POLICY/GUIDANCE FOR IMPLEMENTATION OF THE MENTAL CAPACITY ACT (MCA) Prepared by:
Tracy Small
Approval Information:
Patient Care and Professions Date Approved: COMMITTEE:-
Lead Director:
Sheila Dilks
Responsible Area:
Core/Development standard
Performance indicators History of Document
17th October 2007 PEC
Version No. Approved:
Number 1
Review Date:
October 2007
C1, C2, C5, C6, C7, C9, C11, C12, C13, C16,C17, C22, D1, D2, D5, D9, Increased number of PCT staff who are aware of the Mental Capacity Act. Increased number of PCT staff who have attended Mental Capacity Act training Evidence of staff receiving awareness raising materials
CONTENTS Section No.
MCA Policy
Page No’s
1.
Introduction/Overview
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Values underpinning this policy 2.1 Associated Policies and Procedures Aims & Objectives 3.1 Aim 3.2 Objectives 3.3 Background Kirklees PCT responsibilities 4.1 Trust responsibilities 4.2 Managers responsibilities 4.3 Individuals responsibilities 4.4 Training 4.5 Record Keeping
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MCA Guidance
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5.1 – Mental Capacity 5.2 – Five principles of the Mental Capacity Act 5.3 – Assessing Capacity 5.3.1 The Mental Capacity Act requires the use of a two stage test of capacity 5.4 – Working with the Patients Best Interests 5.5 – Protection for people providing care or treatment for someone who lacks capacity 5.6– The Independent Mental Capacity Advocate (IMCA) Service 5.7 – Lasting Powers of Attorney 5.8 – Court of Protection, deputies and the Public Guardian 5.9 – Advance decisions to refuse medical treatment 5.10 – Research and people who may lack capacity 5.11 – MCA and the interface with other legislation References and Bibliography
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Appendices 1. List of Abbreviations 2. Checklist of key factors to be considered when working out what is in the best interests of a person who lacks capacity. 3. Advance Decisions to Refuse Treatment 4. Further Information
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NICE Guidance Once NICE guidance is published, health professionals are expected to take it fully into account when exercising their clinical judgement. However, NICE Guidance does not override the individual responsibility of health professionals to make appropriate decisions according to the circumstances of the individual patient in consultation with the patient and/or their guardian or carer.
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Introduction/Overview The Mental Capacity Act (MCA) was introduced in 2005, with implementation commencing for two parts in April 2007. It applies to everyone who works in health and social care and is involved in the care, treatment or support of people aged 16 and over who are unable to make all or some decisions for themselves.
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Values underpinning this policy Kirklees PCT is committed to ensuring patients / clients / carers receive appropriate care and support from its healthcare team. The implementation of the MCA is a legal requirement, which the PCT takes seriously and has agreed to provide support and training for staff in the development of knowledge and skills to ensure the Act is appropriately implemented. 2.1
Associated Policies and Procedures
Kirklees Consent Policy (under review) Kirklees Resuscitation policy and procedures (under review) Kirklees Records Management policy Kirklees PCT Training Programme Mental capacity Act (2005) Mental Capacity Act Code of Practice (2007) Kirklees Vulnerable Adults procedures Kirklees Child protection Policies and Procedures 3.
Aims & Objectives 3.1 Aim This document aims to state the policy for implementation of the Mental Capacity Act within Kirklees PCT. It will also provide guidance for staff to follow in their every day work. This is supported by literature and advice taken from the Mental Capacity Act and Mental Capacity Act code of practice. 3.2
Objectives
To provide the PCTs policy on the Mental Capacity Act. To provide support and guidance to staff implementing the Act. 3.3
Background to the Mental Capacity Act
The Mental Capacity Act provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make decisions for themselves. All those working with people who lack capacity are legally required to ‘have regard to’ relevant guidance in the Code of Practice. This information can be located on the PCT intranet, or via the following web site: http://www.dca.gov.uk/legal-policy/mental-capacity/mca-cp.pdf From the 1st April 2007 two section of the Act come into force, these being the Independent Mental Capacity Advocate (IMCA ) service and the new offences of illtreatment or wilful neglect. The full Act will be enforced in October 2007.
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Kirklees PCT responsibilities 4.1
Trust Responsibilities
The trust is committed to ensuring that staff receive support and training to appropriately implement the Mental Capacity Act. It is responsible for ensuring all staff working within the PCT receive appropriate training to undertake their roles. 4.2
Managers responsibilities
It is each managers responsibility to ensure all staff are informed of the Mental capacity Act and receive sufficient knowledge and support to undertake their role 4.3 Individuals responsibilities It is each individuals responsibility to ensure they receive sufficient knowledge and information about the Mental Capacity Act to undertake their role. In the event that the individual does not feel competent and / or confident to undertake their role, they must identify this with their line manager. All individuals are legally required to ‘have regard to’ the relevant guidance in the Mental Capacity Act Code of Practice. 4.4
Training
The PCT will provide trained trainers to undertake cascade training. Time will be provided for staff to undertake this work. Basic awareness training for the Mental Capacity Act is mandatory for all staff coming into contact with clients. Additional specific training will be made available for those staff working within areas where clients have specialist needs under the Mental Capacity Act. Time will be allocated to attend MCA training 4.5 Record Keeping All staff are required to appropriately document information in the professional records where: • • • •
An assessment has been made as to the individuals mental capacity Decisions are made for clients who lack mental capacity, with the professional judgements used to support the provision of care, treatment or service. These decisions must be based upon the ‘patient’s best interest’ It is identified that a Lasting Power of Attorney exists It is identified that Advanced decisions to refuse treatment exist
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Mental Capacity Act Guidance 5.1 – Mental Capacity Having mental capacity means the ability to make decisions or to take actions affecting daily life. The new law indicates that a person is unable to make a particular decision if they cannot do one or more of the following: • • • •
Understand information given to them Retain the information long enough to be able to make the decision Weigh up the information available to make the decision Communicate their decision – this could be by talking, sign language, or muscle movements e.g. blinking etc.
Everyone can have difficulties making decisions from time to time. This Act covers situations where someone is unable to make a decision because the way their mind or brain works is affected, for instance by illness, disability or through the effects of drugs or alcohol. 5.2 – Five principles of the Mental Capacity Act There are five key principles which emphasise the fundamental concepts and core values of the Mental Capacity Act. These must always be born in mind when working with, or providing care or treatment for people who lack mental capacity. 1. A person must be assumed to have capacity unless it is established that he lacks capacity 2. A person is not to be treated as unable to make a decision unless all practicable steps to help him 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 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 his / her 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. 5.3 – Assessing Capacity When a patient in your care needs to make a decision you must assume they have capacity. You should make every effort to encourage and support the person to make the decision themselves, and a number of factors should be considered: • • • • • •
Has all the relevant information been provided to make the decision? Is information about alternatives available? Could information be explained / presented in an easier way for the person to understand? Is there a particular time of day, when the person’s understanding is better? Can anyone else help or support the person to understand the information or make a choice, e.g. relative, carer, or friend? Can the decision be delayed until the person does have capacity?
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Always bear in mind that just because someone lacks capacity to make a decision on one occasion, does not mean they will always lack capacity to make decisions in the future. The MCA is clear that any assessment of a person’s capacity must be ‘decision – specific’, this means: • • •
The assessment of capacity must be about a particular decision that has to be made at a particular time If someone cannot make complex decisions this does not mean they cannot make simple decisions You cannot decide that someone lacks capacity based upon their age, appearance, condition or behaviour alone.
An assessment of capacity will not normally be undertaken without involving family, carers, friends etc. 5.3.1 The Mental Capacity Act requires the use of a two stage test of capacity 1. Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain? If so: 2. Is the impairment or disturbance sufficient that the person lacks the capacity to make that particular decision at a particular time? This two stage test must be used and your records must show it has been used. In the event that the person cannot do one of the following, they will be deemed to lack capacity: • • • •
Understand information given to them Retain the information long enough to be able to make the decision Weigh up the information available to make the decision Communicate their decision – this could be by talking, sign language, or muscle movements e.g. blinking etc.
It is essential that your records document what actions you have taken to assist the person to make their own decision. However, if this is not possible you must always act in the person’s best interests. 5.4 – Working with the Patients Best Interests When 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 their best interests. There are exceptions to this, where the person has made an advance decision to refuse treatment and, in specific circumstances, the involvement of a person who lacks capacity in research. A checklist of some of the key areas to consider when determining the persons best interest is attached in Appendix 2. For decisions about major medical treatment or where the person should live and where there is no-one who fits into any of the consultation categories, an independent Mental capacity Advocate (IMCA) must be consulted. A decision – maker may be faced with people who disagree about a person’s best interests. A balance needs to be gained. It may be possible to gain agreement by 5
using the checklist with anyone who is involved with the decision. Ultimate responsibility for working out best interests lies with the decision maker. If someone wants to challenge the decision-makers conclusions, there are several options: Involve an advocate Get a second opinion Hold a ‘best interests’ case conference Attempt some form of mediation Pursue a review through the organisations formal procedures If all attempts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests. Any staff involved in care of the person who lacks capacity should make sure a record is kept of the process of working out the best interests of that person for each relevant decision, setting out: • How the decision about the person’s best interests was reached • What the reasons for reaching the decision were • Who was consulted to help work out the best interests, and • What particular factors were taken into account. • Any disputes / disagreements and actions taken This record should remain on the person’s file. For major decisions based on best interests of a person who lacks capacity, it may also be useful for family and other carers to keep a similar kind of record. 5.5 – Protection for people providing care or treatment for someone who lacks capacity Section 5(1) of the Mental capacity Act provides possible protection for actions carried out in connection with care or treatment.. The action may be carried out on behalf of someone who is believed to lack capacity to give permission for the action, so long as it is in the person’s best interests. To have this ‘reasonable belief’ that the person they care for lacks capacity, they must have taken ‘reasonable’ steps to establish that the person lacks that capacity. Some acts in connection with care or treatment may cause major life changes with significant consequences for the person concerned. Those requiring particularly careful consideration include a change of residence, perhaps into a care or nursing home, or major decisions about healthcare and medical treatment. In these situations the best interest requirements are still pertinent. It is also essential that the decision-maker considers whether there is a less restrictive option. Some cases will require an Independent Mental Capacity Advocate (IMCA). Decisions about a person’s care or treatment are often made by drawing up a care plan for the person. The preparation of a care plan should always include an assessment of the person’s capacity to consent to the actions covered by the care plan, and confirm that those actions are agreed to be in the person’s best interests. Healthcare staff may then be able to assume that any actions they take under the care plan are in the person’s best interests, and therefore receive protection from liability under section 5. But a person’s capacity and best interests must still be reviewed regularly. 6
5.6 – The Independent Mental Capacity Advocate (IMCA) Service In most situations, people who lack capacity will have a network of support from family members or friends who take an interest in their welfare. However, some people who lack capacity may have no-one to support them therefore the new Independent Mental Capacity Advocate (IMCA) service was created under the Act. The purpose of the IMCA service is to help particularly vulnerable people who lack 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 those decisions. The Kirklees PCT receives the IMCA service from Together – working for wellbeing, who can be contacted on telephone number 01924 361050, they also have a web site at: :www.together-uk.org/imca The IMCA service may also be contacted if there is a dispute in the identification of ‘best interest’. 5.7 – Lasting Powers of Attorney A person may wish to give another person authority to make a decision on their behalf. A power of attorney is a legal document to allow this to happen. Under a power of attorney, the chosen person (attorney or donee) can make decisions that are as valid as one made by the person (donor). An enduring power of attorney (EPA) allows an attorney to make decisions about property and finance, even if the donor lacks capacity to manage their own affairs. Under the mental Capacity Act EPA is replaced by Lasting Power of Attorney (LPA). This increases the decisions which people can authorise others to make on their behalf, these include property, finance and also personal welfare (including healthcare and consent to medical treatment). In the event that the person has capacity to make a particular decision for themselves. If they do: • A personal welfare LPA cannot be used – the person must make the decision • A property and affairs LPA can be used, even if the person has capacity, unless they have stated in the LPA that they should make decisions for themselves when they have capacity to do so. The donor can chose one person or several, to make different kinds of decisions. Following implementation in October 2007, only new LPAs will be available. However existing EPAs will continue to be valid. A paid care worker should not agree to act as an attorney, apart from in unusual circumstances (e.g. if they are the only close relative of the donor). Any healthcare worker being informed that an LPA has been registered, must document this within the patient records. When preparing a care plan for someone who has appointed a personal welfare attorney, they must first assess whether the donor has capacity to agree to that care plan or parts of it. If the donor lacks capacity, professionals must then consult the attorney and get their agreement to the care plan. They may also need to consult 7
the attorney when considering what action is in the person’s best interests. In the event that a professional believes the attorney is exploiting the donor, this must be reported to the Office of Public Guardian. In cases of suspected abuse the Trust Vulnerable Adult procedure should be followed. 5.8 – Court of Protection, Deputies and the Public Guardian The Office of the Public Guardian produces detailed guidance and overseas the work of the Court of Protection. Any LPAs and EPAs will need to be registered with the Public Guardian, prior to their use. For patients who have lack of mental capacity a search can be made by the Trust to determine if there is an appointed attorney or deputy. To request a search for a power of attorney, please contact the records manager in Corporate Services. It will be rare for the court of protection to be involved in most cases, as use of the code of practice will provide guidance regarding how to deal with situations. In the event of particularly difficult situation or where disagreements cannot be resolved in line with the MCA (chapter 15), the Court of Protection will appoint deputies for a person who lacks capacity. For cases about serious or major decisions concerning medical treatment the Trust or other organisation responsible for the patients care will usually make the application to the court. Potential applicants must gain permission of the Court of Protection before making an application. This will be co-ordinated through the Corporate Services Directorate. Where healthcare workers are involved in the care of patients, they must ensure they work within the MCA Code of Practice, as this will be taken into consideration by the court, should a case ever be referred. People who work in health and social care and are directly involved in the care or treatment of a person who lacks capacity, will not usually be appointed as deputies because of the possible conflicts of interest. 5.9 – Advance decision to refuse medical treatment An advance decision enables someone over 18, while still capable, to refuse specified medical treatment for a time in the future when they lack capacity to consent to or refuse treatment. An advance decision to refuse treatment must be valid and applicable to the current circumstances. If it is, it has the same effect as a decision that is made by the person with capacity: healthcare professionals must follow the decision. Healthcare professionals will be protected from liability if they: • Stop or withhold treatment because they reasonably believed that an advanced decision exists, and that it was valid and applicable. • Treat a person because, having taken all practical and appropriate steps to find out if a person has made an advance decision to refuse treatment, they do not know or are not satisfied that a valid and applicable advance decision exists. If the advance decision refuses life-sustaining treatment, it must: - be in writing 8
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be signed and witnessed, and state clearly that the decision applies even if life is at risk.
To establish if an advanced decision is valid the healthcare professional must determine if the person: • has done anything that clearly goes against their advance decision • has withdrawn the 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. Where it is concluded that an advance decision is not valid / not applicable. The contents of the document must be considered as an expression of the person’s wishes, when considering best interest decisions. Advance decisions to refuse treatment may be written or verbal. Healthcare professionals should record any known advance decision to refuse treatment in the healthcare record. Appendix 3 identifies what information should be included within advance decisions to refuse treatment. If there is a disagreement about an advance decision it is the healthcare professional who is in charge of the person’s care to decide whether there is an advance decision which is valid and applicable in the circumstances. (S)he may need to consult with colleagues and others who are close to or familiar with the patient. Details of these discussions should be recorded in the healthcare records. Where the outcome supports there being a valid and applicable advanced directive, this should be complied with. 5.10 – Research and people who may lack capacity It is important that research involving people who lack capacity can be carried out, and that it is carried out properly. Any research involving people who may lack capacity must: • • • •
have approval from the research ethics committee consult with the carer / other relevant people treat the person’s interests as more important than those of science and society, and respect any objections a person who lacks capacity makes during research
5.11 – MCA and the interface with other legislation There are certain decisions which can never be made on behalf of a person who lacks capacity. These include: Family Relationships • Consenting to marriage or civil partnership • Consenting to sexual relationships • Consenting to a decree of divorce on the basis of two years’ separation • Consenting to dissolution of a civil partnership • Consenting to a child being placed for adoption or the making of an adoption order • Discharging parental responsibility for a child in matters not relating to 9
the child’s property, or • Giving consent under the Human Fertilisation and Embryology Act 1990. Mental Health Act Matters (section 28) Where a person who lacks capacity to consent is currently detained and being treated under Part 4 of the Mental Health Act 1983, nothing in the act authorises anyone to: • Give the person treatment for mental disorder, or • Consent to the person being given treatment for mental disorder. Voting rights Nothing 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 the person who lacks capacity to vote. Unlawful killing or assisted suicide Nothing in the Act is to be taken to affect the law relating to murder, manslaughter or assisted suicide Although the Act does not allow anyone to make a decision about these matters on behalf of someone who lacks capacity to make such a decision for themselves, this does not prevent action being taken to protect a vulnerable person from abuse or exploitation.
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References & Bibliography Making Decisions. A guide for people who work in health and social care. (2007) Department of Constitutional Affairs. Mental Capacity Act (2005) Department of Constitutional Affairs. Mental Capacity Act Code of Practice (2007) Department of Constitutional Affairs. Mental Capacity Act Training Toolkit (2007). Personal care Consultants. Cheshire. UK.
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APPENDIX 1 Abbreviation list: CoP EPA – IMCA – LPA – MCA – OPG –
Court of Protection Enduring power of Attorney The Independent Mental Capacity Advocate Lasing power of Attorney Mental Capacity Act Office of the Public Guardian
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APPENDIX 2 Checklist of key factors to be considered when working out what is in the best interests of a person who lacks capacity. Encourage participation Do whatever is possible to permit and encourage the person to take part, or to improve their ability to take part, in making the decision. Identify all relevant circumstances Try to identify all the things that the person who lacks capacity would take into account if they were making the decision or acting for themselves Find out the person’s views Try to find out the views of the person who lacks capacity: • the person’s past and present wishes and feelings – these may have been expressed verbally, in writing or through behaviours • any beliefs and values that would influence the decision in question • any other factors the person would be likely to consider themselves Consult others If it is practical and appropriate to do so, consult other people for their views about the person’s best interests and to see if they have any information about the person’s wishes and feelings, beliefs and values. In particular, try to consult: • anyone previously named by the person as someone to be consulted on either a decision in question, or similar issues • anyone engaged in caring for the person • close relatives, friends or others who take an interest in the person’s welfare • any attorney appointed under an LPA or EPA, made by the person • any deputy appointed by the Court of Protection to make decisions for the person. When consulting, remember that the person who lacks capacity to make a decision or act for themselves still has a right to keep their affairs private – so it would not be right to share every piece of information with everyone. Other considerations • Do not make assumptions about someone’s best interest based upon age, appearance, condition or behaviour • Consider if the person is likely to regain capacity, and if the decision can wait. • Do not be motivated in any way by a desire to bring about the person’s death. Do not make assumptions about the person’s quality of life. • Determine if there are other options which are less restrictive of the person’s rights
Weigh up all of these factors in order to work out what is in the person’s best interests
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APPENDIX 3 Advance Decisions to Refuse Treatment Written Advance Decisions There is no set form for written advance decisions, because contents will vary depending on a person’s wishes and situation. It is helpful for the following to be included: • • • • • • • •
Full details of the person making the decision, including date of birth, home address, distinguishing features etc. GP name and address, and whether they have a copy of the document A statement that the document should be used if the person ever lacks capacity to make treatment decisions A clear statement of the decision, the treatment to be refused and the circumstances In which the decision is to apply The date the document was written (or reviewed) The persons signature ( or signature of someone the person has asked to sign on their behalf and in their presence) The signature of the person witnessing the signature, if there is one, and the relationship between the person and witness In the event that a healthcare professional witnesses a written advance directive, they must also make a record of their assessment of capacity, as acting as a witness does not prove there has been an assessment of capacity made.
Verbal Advance Decisions Healthcare professionals should record a verbal advance decision to refuse treatment in a person’s health record. This will produce a written record that could prevent confusion in the future. The record should include: • • • •
A note that the decision should apply if the person lacks capacity to make treatment decisions in the future A clear note of the decision, the treatment to be refused and the circumstances in which the decision will apply Details of someone present when the oral advance decision was recorded and role in which they were present (professional or family member) Whether they heard the decision, took part in it or are just aware of it existing.
In the event the decision is to refuse life-sustaining treatment, the advanced decision to refuse treatment must be written, signed and witnessed. Cancellation / withdrawal of an advance decision People can cancel or alter an advance decision at any time while they still have capacity to do so. This can be verbally or in writing. The person who made the advanced decision should tell anyone who knew about it. Healthcare professionals should record any cancellation or changes in the healthcare records.
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APPENDIX 4 FURTHER INFORMATION
Department for Constitutional Affairs: http://www.dca.gov.uk/legal-policy/mental-capacity Department of Health on the Bournewood Proposals: http://www.dh.gov.uk/en/Policyandguidance/Healthandsocialcaretopics/Mentalhealth/DH_0 63019 Department of Constitutional affairs; Easy read summary http://www.dca.gov.uk/menincap/mca-act-easyread.pdf Code of Practice http://www.dca.gov.uk/legal-policy/mental-capacity/mca-cp.pdf MCA summary http://www.dca.gov.uk/legal-policy/mental-capacity/mca-summary.pdf LPA – Personal Welfare guidance http://www.dca.gov.uk/menincap/lpa-pw-notes.pdf LPA – Property & affairs guidance http://www.dca.gov.uk/menincap/lpa-pa-notes.pdf
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Consultations with individuals/groups or subcommittees Individuals Name
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