Document Status: Draft Issue date: Oct 10 Version No: 1 Page 1 of 19 Review date: Oct 13 Once Printed This Document Is No Longer Controlled

We welcome feedback on this guidance and the way it operates. We are interested to know of any possible or actual adverse impact that this policy/procedure may have on any groups in respect

of gender or marital status, race, disability, sexual orientation, religion or belief, age or other

characteristics.

Approved by :

For use in (area) Milton Keynes Community Health Services including Joint Mental Health Services

For use by (staff groups) All qualified health and social care staff in MKCHS. This guidance may also be used by other organisations pending their own ratification processes, e.g. Willen Hospice and MK Council

For use for (patients/staff/public)

All members of public, and all health and social care professionals

Document Owner: Lisa Barton

Document Status: Draft

Document No. Version

Date Approved

Last

Review

Review Date

Equality Impact

Assessed

Author/ Contact Person

1 1

N/A

August 2013

Complete No outstanding actions

Lisa Barton

Advance Decision to Refuse Treatment (ADRT) for patients over the age of 18

Guidance for health and social care professionals This guidance should be read as an addendum to the Mental

Capacity Act – Joint Milton Keynes Policy (2009)

T

ADRT Guidance

2

Policy History

Version Date Author Reason

Version 1

April 2011

Lisa Barton No local ADRT guidance in existence. Provides local interpretation of National ADRT Policy

Version 2

Version 3

Other documents that should be read in conjunction with this guidance:

National ADRT Guidelines - NHS End of Life Care Programme & the National Council for Palliative Care (2008)

Mental Capacity Act (MCA) 2005

Mental Health Act (MHA) (1983)

Mental Capacity Act Policy MKCHS (2009)

Unified Do Not Attempt Cardio Pulmonary Resuscitation Policy, South Central Strategic Health Authority (2010)

Consultation History

Stakeholders Name

Expertise Date Sent

Date Received

Comments Changes Made

Hannah Pugliese Business Development Manager

7th

April 7

th

April provide clarification that this document which should be read as an addendum to the Mental Capacity Act Policy and is a guidance document

Changes made as recommended

Gillian Botha Clinical effectiveness

manager

5th

April 6

th

April very clear and easy to follow guidance. 2 queries In the „scope‟ section you refer to CE‟s – I‟m not

sure what that stands for? In the section on what should be included in an ADRT – is it what should be or what must be included??

CE changed to Chief Exec and

“should” changed to “must”

Jane March Neurological rehab Unit Manager

5th

April 6

th

April I think this is a very useful document for staff and have no comments specifically re the contents

NONE

Steve Caffrey Equipment service

manager

5th

April 7

th

April Overall I think this a valuable set of guidance, several suggestion made regarding format and

layout

All suggestions to layout and format

adhered to

Belinda Taylor Interim IT manager

5th

April 7

th

April Just to confirm that I have reviewed this document and this is a nil return

NONE

Mary Smith Clinical

director for children‟s services

5th

April

6th

April

Nil response

NONE

Ava Rajah Mental Health Act Manager

5th

April 7

th

April I have reviewed the paragraph below from the policy, and rewritten in blue italics

Paragraph changed to recommended

wording

Sally Bloyce Performance

and Policy Officer – MK Council

4th

April

7th

April

A very useful document – I have no requested

amendments

NONE

Steven Rule Health and Safety Manager

4th

April 7

th

April I have completed a review of the document and have no comments to make at this time

NONE

Erika Lamb Child health information and business

manager

4th

April 7

th

April it may be useful to include a reference to this so that Health Professionals are aware that it does or doesn‟t apply; however you may feel it is more

appropriate to leave out and that the Over 18 references cover it

Section regarding ADRT in under 18s added

ADRT Guidance

3

Tracey West Interim facilities

manager

3rd

April 4

th

April Nil comments from Facilities

NONE

Sheila Begley Deputy Director of

Nursing

10th

April 12

th

April Some format changes and suggestion to reference DNACPR policy

All recommended changes made

Matt Elswood Lead

pharmacist for mental health

11th

April

12th

April I have no comments to make NONE

Mark Easter Clinical effectiveness manager

Throughout develo

pment

No comments NONE

Fiona West Specialist children‟s

manager

13th

April I just think this needs clarifying on the front page that it is for us with all members of the public over 18 years of age.

Changes made

LINk Group Public/patient user group

Ongoing

Suggested changes to ADRT template to ensure clarification

All suggested changes made

Guidance Statement and Aim

The purpose of this guidance is to help health and social care professionals understand the process of ADRT, and to implement the new law relating to ADRT, as contained in the MCA 2005, and the MHA 2007. Secondly, this guidance provides a template ADRT document (Appendix 1) for use by patients if appropriate. Scope The target audience for this guidance is all health and social care professionals involved in patient care to equip them to advise patients in developing an ADRT. In the scope there is a description of ADRT, and the clinical protocols and paperwork that would be required to implement this for patients over the age of 18. Not in scope, is specific advice regarding the MCA (2005) and MHA (1983). Nor in scope is guidance around patients under the age of 18 making an ADRT. Any practitioner using this guidance should do so under clinical supervision if any complex issues arise.

ADRT Guidance

4

Roles and responsibilities

Managers Managers have a responsibility to ensure their staff are aware of, and comply with national and local specialist guidance in respect of the management of patients with an existing ADRT, or those patients wishing to make one. Directors To ensure service managers, are aware of the guidance and process All Staff To be aware of guidance and the other documents which should be read in conjunction. All staff have a responsibility when handing over patient information, to ensure that any professional involved in the patient’s care is made aware of the ADRT, whether the transfer is within the Trust, or to an external provider.

ADRT Guidance

5

Contents

Page no

1. Introduction 5

1.1 What is an ADRT? 6

2 Implications for health and social care professionals 6

2.1 Emergency Treatment 7

3. Laws relating to ADRT 7

3.1 ADRT validity 8

3.2 Legal power of attorney 8

3.3 Legal advice 8

4 What must be included in an ADRT 9

5 Benefits of ADRT 9

6 Risks of ADRT 9

7 Who can make an ADRT? 10

8 Capacity to make an ADRT 10

9 Review or withdrawal of an ADRT 11

10 Advance decision to refuse life sustaining treatment 11

Appendix 1 Template for an ADRT 13

Appendix 2 Capacity algorithm 17

Appendix 3 Process for making clinical decisions in serious medical conditions

18

Appendix 4 Useful information/resources 19

1. Introduction

Prior to the development of this guidance there was no local guidance advising health and social care practitioners in the issues relating to Advance Decisions to Refuse Treatment (ADRT). There was also no template document for patients to use to develop their ADRT. This guidance is an adaptation of the National Guidance produced by the NHS End of Life Care Programme and the National Council for Palliative Care (2008)

1.1 What is an ADRT?

ADRT Guidance

6

An ADRT is an Advance Decision to Refuse Treatment.

An ADRT enables someone aged 18 and over, while still capable, to refuse specified medical treatment for a time in the future when they may lack the capacity to consent to or refuse that treatment.

No form of ADRT is legally binding until the age of 18. A child under the age of 18 may document an expression of what they want or don‟t want, (Advance Care Plan), however, it would not be legally binding, as with an ADRT. An ADRT must be valid and applicable to current circumstances. If it is, it has the same effect as a decision that is made by a person with capacity.

Healthcare professionals must follow an ADRT if it is valid and applies to the particular circumstances. If they do not, they could face criminal prosecution (they could be charged for committing a crime) or civil liability (somebody could sue them). ADRT‟s can have serious consequences for the people who make them. They can also have an important impact on family and friends, and professionals involved in their care. 2.0 Implications for health and social care professionals

As professional health care providers we have a duty to maintain high standards of care and service. Healthcare professionals will be protected from liability if they:

- stop or withhold treatment because they reasonably believe that an ADRT exists, and

that it is valid and applicable.

- treat a person because, having taken all practical and appropriate steps to find out if

the person has made an ADRT, they do not know or are not satisfied that a valid and

applicable ADRT exists.

In practice, a qualified health or social care professional may be asked to witness an ADRT. If they have doubts about the person‟s capacity to make an ADRT the professional should refuse to witness it until the person‟s mental capacity has been assessed. A health or social care professional must verify that to the best of their belief, they are not a beneficiary in a persons Will before witnessing.

For a professional to discuss all of the relevant treatment options with a patient, they will require appropriately allocated time. They will also require the expertise to be able to inform the patient about the benefits, burdens and consequences of their decisions. They will require good communication skills and should avoid the use of complex jargon. Health and social care professionals should also take account of the differing needs and beliefs that exist. • Discussions should form part of overall and continuing advance care planning. • All professionals should be open to any discussion instigated by a patient but should be able to recognise if they have reached the limit of their own knowledge and competence, and seek advice where necessary • Before offering advice, the professional should be fully aware of the person‟s medical

ADRT Guidance

7

condition, prognosis and treatment options plus the legislative framework for making an ADRT. 2.1 Emergency Treatment

Health and social care professionals should not delay emergency treatment to look for an ADRT if there is no clear indication that one exists. But if it is clear that a person has made an ADRT that is likely to be relevant, healthcare professionals should assess its validity and applicability as soon as possible. Sometimes the urgency of treatment decisions will make this difficult. If a valid ADRT comes to light and is applicable in the current situation then the treatment which was initially provided in an emergency will have to be withdrawn. 3.0 Laws relating to ADRT

The purpose of these guidelines is to help health and social care professionals understand and implement the law relating to ADRT, as contained in the M C A and the M H A . The MCA came into force in 2007 and is supported by a Code of Practice. Everyone must comply with the requirements of this Act. Please see appendix 3. An ADRT for mental disorder can be over-ruled if someone is subject to compulsory treatment under the MHA 1983 outlined in section 28 of the MCA 2005. Under Part IV of the MHA 1983, a patient can be compulsorily treated even if this is refused in an ADRT. The MCA 2005 does not apply to any treatment being given under Part IV of the MHA 1983. 3.1 ADRT validity An advance decision to refuse treatment is not valid if:

• The patient still has the capacity to make a decision about treatment • The treatment refused is not specified • Any circumstances specified in the ADRT are absent • The present circumstances were not anticipated by the patient when they

made the decision, and would have affected the patient‟s decision if they had known about them when they made the ADRT.

A treatment refused in an apparent ADRT can only be given in two Circumstances, if:-

1. The ADRT is not valid or applicable or does not comply with the Act‟s requirements relating to life sustaining treatment

2. There is doubt whether the ADRT is valid or applicable and the issue is still being resolved.

In cases of disagreement the aim is to inform the process by consideration of all available evidence (this may mean calling on second opinions, discussions with families etc.) In general, cases of disagreement can be resolved by either informal or formal procedures, however serious disagreement may only be resolved by application to the Court of Protection.

ADRT Guidance

8

3.2 Lasting Power of Attorney (LPA)

Where there is an ADRT and a Lasting Power of Attorney (LPA), the most recent order takes precedence as long as it specifically concerns the same treatment.

A LPA is an important legal document that enables a person who has capacity and is

over 18 to choose another person or people (Attorney(s)) to make decisions on their

behalf. There are 2 different types of LPAs:

A property and financial affairs LPA is for decisions about finances, such as selling the

persons house or managing their bank account; and a health and welfare LPA is for

decisions about both health and personal welfare, such as where to live, day-to-day

care or having medical treatment.

3.3 Legal advice

Some people may wish to seek legal advice to improve clarity, but cannot be

guaranteed to do so. It should be remembered that lawyers are not health care

professionals and so may not be able to provide sufficient information about the benefits

and burdens of different treatments or the circumstances in which decisions about them

may arise.

4.0 What must be included in an ADRT?

There are no particular formalities about the format of an ADRT. A template document

is in Appendix 1.

The following information must be provided:

Full details of the person making the ADRT including date of birth, address, and

any distinguishing features (in order to recognise an unconscious patient)

The name and address of the persons GP and whether s/he has a copy of the

ADRT.

The date the document was written (or reviewed).

The person‟s dated signature (or the signature of someone the person has asked

to sign on their behalf and in their presence).

The dated signature of the person witnessing the signature (the witness cannot

be a beneficiary to the persons will).

The document should:

State precisely what treatment is to be refused – a statement giving a general

desire not to be treated is not enough.

ADRT Guidance

9

Set out the circumstances when the refusal should apply – it is helpful to

include as much detail as possible.

5.0 Benefits of an ADRT? A valid and applicable ADRT that complies with all the requirements of the MCA and the MHA is legally binding. This means that the person‟s wishes must be adhered to, as if the patient had capacity. Professionals cannot make the decision to treat them in their best interest, in these circumstances.

Some people may fear future illness and sometimes want to set out some principles to guide their future care. Benefits may be as follows: • Providing the person with better control over their circumstances and so reducing the

chance of potentially distressing situations. • ADRT‟s may be useful in some circumstances, for example when a person

states that specified treatments should be withheld or withdrawn when a particular stage has been reached in the trajectory of a life-threatening condition. (Also known as a “ceiling of treatment”) • By enabling the person to refuse burdensome treatments and express a wish for a natural death. • An ADRT can be made as part of an advance care planning process.

The MCA requires people to specify the treatment they wish to refuse and they may specify the circumstances, if any, in which that treatment is to be refused. It may be difficult to create a sufficiently specific ADRT unless somebody already has a particular condition diagnosed. Once there is a diagnosis, it will be easier to anticipate specific events on the disease pathway which may give rise to a specific treatment decision. It will be possible to refuse a specific treatment in all circumstances. For example, a person may have an allergy or religious objections to particular medications.

6.0 Risks of ADRT’s? There are potential risks to be considered by those who make an ADRT. It is recommended that those who decide to make an ADRT are advised by health and social care professionals of the benefits and the risks that may arise if they do so. People who are healthy and do not have a life threatening diagnosis should exercise caution before making a decision that will bind future medical teams. It is not easy to anticipate or imagine when healthy, how a person might respond to the reality of living with a life threatening condition. ADRT‟s that refuse treatment in a blanket approach applicable in all circumstances may inadvertently disadvantage a person. For example:

ADRT Guidance

10

• An ADRT refusing treatment other than comfort measures after a stroke might prevent good treatment and rehabilitation opportunities, with the result that, rather than dying, the person is left with worsened long term disability.

• A patient with very severe unstable asthma might refuse mechanical ventilation but such refusal might result in survival with hypoxic brain damage rather than death.

• A person with dementia (lacking capacity to make decisions about medical treatment) can be physically reasonably well. This person could have a urinary tract infection which could be treated easily with a short course of antibiotics. If a refusal of antibiotics has been made this might prevent appropriate treatment and lead to distress and unpleasant symptoms.

These are all examples of cases where loss of capacity has arisen in the absence of a life threatening illness with a short prognosis, and when there is a good level of activity and function despite lack of capacity. In such circumstances there is a risk that an ADRT intended to refuse burdensome treatment of irreversible symptoms might also prevent the same treatment being given to reverse treatable symptoms. Taking the example of antibiotics which can be used to treat a urinary tract infection, this is a different clinical picture to the situation where the person with dementia is very ill and wishing that antibiotics not be given for a life threatening pneumonia. This risk can be dealt with by specifying whether antibiotics are to be refused in all circumstances, or whether they are to be refused for a chest infection which might be life threatening, but not a urinary tract infection which can be easily treated. This illustrates the need for great care to be taken in drafting an ADRT to avoid unintended adverse consequences. 7.0 Who can make an ADRT?

The person making the ADRT must be 18 years old or above.

It is up to all individuals whether they want to refuse treatment in advance. They are

entitled to do so if they wish, but there is no obligation to do so. Some people choose to

make ADRT‟s while they are still healthy; others may feel it is part of the process of

growing older. Most people make an ADRT after they have been told they have a

specific disease or condition.

The making of an ADRT is an entirely voluntary process. Nobody should be placed

under any coercion or pressure to make an ADRT.

8.0 Capacity to make an ADRT

People can only make an ADRT under the Act if they are 18 or over and have the

capacity to make the decision. They must say what treatment they want to refuse, and

they can cancel their decision – or part of it – at any time.

To establish whether an ADRT is valid and applicable, healthcare professionals

must try to find out if the person:

- has done or said anything that clearly goes against their ADRT

ADRT Guidance

11

- 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.

9.0 Review or withdrawal of an ADRT

Review of an ADRT can be done at any time by the person whilst they have mental capacity. Review can be done in any form, by amendment, or addition both verbally or in writing. If an ADRT is cancelled all copies should be destroyed or clearly marked cancelled. If a review is verbal it should be recorded in the person‟s patient notes. If following a review someone wishes to include the addition of a decision to refuse life sustaining treatment it must be in writing, signed and witnessed. It would be good practice to review any advance decision as part of an overall view of the person‟s advance care planning, if they are agreeable. Anyone who has made an ADRT is advised to regularly review and update it as

necessary, and should reflect changes in condition or deterioration.

Decisions made a long time in advance are not automatically invalid or inapplicable, but

they may raise doubts when deciding whether they are valid and applicable. Best

practice would therefore, have the ADRT reviewed regularly to ensure it is valid and

applicable to current circumstances – particularly for progressive disease. However,

there are no national guidelines for how often the ADRT should be reviewed.

10. An Advance Decision to Refuse Life Sustaining Treatment

An advance decision to refuse life sustaining treatment is very different to an

ADRT.

Life sustaining treatment is treatment which a healthcare professional who is providing care to the person regards as necessary to sustain life. This decision will not just depend on the type of treatment. It will also depend on the circumstances in which the healthcare professional is giving it. For example, in some situations antibiotics may be life sustaining, but in others they can be used to treat conditions that do not threaten life. Artificial nutrition and hydration (ANH) has been recognised as a form of medical treatment. ANH involves using tubes to provide nutrition and fluids to someone who cannot take them by mouth. It bypasses the natural mechanisms that control hunger and thirst and requires clinical monitoring. An ADRT can refuse ANH. Refusing ANH in an advance decision is likely to result in the person‟s death, if the advance decision is followed. It is very important for patients to discuss advance decisions to refuse life-sustaining treatment with a healthcare professional, but it is not compulsory. A healthcare professional should be able to explain:

ADRT Guidance

12

what types of treatment may be life-sustaining treatment, and in what circumstances, and

the implications and consequences of refusing such treatment. An ADRT cannot refuse actions that are needed to keep a person comfortable (sometimes called basic or essential care). Examples include warmth, shelter, actions to keep a person clean and the offer of food and water by mouth. Section 5 of the MCA Act allows healthcare professionals to carry out these actions in the best interests of a person who lacks capacity to consent. It could be considered that drug measures to ensure comfort do constitute basic care but some may see these as treatments which have both benefits and possible harmful effects. In very specific circumstances it might be possible to refuse drug measures for comfort, but those writing such an advance decision will need to be very clearly aware that doing so may leave them with enhanced suffering at the time they are dying. In such circumstances the validity and applicability of the advance decision would require stringent scrutiny. Deciding whether a treatment is “life sustaining” depends on the circumstances of intervention. The MCA states that “life sustaining treatment” is any treatment that health professionals treating the person consider necessary to sustain life. For example, antibiotics can be life sustaining in treatable pneumonia or can be a comfort measure for terminally ill patients with purulent sputum. There are very specific legal requirements that must be met before an advance decision

to refuse life-sustaining treatment is legally binding.

An advance decision to refuse life sustaining treatment must:

Be in writing

Be signed by the patient and a witness, (the witness cannot be a beneficiary to

the persons Will).

Include the statement that the treatment is refused “even if my life is at risk”

Cannot override comfort measures such as warmth, shelter and basic care such

as hygiene and offers of food and water by mouth.

People can use medical language or everyday language in their ADRT. However, they

must make it clear what their wishes are and what treatment they would like to refuse.

ADRT Guidance

13

It is the individual’s responsibility to share the details of this document with all parties involved.

My Advance Decision to Refuse Treatment

This ADRT has been written by me to specify in advance which treatments I don‟t want in the future. These are my decisions about my healthcare, in the event that I have lost mental capacity and cannot consent to or refuse treatment. This ADRT replaces any previous ADRT I may have made. Advice to the reader I have written this document to identify my ADRT. I would expect any health care professionals reading this document in the event I have lost capacity to check that my ADRT is valid and applicable, in the circumstances that exist at the time.

Please do not assume I have lost capacity before any actions are taken. I might need help and time to communicate. If I have lost capacity, please check the validity and applicability of this ADRT. This ADRT becomes legally binding and must be followed if professionals are satisfied it is valid and applicable. Please help to share this information with people who are involved in my treatment and care, and need to know about this. Please also check if I have made any other statements about my preferences or decisions that might be relevant to my advance decision. This ADRT does not refuse the offer and or provision of basic care, support and comfort. Date: Name of person making ADRT Signature of person making ADRT Witness name Witness signature

My name

Any distinguishing features in the event of unconsciousness (Photograph optional)

Address

Date of birth

Telephone number

ADRT Guidance

14

Date: Name of person making ADRT Signature of person making ADRT Witness name Witness signature

I wish to refuse the following specific treatments:

In these circumstances:

ADRT Guidance

15

My Name (or nominated person) My Signature (or nominated person)

Date of signature

Witness Witness signature

Name Telephone

Home Address Date

Person to be contacted to discuss my wishes:

Name

Relationship

Home Address

Telephone

I have discussed this with (e.g. name of health care professional)

Profession/Job title Date Contact details

I give permission for this document to be discussed with my relatives/carers YES NO

My General Practitioner is: Address: Telephone:

Optional review Date Makers signature Date Witness signature Date

The following list identifies which people have a copy and have been told about this ADRT (and their contact details)

Name Relationship Telephone number

ADRT Guidance

16

Date: Name of person making ADRT Signature of person making ADRT Witness name Witness signature

Further information (optional) I have written the following information that is important to me. It describes my hopes, fears and expectations of life and any potential health and social care problems. It does not directly affect my advance decision to refuse treatment but the reader might find it useful.

ADRT Guidance

17

ADVANCED DECISIONS TO REFUSE TREATMENT (ADRT)

Does this person have capacity to give consent to or refuse treatment, with appropriate support?

YES: The person has capacity to make the decision so an ADRT is not applicable.

No: Continue with checklist

Is the ADRT valid? Has the person withdrawn the advance decision?

YES: This is not a valid ADRT. Ensure documentation of withdrawal

No: Continue with checklist

Are there reasonable grounds for believing that circumstances exist which the person did not anticipate at the time of making the ADRT which would have affected her decision had the person

anticipated them? No: Continue with checklist

Has the person done anything that is clearly inconsistent with the ADRT remaining the persons fixed decision?

Since making the ADRT, has the person created a Lasting Power of Attorney, giving anyone else the authority to refuse or consent to treatment?

YES: This is not a valid ADRT. The donee of the LPA must give consent to or refuse treatment.

No: Continue with checklist

YES: If such reasonable grounds exist, this will not be an applicable ADRT. It is important to identify the grounds, discuss

this with anybody close to the person, and identify why this

would have affected the decision had the person anticipated them.

No: Continue with checklist

Is the ADRT Applicable?

YES: Continue with the checklist. No: This is not an applicable ADRT

If the ADRT has specified circumstances in which it is to apply, do all of those circumstances exist at the time that the ADRT needs to be made?

YES: Continue with checklist. No: This is not an applicable ADRT

Life Sustaining Treatment

Is the decision both valid and applicable according to the criteria set out above.

YES: Continue with checklist. No: This is not a binding ADRT to refuse the specified life sustaining treatment.

Does the ADRT contain a statement that it is to apply even if the person’s life is at risk?

YES: Continue with checklist. No: This is not a binding ADRT to refuse the specified life sustaining treatment.

Is the ADRT, In writing AND Signed by the person making it or by someone else on the persons behalf and at

this direction AND Signed by a Witness?

YES: This is a binding ADRT to refuse the specified life sustaining treatment. It must be respected & followed.

No: This is not a binding ADRT to refuse the specified life sustaining treatment.

YES: If such reasonable grounds exist, this will not be an applicable ADRT. It is important to identify the grounds,

discuss this with anybody close to the person, and identify

why this would have affected the decision had the person anticipated them.

ADRT Guidance

18

Process for making clinical decisions in serious medical conditions Mental Capacity Act - Two Stage Test: Stage 1 – Does the person have an impairment of, or disturbance in the functioning of their mind or brain? Stage 2 – Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to? Their capacity for this decision can be assessed by four functional tests:

1. Can they understand the information given? 2. Can they retain the information given? 3. Can they use or weigh up that information? 4. Can they communicate their decision?

The results of each step of this assessment should be documented, ideally by quoting the patient.

Useful Information Capacity • Is assumed to be present, unless the two stage test shows otherwise

• Is assessed by applying the two stage test (see algorithm)

• The ability to make a decision is assessed by four functional tests (see algorithm)

• Depends on the decision being made, e.g. a patient may have capacity for simpler decisions, but not complex issues.

• Can change with time and needs to be monitored

Communication • Carers have to take all practicable steps to help a patient understand the information and

communicate their decision

• Professionals should take all practicable steps to include the patient in the decision

Liability The MCA does not have any impact on a professional‟s liability should something go wrong, but a professional will not be liable for an adverse treatment effect if:

• Reasonable steps were taken to establish capacity

• There was a reasonable belief that the patient lacked capacity

• The decision was made in the patient‟s best interests

• The treatment was one to which the patient would have given consent if they had capacity

Personal Welfare Lasting Power of Attorney (LPA) • Replaces the previous Enduring Power of Attorney

• Must be chosen while the patient has capacity, but can only act when the patient lacks capacity to make the required decision

• Must act according to the principles of best interests (see algorithm)

• Can be extended to life-sustaining treatment decisions (Personal Welfare LPA including health), but

this must be expressly contained in the original application

• Only supersedes an advance decision if the LPA was appointed after the advance decisions, and if the

conditions of the LPA cover the same treatment as in the ADRT NB. Holders of LPA for Property and Affairs have no authority to make health and welfare decisions

ADRT Guidance

19

Court Appointed Welfare Deputies (CADs) • May be appointed by the Court of Protection, where a regular decision making power is necessary.

• Are helpful when a patient‟s best interests require a deputy consulting with everyone

• Can make decisions on the patient‟s behalf, but cannot refuse or consent to

life-sustaining treatments.

• Is subject to the principles of best interests

Independent Mental Capacity Advocates (IMCAs) • Are part of a new statutory consultation service

• Must be involved in specific circumstances when a patient without capacity has no relative or partner

who can be consulted

• Are advocates for the patient and not decision makers, so they cannot refuse or consent to life sustaining treatments.

• Can be bypassed if an urgent clinical decision is needed Resources • Any professional making decisions on behalf of a person without capacity is required by law to have

regard to the Mental Capacity Act Code of Practice:

www.publicguardian.gov.uk/docs/code-of-practice-041007.pdf

• Office of Public Guardian:

www.publicguardian.gov.uk

• Court of Protection:

www.publicguardian.gov.uk/about/court-of-protection.htm

• IMCA service:

www.dca.gov.uk/legal-policy/mental-capacity/mibooklets/booklet06.pdf

• ADRT training programme:

www.adrtnhs.co.uk

End of Life Care Programme Tools

Gold Standards Framework

www.goldstandardsframework.nhs.uk

Preferred Priorities for Care

www.endoflifecareforadults.nhs.uk

Liverpool Care Pathway

www.mcpcil.org.uk