Mental Capacity Act 2005 PDF

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Mental Capacity Act 2005 – Code of Practice Allows people to make decisions for themselves wherever possible, and protect people who lack capacity, by providing a flexible framework that places individuals at the heart of decision-making  Will ensure that as much as possible, decisions are made in...

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Mental Capacity Act 2005 – Code of Practice 

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Allows people to make decisions for themselves wherever possible, and protect people who lack capacity, by providing a flexible framework that places individuals at the heart of decision-making Will ensure that as much as possible, decisions are made in their best interests, and as a priority, the person participates as much as possible in any decision making The Act needs to be supported by practical guidance, and the Code of Practice is a key part What is the MCA?  Legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves  Everyone working with/caring for an adult who may lack capacity must comply with this Act when making decisions/acting for that person  Assumes that an adult (16+) has full legal capacity to make decisions for themselves (autonomy) until it can be shown they lack capacity to make a decision for themselves at the time it needs to be made – presumption of capacity  People must be given all appropriate help and support to enable them to make own decisions/participate in the decision-making process What decisions are covered or excluded? COVERED wide range of decisions, or actions taken, on behalf of people who lack capacity

EXCLUDED S27– cannot decide on behalf of a person in relation to: (a) Consenting to marriage/CP (b) Consenting to sexual relations (c) Consenting to decree of divorce based on 2 years’ separation (d) Consenting to dissolution order being made in relation to CP based on 2 years’ separation (e) Consenting to a child being placed for adoption by adoption agency (f) Consenting to making of an adoption order (g) Discharging parental responsibilities in matters not relating to a child’s property (h) Giving a consent under the Human Fertilisation and Embryology Act 1990 (i) Giving a consent under HF and E Act 2008 S28 – the Act does not authorise anyone (a) To give a patient medical treatment for mental disorder, or (b) To consent to a patient’s being given medical treatment for mental disorder If, at the time when it is proposed to treat

the patient, his treatment is regulated by Part 4 of the Mental Health Act S29 – cannot make a decision on voting at an election (for public office or referendum) to be made on behalf of a person S62 – nothing in this Act affects the law relating to murder/manslaughter or s2 Suicide Act 1961 (assisted suicide) Other relevant Acts       

Care Standards Act 2000 Data Protection Act 1998 Disability Discrimination Act 1995 Human Rights Act 1998 • Mental Health Act 1983 • National Health Service and Community Care Act 1990 • Human Tissue Act 2004.

Five Statutory principles, s1 MCA 1

S1(2) A person is assumed to have capacity unless it is established that they lack it

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S1(3) A person is not to be treated as unable to make a decision unless all steps to helm him have been taken without success  May include using different type of communication, providing information in a more accessible form, treating a medical condition which may affect the person’s capacity, or having a structured programme to improve a person’s capacity to make particular decisions  Anyone supporting a person who may lack capacity shouldn’t use excessive persuasion or ‘undue’ pressure i.e. being overbearing, dominating, influencing, pushing someone into an involuntary decision – Re T (Adult: Refusal of Treatment)  But should provide appropriate advice and information.

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S1(4) A person not to be treated as unable to make a decision merely because he makes an unwise decision  Respects individual values, beliefs, attitudes etc

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S1(5) An act done, or decision made, under this Act for/on behalf of a person who lacks capacity must be done, or made, in his best interests  Re MB (Medical Treatment) [1997] FLR 426  Re A (Male Sterilisation) 2000 1 FLR 549  Re S (Sterilisation: Patient’s Best Interests) 2000 2 FLR 389  Re F (Adult Patient: Sterilisation) Fam 15

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S1(6) Before the act is done/decision is made, regard must be had to whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of the person’s rights and freedom of action – less restrictive alternative

What does ‘lacks capacity’ mean?

 A person who lacks capacity to make a particular decision/take a particular action for themselves at the time the decision or action needs to be taken  Someone may be able to make small decisions day-to-day, but lack capacity to make more complex decisions. This also reflects where someone’s capacity can change, due to the nature of their condition, or where it may be impaired by drink or drugs  2 part test 1

Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain?  Proof that the person has an impairment that affects the way their brain works  If not, they will not lack capacity under the Act  E.g. mental illnesses, dementia, significant learning disabilities, brain damage, conditions causing confusion, drowsiness or loss of consciousness, delirium, concussion, and symptoms of alcohol/drug use

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Does the impairment/disturbance mean the person is unable to make a specific decision when they need to?  Only after they have been given all practical and appropriate help to support them making the decision  If they cannot – o Understand info about the decision to be made – ‘relevant information’  Nature of, reason for the decision, likely effects of deciding one way or another, or making no decision at all  S3(2) outlines need to present info in a way that is appropriate to meet the individual needs and circumstances o Retain that information in their mind  Long enough to make a decision  S3(3) – people who can only retain info for a short while must not automatically be assumed to lack capacity – depends on what is necessary for that specific decision o Use or weigh that information as part of the decision-making process  Re MB  R v Collins and Ashworth Hospital Authority ex parte Brady [2001] 58 BMLR 173 o Or communicate their decision, by any means (s3(1))  Communication by simple muscle movements can show somebody can communicate and may have capacity to make a decision, e.g. blinking or squeezing a hand – Re AK (Adult Patient) (Medical Treatment: Consent) [2001] 1 FLR 129

People with fluctuating/temporary capacity  

Assessment must only examine the capacity to make a particular decision when it needs to be made It may be possible to put off the decision until the person has the capacity to make it

Ongoing conditions affecting capacity 

Generally, capacity assessments should be related to a specific decision, but there may be ongoing conditions that affect ability to make certain decisions/affect other

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decisions in their life – one decision alone may make sense, but may give cause for concern when considered alongside others Capacity should be reviewed whenever a care plan is being developed/reviewed, at relevant stages of care planning process, and as particular decisions need to be made

Other legal tests of capacity  BMA & Law Society, Assessment of Mental Capacity: Guidance for Doctors and Lawyers  Capacity to make a will  Capacity to make a gift  To enter into a contract  To litigate  To enter into marriage When should capacity be assessed  The person’s behaviour or circumstances cause doubt as to whether they have the capacity to make a decision  Someone else is concerned about the person’s capacity, or  The person was previously diagnosed with an impairment/disturbance which affects the way their mind or brain works ‘reasonable belief’ of lack of capacity  Must take reasonable steps to establish. No formal process, but if their assessment is challenged, they must be able to describe the steps they have taken  Reasonable steps depend on circumstances – professionals are expected to undertake a fuller assessment, reflecting higher knowledge and experience, than family members/carers  The assessor should make sure they understand the nature and effect of the decision to be made themselves, may need to access relevant documents and background information o May need other relevant information, such as healthcare records or opinions of staff involved in the person’s care o Family members/friends may be able to provide valuable background information, but their personal views about what they want for the person mustn’t influence the assessment ‘best interests’ o o o o 1

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not defined in the act because it is so subjective can’t be based on someone’s age, appearance, condition or behaviour alone all relevant circumstances should be considered when working out someone’s best interests 2 exceptions where the best interests principle won’t apply: Where someone previously made an advance decision to refuse medical treatment whilst they had capacity to do so – should be respected when they lack capacity, even if others think the decision to refuse isn’t in their best interests The involvement in research of someone lacking capacity to consent

Lasting power of attorney

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Legal document that allows someone authority to act on the other’s behalf The chosen person can make decisions that are as valid as one made by the person LPAs can make decisions surrounding property, affairs, financial matters, personal welfare Only adults over 18 can make an LPA, and only where they have capacity to make one Must be a written document conforming to the regulations, and include information about its nature and effect. Must be signed and include named people, and be accompanied by a certificate by an independent third party confirming that the donor understands the LPA’s purpose, there is no fraud/undue pressure present, and there is nothing to prevent the LPA being created

Court of protection S45 MCA sets up a specialist court to deal with decision-making of adults (and rarely, children) who may lack capacity. It can establish precedent and build up expertise     

Can decide if a person has capacity to make a particular decision for themselves Make declarations/decisions/orders on financial/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 EPA is valid, and Remove deputies/attorneys who fail in their duties Cases involving any of the following decisions should be brought before a court, due to their severity: o Proposed withholding/withdrawal of artificial nutrition and hydration (ANH) from patients in a permanent vegetative state o Organ/bone marrow donation by a person lacking capacity o Proposed non-therapeutic sterilisation of a person lacking capacity, and o All other cases where there is a doubt/dispute about whether a particular treatment will be in a person’s best interests Re Y – found to be in Y’s best interests to donate bone marrow to her sister, because she would continue to receive strong emotional support from her mother, which was in her best interests. It may be diminished if her sister’s health further deterioriated or if she were to die. Airedale NHS Trust v Bland D v An NHS Trust (Medical Treatment: Consent: Termination) [2004] 1 FLR 1110 Re A (medical treatment: male sterilisation) (1999) 53 BMLR 66 – mother applied for declaration that a vasectomy was in the best interests of her son, who had Down’s syndrome and was borderline between significant/severe impairment of intelligence, in the absence of his consent. After balancing burdens and benefits, Court of Appeal held it would not be in his best interests Advance decision  Someone aged 18+ whilst still capable, can make a decision to refuse specified medical treatment in the future when they may lack capacity

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Healthcare professionals exempt from liability if they stop/withhold treatment as they reasonably believe an AD exists, and is valid and applicable, or if they treat a person because they made all practical and appropriate steps to see if there is an AD and don’t know of one, or are not satisfied that a valid and applicable AD exists Healthcare profs will face criminal prosecution or civil liability if they do not follow a valid advance decision An LPA made after an AD will make the AD invalid, if the LPA gives the attorney the authority to make decisions about the same treatment Court of Protection can make declarations over the existence, validity and applicability of an AD but can’t overrule a valid and applicable AD to refuse treatment

Relationship between MCA and MHA 1983 

Professionals may need to use MHA to detain and treat someone who lacks capacity to consent, if o it is not possible to give the person the care they need without doing something that may deprive them of their liberty, o or if the person needs treatment which can’t be given under the MCA (e.g. if they have a valid AD), o or if the person needs to be restrained in a way not allowed under the MCA o or it isn’t possible to assess/treat the person safely/effectively without treatment being compulsory o the person lacks capacity to decide on some elements, but can refuse a vital part of it, and has done so, or o there is some other reason why the person might not get treatment, and they/someone else may suffer harm as a result

compulsory treatment under MHA is not an option if the patient’s mental disorder doesn’t justify detention in hospital or the patient needs only treatment for a physical illness or disability MHA sets out when people with mental disorders can be detained for assessment/treatment in hospital, when people who are detained can be given treatment without their consent, and when people with mental disorders can be made subject to guardianship or aftercare under supervision to protect them or other people S5 MCA legally protects people who care for/treat someone who lacks capacity, but they must follow the Act’s principles and may only take action that is in a person’s best interests. S5 has limits. Someone using restraint only has protection if the restraint is necessary to protect the person who lacks capacity from harm, and in proportion to the likelihood and seriousness of that harm A person can be detained for assessment in hospital under s2 MHA for up to 28 days if they have a disorder serious enough to warrant that, and they need to be detained to protect their health and safety or to protect others A person may be admitted and detained for treatment under s3 if they have a mental illness/severe mental impairment/psychopathic disorder or mental impairment, serious enough to need hospital treatment, and is needed for the person’s health or safety, or for the protection of others, and can’t be provided without detention under this section, and treatment is likely to improve their condition or stop it getting worse...