property and affairs provided that the LPA does not state otherwise. However, the personal welfare LPA can only be used once the donor lacks capacity to make the welfare decision in question. A personal welfare LPA allows attorneys to consent to or refuse treatment on behalf of the donor if the donor loses capacity, unless the donor has stated clearly in the LPA that they do not want the attorney to make these decisions. If the donor has granted the attorney power to consent to or refuse treatment, the decision of the attorney will override that of the clinical team MCA Guidance (Version 2) Page 10 of 28
However, the attorney is under an obligation to act in the donor s best interests. If the clinical team believe they are not doing so, there is scope to refer the matter to the Court of Protection for a decision on best interests. Life-sustaining treatment can be given whilst awaiting resolution via the Courts. Attorneys have no power to consent to or refuse life-sustaining treatment, unless the LPA expressly authorises this. An attorney cannot consent to treatment if the donor has made a valid and applicable advance decision to refuse that treatment (unless the donor made an LPA after the advance decision, giving the attorney the right to consent to or refuse that treatment, in which case the attorney could choose not to follow the advance decision) 7) The Role of the IMCA and Process for Making Referrals (Chapter 10) The purpose of the IMCA (Independent Mental Capacity Advisor) service is to help particularly vulnerable people who lack the capacity to make important decisions about serious medical treatment and changes to accommodation, and who have no family or friends that it would be appropriate to consult about these decisions, namely a nominated person, LPA, EPA, Deputy, or any other persons (other than paid staff) who it would be appropriate to consult in determining best interest. For further information see attached Guidance for Requesting an IMCA (Appendix A4). 8) Children & Young People (Chapter 12) The MCA does not generally apply to people under the age of 16yrs but most of the Act applies to young people aged 16-17yrs who may lack capacity to make specific decisions. However there are 3 exceptions:- one under 18yrs old can make a lasting power of Attorney one under 18 yrs old can make an advance decision to refuse medical treatment The Court of Protection may only make a statutory will for a person 18 yrs and over. The care & treatment for those under 16 yrs is generally governed by common law principles. Most of the Act applies to people aged 16yrs & over. For the Act to apply to a young person they must lack the capacity to make a decision, however in such a situation there may be an overlap with the Children Act 1989 and in such situations either Act may apply depending on the circumstances (there are currently no specific rules for deciding when to use the Children Act or MCA). As with adults, the starting point is that 16 and 17 year olds must be presumed to have capacity unless prove otherwise. When assessing whether a young person lacks capacity the same principles apply as to when assessing those over 18yrs i.e And They have an impairment or disturbance that affects the way their mind or brain works MCA Guidance (Version 2) Page 11 of 28
The impairment or disturbance prevents them from making a specific decision at the time it needs to be made If however they are unable to make the decision for some other reason, for example if they are overwhelmed by the need to make the decision, then the Act will not apply and the legality of any treatment should be assessed under common law principles. If a young person lacks the mental capacity to make a specific treatment decision, healthcare staff may carry out the treatment with protection from liability whether or not a person with parental responsibility consents, providing the Act s principles are followed and the actions they carry out are in the young person s best interest. As with those over 18yrs old all factors in the best interest list must be considered. The views of anyone involved in the caring or have an interest in the welfare of the young person, must also be considered where it is practical & appropriate to do so. If a young person has said they do not want their parents to be consulted, it may not be appropriate to do so. 9) Resolution of Disputes (Chapter 15) There may be a challenge, among other things, to: an assessment of a person s capacity to make a decision; what is in their best interests; a decision someone is making on their behalf or an action someone is taking on their behalf. If the challenge comes from the individual who is said to lack capacity, they might need support from family, friends or an advocate. It is important that everything is carefully documented showing:- reasonable belief for the assessment of lack of capacity; application of the MCA principles; objective evidence to support that belief. In order to resolve the dispute you may need to consider A second opinion; Use of an advocate; Complaints procedure; Mediation; PALS service Local Government Ombudsman. If a disagreement cannot be resolved through informal discussion the Trust s complaints procedure should be followed However some disagreements and some subjects are so serious they can only be resolved by the Court of Protection. For instance the more irreversible the nature of the decision about which there is disagreement, the higher the level of consultation and agreement with the decision will be required. MCA Guidance (Version 2) Page 12 of 28
10) How to Document the Activity and Work. Records will be critical and an accurate detailed record of the decision that needs to be made, the assessment of mental capacity and the determination of best interest must be made.. Assessment of capacity and best Interests should be recorded on the Assessment of Capacity & Best Interests Decision Forms (Appendix A1 & A2) The records should cover the decision and the risks identified of what would happen if the decision is made or is not made, together with supporting evidence such as care plans, medical/professional reports; LPA s; advance decisions; etc. 11) Decisions that Others are Prohibited from Taking (Chapter 1) The MCA excludes a person from consenting to the following decisions on behalf of someone who lacks capacity; to marriage or a civil partnership, to sexual relations; to a decree of divorce on the basis of two years separation; to the dissolution of a civil partnership; to a child being placed for adoption or the making of an adoption order. The Act excludes a person from making a decision on behalf of someone who lacks capacity that: discharges parental responsibility for a child in matters not relating to the child s property; gives consent under the Human Fertilisation and Embryology Act 1990. thing in the Act permits: a decision on voting, at an election for any public office, or at a referendum, to be made on behalf of a person who lacks capacity to vote. For the avoidance of doubt, nothing in the Act is to be taken to affect the law relating to murder, manslaughter or assisting suicide. 12) Disclosure of Information (Chapter 16) Records relating to the service user will be confidential and may only be disclosed with the individual s consent. If the individual lacks capacity to consent to disclosure, a person with formal authority (eg an attorney under an LPA or a court-appointed deputy) will have a right to access records relevant to decisions they have a legal right to make. Disclosure to others involved with the person s care (e.g. carers, family members) may also be justifiable on a case by case basis, provided the disclosure is in the incapacitated person s best interests. In any case, disclosure should be limited to the minimum information required to address the purpose of the request for disclosure. MCA Guidance (Version 2) Page 13 of 28
13) Research Involving People Who Lack Capacity (Chapter 11) The provisions relating to restriction of research are detailed and are not covered by this guidance. In brief the Act imposes strict rules in relation to research involving persons who lack capacity. The Act imposes rules on research relating to when the research can be carried out; the ethical approval process; respecting the wishes and feelings of the people who lack capacity; and other safeguards to protect people who lack capacity. All research must be approved through the Research Governance Procedures. 14) Criminal Offence (Chapter 6) The MCA introduces a new criminal offence of ill treatment or wilful neglect of a person who lacks capacity. The offence is liable to imprisonment (maximum sentence 5yrs) and /or fine. However the MCA provides possible protection from actions carried out in connection with care and treatment providing: the person is reasonably believed to lack capacity to give permission for the action the action is thought to be in the person s best interests and the Act s principles have been followed. 14a) Using Restraint Restraint covers a wide range of actions but the MCA defines restraint if you use force or threaten to use force to make someone do something that they are resisting restrict a person s freedom of movement, whether they are resisting or not You will be protected from liability providing the following two conditions are met: the person taking action must reasonably believe that restraint is necessary to prevent harm to the person who lacks capacity the amount or type of restraint used and the amount of time it lasts must be a proportionate response to the likelihood of serious harm. Further guidance on restraint see Sheffield Health & Social Care Trust Joint Policy Prevention and Management of the use of Restraint. 15) Useful Web sites 1. Mental Capacity Act Code of Practice. This is a large document (300 pages) but is also an easy to read format and it contains many vignettes and examples. There is a requirement that everyone works within the guidance of the Code of Practice. Copies will be made available in each worksite, or you can download it from: http://www.dca.gov.uk/menincap/legis.htm#codeofpractice MCA Guidance (Version 2) Page 14 of 28
2. Mental Capacity Act 2005 This is the full Act of Parliament. It can be downloaded from http://www.uk-legislation.hmso.gov.uk/acts/acts2005/20050009.htm There is also a brief summary version of the Act that is available from: http://www.dh.gov.uk/assetroot/04/10/85/96/04108596.pdf 3. Updates from the Department of Constitutional Affairs (DCA) The DCA produces newsletters every 2 months. You can sign up to receive these by emailing: makingdecisions@dca.gsi.gov.uk or downloading from their website: www.makingdecisions.org.uk 4. A guide for people who work in health and social care. A very helpful pamphlet has been developed for staff who work in health and social care. Copies will be made available in each worksite, and it is available electronically from: http://www.dca.gov.uk/legal-policy/mental-capacity/mibooklets/booklet03.pdf 5. Department of Health publishes guidance for healthcare and social care staff On using restraint with people with learning disabilities and autistic spectrum disorder, see Guidance for restrict physical interventions: http://www.dh.gov.uk/assetroot/04/06/84/61/04068461.pdf On consent to examination and treatment, including advance decisions to refuse treatment : http://www.dh.uk.consent For more information and relevant forms for, LPA, Court of Protection, EPA: www.publicguardinan.gov.uk 6. Updated information is available from www.sheffield.gov.uk/mca 7. Further information is available from: alick.bush@shsc.nhs.uk MCA Guidance (Version 2) Page 15 of 28
Appendix A1 Mental Capacity Act 2005: Assessment of Capacity and Record of Best Interest Decision Action/decision that needs to be made: Please be specific about the action/decision to be taken.eg Mrs. Smith wants to live at home on her discharge from hospital and not to move to a care home. Does she have the capacity to make this decision at this time? Name of person for whom a decision needs to be made: Insight Client ID: Date of birth of person: NHS./Other Identifier: Address and Contact details (permanent and temporary if different): Please insert temporary address if different from above Date of decision: Name of decision maker: This is the most appropriate person who is directly concerned with the person at that time or carrying out the action on behalf of someone. Please see chapter 4 of the Code of Practice. Is there a Lasting Power of Attorney or Deputy in place? Yes (you must consult) Consider any Advance Decision to refuse treatment/statement if in place and applicable (if applicable copy of statement must be obtained). Consider if an assessment under the Mental Health Act 1983 is appropriate. Mental Capacity Assessment: 1. Is there an impairment of or disturbance in the functioning of the person s mind or brain, either temporary or permanent? If the answer to this question is yes please consider the following points to determine whether they have capacity to make the particular decision. Does the person understand the information relevant to the decision? Can the person retain the information long enough to make a decision? Can the person use or weigh the information in order to make a decision? Can the person communicate their decision? Yes MCA Guidance (Version 2) Page 16 of 28
If the answer to any of the above 4 points is NO the person lacks capacity for that particular decision at that particular time and the answer to question 2 is yes, and therefore, a best interest decision needs to be made on their behalf. 2. Does that impairment or disturbance make the person unable to make the particular decision? te what steps have been taken to assist the person make this decision themselves have all practicable steps been taken to ensure understanding? (eg Use of real objects, photographs, leaflets etc). Make sure that you detail the steps that you have taken Can the decision wait until the person has capacity, if so document evidence for this and delay the decision? If not document evidence for this and arrange a best interest meeting. Utilise your knowledge of the service user as there may be a better time to make the decision te what documents/records/people were consulted in reaching this decision. Specifically note if the decision is made by an Attorney or Deputy. Details of the decision following an assessment that the person did not have capacity to make the decision himself or herself. te also any actions taken following this decision, should be detailed in care plans/treatment plans etc. Detail the decision made and attach a risk management/care plan. Guidance: Use this form when key decisions and actions are taken on a person s behalf because they do not have the capacity to decide for themselves. Key decisions means significant decisions that go beyond a person s daily routine or way of life. For example, decisions about: medical treatment or dentistry restriction of liberty including physical restraint, locked doors, telephone use, sedative medication the use of person s money for more than their usual necessities obtaining or disposing of possessions of significant value spending periods away from their usual home limiting activities (like smoking or drinking or special diet) that the person would normally choose to do bringing new people into the person s life (like an advocate or volunteer). Also use this form for big, life-changing decisions, for example: moving to a different home having major medical treatment disposing of significant assets. These decisions will usually involve a wider range of people in the decision-making process, sometimes at a Best Interest Meeting. This form should then be used in conjunction with the Best Interest Checklist and Decision Record. Do not use this form with regard to small decisions that affect a person s daily routine, for example: what the person wears how they use their weekly benefits to buy necessities when they take their meals. MCA Guidance (Version 2) Page 17 of 28
Appendix A2 Guidance for the completion of this form is in red Best Interests Decision Record If a person has been assessed as lacking capacity, then any action taken, or any decision made for, or on behalf of that person, must be made in his/her best interests Principle 4 Date of Meeting: Insight Client ID: Name of Person: NHS Number: Attendees at Meeting Ward/Unit: Apologies (written feedback received) Please specify who the designated decision maker is on this occasion for this specific decision What is the nature of proposed action or decision to be made ie restriction of liberty, examination and/or treatment, or care provision? Please be specific Is there a least restrictive option (If yes, please explain this in full) Yes MCA Guidance (Version 2) Page 18 of 28
What is the justification for proposed action? Why are you taking the planned option. Are there any risks relating to proposed action? Yes (Please give details) Also refer to/develop a risk management plan Is there an Advance Decision/Statement? (Does this relate to the decision in question as this will override the need to carry out best interests?) Yes (Please give details) Be aware that an advanced decision/statement does not overrule provisions under the Mental Health Act. What are the person s past and present wishes and feelings? (Check if these have been written down anywhere or have been expressed in either emotional responses and or behaviours) Are there any beliefs and or values that would be likely to influence the decision, if he/she had the capacity? Are there any other factors that need to be considered, factors that the person would be likely to consider if he/she were able to do so? (Emotional bonds or family obligations in deciding how to spend money or where to live) If a person has been nominated by the incapacitated person to consult, what are their views? MCA Guidance (Version 2) Page 19 of 28
What are the views of the other relevant people in the person s life? Is there a dispute about best interests? Yes (Please give details) Be specific about the nature of disputes and who is involved in them Outcome of discussions; reasonable belief as to best interests (The decision maker must take the above steps, amongst others and weigh up the factors in order to determine what decision of course of action is in the best interests of the person concerned) Be specific about what best interest decisions have been made. The undersigned believe this to be a fair representation of the discussions that took place. We have reasonable grounds for believing that what is being planned is in the best interests of the person concerned at this point in time. Name: Designation:Designated decision maker should sign in the first box Signature: Date: Name: Designation: Signature: Date: Name: Designation: Signature: Date: Name: Designation: Signature: Date: Name: Designation: Signature: Date: Name: Designation: Signature: Date: MCA Guidance (Version 2) Page 20 of 28
Appendix A3 THE LASTING POWER OF ATTORNEY ADDITIONAL NOTE TO PRACTICE GUIDANCE FOR IMPLEMENTATION OF THE MENTAL CAPACITY ACT (SHSC) Clinicians working with people lacking capacity in any particular respect may be making decisions on their behalf in their best interests under the MCA. If the client has registered a Lasting Power of Attorney, (or there is a Court of Protection Deputy), the legal situation is changed. Where the client lacks capacity, the attorney or deputy is empowered to refuse or consent to any best interests decision that the clinical team wishes to make. However, if the client is subject to detention / compulsory treatment provisions under the Mental Health Act, s/he may be given treatment for mental disorder (except ECT), as allowed under the Act, overruling any refusal made by the LPA. As part of this process of gaining consent from attorney / deputy it will usually be good practice to consult that person in any case discussions, CPA reviews etc., rather than just present him /here with a decision for approval. This applies in the areas that the LPA covers, so it is necessary to know exactly what is covered in the LPA Whether there is an LPA is a question that should be routinely asked by professionals. Any professional becoming aware of the existence of a registered LPA should inform the care co-ordinator, who should then (i) Ensure that the details are entered on Insight in demographics. (once this becomes available) (ii) Complete a Lasting Power of Attorney Details form (in documents ) specifically stating what the power covers (iii) (iv) (v) Use the warning box on Insight to direct the reader to this form Make contact with the LPA, view documentation, arrange how they will be involved in decision making and how their consent will be obtained. If appropriate, someone involved other than the care co-ordinator can enter these details on Insight and inform care co-ordinator subsequently When anyone completes a best interests decision form ensure details of consultation with, and decisions by any attorney or Deputy are recorded An LPA registered after an advance directive / decision to refuse treatment will overrule the advance decision. (MCA Code of practice 9.40) But an advance decision written after the registration of an LPA or Deputy will overrule any decision of an LPA or deputy (MCA Code of Practice 9.33) See advance statement / directive guidance for further information in such a case MCA Guidance (Version 2) Page 21 of 28
Appendix A4 1) Introduction GUIDANCE FOR REQUESTING AN IMCA 1.1) The Independent Mental Capacity Advocacy (IMCA) service is a new statutory advocacy service introduced in the Mental Capacity Act 2005 (MCA) and developed further by regulations. 1.2) The MCA 2005 makes it a legal requirement for people lacking mental capacity to have independent advocacy when there are no relatives or close friends to speak for them. 2) Purpose of the IMCA 2.1) The purpose of the IMCA service is to help and represent a person who lacks capacity to make certain serious decisions. Their role is to gather information, provide support to the person concerned and make representation about that person s wishes, feelings, beliefs and values and bring to the attention of the decision maker all the factors that are relevant to the decision. They will also be able to challenge the decision maker. 2.2) When an IMCA is instructed provisions should be made, where possible, for the IMCA to meet with the person in private. The IMCA must obtain the views of the professionals and paid workers providing the care and treatment and so the professional and paid workers should be available to meet with the IMCA. The IMCA should obtain any other information they think necessary, find out what support the person has had to help them make a specific decision, find out what alternative options there are and may consider getting another medical opinion. For these reasons the IMCA has the right under the MCA to examine any relevant Health Care & Social Care records. The IMCA must write a report on their findings. 2.3) The IMCA helps safeguard the rights of people who are Facing a decision about a long term move or serious medical treatment Lack capacity to make specific decisions at the time it needs to be made Have nobody willing and able to represent them other than paid staff 2.3) An IMCA is not the decision maker but the decision maker will have a duty to take into account the information given by the IMCA. 3) Who is the Decision Maker? 3.1) The decision maker is the person who is proposing an action in relation to the care and treatment of an adult who lacks capacity or who is contemplating making a MCA Guidance (Version 2) Page 22 of 28