mental capacity act-advance decision to refuse treatment

Version 1.0 June 2018

Mental Capacity Act-Advance Decision To Refuse Treatment

&Advance Statement

Target Audience

Who Should Read This Policy

All Trust Employed Staff

Bank and Agency Staff

Advance Decision To Refuse Treatment Advance Statement Policy

Version 1.0 June 2018 2

Ref. Contents Page

1.0 Introduction 5

2.0 Purpose 5

3.0 Objectives 5

4.0 Process 6

5.0 Procedures connected to this Policy 19

6.0 Links to Relevant Legislation 19

6.1 Links to Relevant National Standards 19

6.2 Links to other Key Policies 19

6.3 References 19

7.0 Roles and Responsibilities for this Policy 21

8.0 Training 22

9.0 Equality Impact Assessment 22

10.0 Data Protection and Freedom of Information 22

11.0 Monitoring this Policy is Working in Practice 23

Appendices



Explanation of terms used in this policy Attorney- Someone appointed under the Lasting Power of Attorney who has the legal right to make

decisions within the scope of their authority on behalf of the person who made the Power of Attorney.

LPA – Lasting Power of Attorney - Lasting power of Attorney created under the Act (see section 9

(1) ) appointing an attorney (or attorneys) to make decisions about the donor’s personal welfare (including healthcare) and /or deal with the donor’s property and affairs.

Donor - A person who makes a lasting Power of Attorney or Prior to the Act Enduring Power of

Attorney.

Enduring Power of Attorney - A power of Attorney created the ~Enduring Powers of Attorney Act

1985 appointed an attorney to deal with the donor’s property and financial affairs. Existing EPS will continue to operate under Schedule 4 of the Act, which replaces the EPA Act 1985.

Independent Mental Capacity Advocate (IMCA) - Someone who provides support and

representation for a person who lacks capacity to make specific decisions, where the person has no –

one else to support them. The IMCA service is established under section 35 of the Act and the functions of IMCAs are set out in section 36. It is not the same as an ordinary Advocate.

Advance Statements - Is a non-legally binding document which may identify a person’s views and

preferences on a large range of medical and other issues? Under s.4 (6) (a), MCA 2005 such a

statement would need to be taken into account when decisions are made and subsequent to the patients mental incapacity.

Personal Welfare - Personal welfare decisions are any decisions about a person’s welfare, where

they live, what clothes to wear, what they eat and anything needed for their general wellbeing. Attorneys and deputies can be appointed to make welfare decisions about personal welfare on behalf

of a person who lacks capacity. Many acts care to do with personal welfare.

Written statements of wishes and feelings - Written statements the person might have made

before losing capacity about their wishes and feelings issues such as the type of medical treatment they would want in the case of future illness, where they would prefer to live or how they would

prefer to be cared for. They should be used to help find out what someone’s wishes and feelings

might be, as part of working out their best interests. They are not the same as Advance Decisions to refuse and are not binding.

Advance Decisions to refuse treatment - A decision to refuse specified treatment made in

advance by a person who capacity to do so. The decision will then apply at a future time when that person lacks capacity to consent to, or refuse, the specified treatment. This is set out in Section 24

(1) of the Act. Specific rules apply to Advance Decisions to refuse life sustaining treatment,

IMCA) Independent Mental Capacity Advocate – Someone who provides support and representation

for a person who lacks capacity to make specific decisions, where the person has no-one else to support them. The IMCA service is established under section 35 of the Act and the functions of IMCAs

are set out in section 36. It is not the same as an ordinary advocacy service.

Advance directive - Made before the comment of the mental capacity Act 2005 will take effect as an

Advance decision if it complies with the relevant provisions of the Act.

ADRT – Advance decision to refuse treatment.

Conscientious objection - Article 9 of the European Convention on Human Rights provides a

right to freedom of thought, conscience and religion. This includes the freedom to change a religion or belief, and to manifest a religion or belief in worship, teaching, practice and observance, subject to

certain restrictions that are "in accordance with law" and "necessary in a democratic society"

Best Interests – Any decisions made, or anything done for a person who lacks capacity to make

specific decisions, must be in the person’s best interests. There are a standard minimum steps to

https://en.wikipedia.org/wiki/European_Convention_on_Human_Rights

https://en.wikipedia.org/wiki/Freedom_of_thought

https://en.wikipedia.org/wiki/Freedom_of_religion



follow when working out someone’s best interests. These are set out in section 4 of the Act, and in

the non-exhaustive checklist in 5.13 Mental Capacity Act 2005 Code of Practice.

Capacity - The ability to make a decision about a particular matter at the time the decision needs to

be made. The legal definition of a person who lacks capacity is set out in section 2 of the Act.

Life-sustaining treatment - Treatment that, in the view of the person providing healthcare, is necessary to keep a person alive. See Section 4(10) of the Act.

Court Appointed Deputy - In certain situations where an individual does not have a Lasting Power of Attorney (LPA) but a series of decisions needs to be made the Court of Protection

may appoint a deputy who will then take on the same functions as an attorney either for a specified period or indefinitely.

Court of Protection - The Court of Protection can make a decision where there is genuine doubt or

disagreement about an ADRT’s existence, validity or applicability. But the court does not have the

power to overturn a valid and applicable ADRT. The court has a range of powers to resolve disputes concerning the personal care and medical treatment of a person who lacks capacity. It can decide

whether: A patient has capacity to accept or refuse treatment at that time it is proposed

An ADRT is valid

An ADRT is applicable to the proposed treatment in the current circumstances.

While the court decides healthcare professionals can provide life-sustaining treatment or treatment to

stop a serious deterioration in their condition. The court has emergency procedures which operate 24

hours a day to deal with urgent cases quickly.



1.0 Introduction

The Mental Capacity Act 2005 (MCA) provides the legal framework to empower and

protect people over the age of 16 who may lack capacity to make some decisions for

them. The MCA 2005 provides for certain ways that an individual may influence what

happens to them should they ever be unable to make a particular decision in the

future. For individuals over the age of 18, one of these is to be able to make an

Advance Decision to refuse medical treatment (ADRT) setting out their wishes and

feelings in respect to treatment. According to the House of Lords Select Committee;

“Advance Decisions to refuse treatment are essential means of allowing individuals

to determine their care in the event that they lose capacity. As with other aspects of

the Act, the general public cannot benefit from this opportunity if they are not made

aware of it”. (para.199). As such Black Country Partnership Foundation Trust are

committed to ensure the Mental Capacity Act 2005 is embedded across the Trust,

with that the awareness of Advance Decisions is key to help promote individual with

the principle to take an active role in planning their care and treatment.

Communication is the key to the provision of safe and effective care and is essential

to all aspects of this policy.

2.0 Purpose The purpose of this document is provide guidance to staff when working with and / or

caring for people who may wish to make, or who have already made, and Advance

Decision for Advance Statement. As the legal Status of Advance Decisions and

Advance statements are different it is essential that staffs are clear about the

difference between the two. Also that staff are converse with the terminology

sufficient to know, what Advance statements and Advance Decisions are, how to

action them, how to ask for them, and generally what to do in a confident manner.

They should also know where and how to seek further clarification and further

guidance.

3.0 Objectives

This policy relates to all staff working with or providing care and treatment to any

person who may wish to make, or has already made, and Advance decision or

Advance Statement. It applies to mental health and learning disabilities, including

other services provided by the Trust. All staff should become familiar with the

procedures detailed within this policy. They must pay attention to and have due

regard to the Mental Capacity Act 2005. The Mental Capacity Act Code of Practice,

and apply the guiding principles when carrying out their work. Ensure they keep up

to date with MCA practice commensurate with their role.



4.0 Process

.

Does the Patient have an

Advance decision/statement

in place?

Advanced decision/statement flag to be added/ (DNACPR) decision.

Recorded in admission notes/copy kept on file.

Contact GP is unable to attain a copy.

Speak with relatives/carers about any advance decision/statements.

All staff to be aware that (VALID) Advance DECISION is legally binding.

All staff to be aware of difference between Advance decision and advance statement.

All Out of Hours/Duty Doctors are to be alerted to the Advance Decision.

If the patient is transferred / discharged ensures the information is disseminated accordingly.

Ensure this is discussed as part of Treatment plan and in Multi-disciplinary meetings.

Review this with the patient regularly and document this.

If it is withdrawn ensure FLAG on oasis is taken off system.

Any concerns with the validity of the Advance decision, staff are directed to speak with:

Responsible Clinician.

Multi-disciplinary team.

Safeguarding Mental Capacity Act Lead/ and or Safeguarding.

Who in turn will liaise with the Trust Solicitor for legal advice on complex

situations

Medical Clinicians are guided by the:

General Medical Council.

BMA - https://www.bma.org.uk/-

/media/files/pdfs/practical%20advice%20at%20work/ethics/advancestateme

nts2007.pdf.

Medical Director.

YES

NO

If patient lacks capacity,

decision should be made in

best interests. As described

in the MCA or the MHA.

See MCA BCPFT policy.

DON’T KNOW

Efforts should be made to locate any advance

decision/statement. However emergency

treatment must not be delayed in order to look

for an advance decision, if there is not clear

indication that one exists or its validity and/or

applicability.



What is an Advance Decision to Refuse Treatment?

An advance decision enables someone who is 18 and over, while still capable to

refuse specified medical treatment for a time in the future when they lack the capacity

to consent to or refuse that treatment.

An advance decision to refuse treatment 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 the decision.

Health care professionals will be protected from liability if they:

- Stop or withhold treatment because they reasonably believe that an advance

decision to treatment, they do not know or are not satisfied that a valid and

applicable advance decision exists.1

People may have heard of these as “living will”, Advance statement or Advance

directive”. These terms are now redundant: the Mental Capacity Act 2005 now refers

exclusively to an “Advance Decision to refuse treatment” (ADRT) to encompass

refusal of treatments in a planned way both in life and non-life threatening situations.

This includes do not attempt cardiopulmonary resuscitation (DNCACPR) once

this decision is in place it is again put in the health care records and flagged as

an advanced decision. It is prudent to remind patients to discuss this with their

families, as it may cause distress and should not come as a surprise to them. A

DNACPR is not permanent and it can be removed, and this should be revisited with

patients regularly and documented that this discussion has taken place.

In other words it is a general principle in law and medical practice that people have a

right to consent to or refuse treatment. The courts have recognised that they want to

refuse treatment if they lose capacity in the future- even if this results in their death.

A valid and applicable decision to refuse treatment has the same force as a

contemporaneous decision. This has been a fundamental principle of common law

for many years and it now set out in the Act. Section 24-26 of the Act set out the

when a person can make an advance decision to refuse treatment, this applies if:

- The person is 18 or older, and

- They have the capacity to make an advance decision about treatment.

Health care professionals must follow a decision if it 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).

11

Mental Capacity Act 2005 Code of Practice,



Advance Decisions can have serious consequences for people who make them.

They can also have an important impact on family and friends, and professionals

involved in their care. Before healthcare professionals can apply an advance

decision, there must be proof that the decision:

Exists

Is valid, and

Is applicable in the current circumstances.

(These tests are legal requirement under section 25 (1) of the Care Act Validity and

applicability of Advance Decisions. And section 25 (2) of the Care Act an advance

decision is not valid. )

The Mental Capacity Act Code of Practice 2005, page 169 paragraphs 9.38 -9.44.

How can somebody decide on the existence, validity and applicability of

Advance Decisions?

9.38 of the Mental Capacity Act 2005 code of practice pg. 169, states:

It is the responsibility of the person making the advance decision to make sure their

decision will be drawn to the attention of the health care professionals when it is

needed. Some people will want their decision in their health care records. Those

who do not will need to find other ways of alerting people that they have made and

advance decision and where somebody will find any written document and

supporting evidence. Some people carry a card or wear a bracelet. It is useful to

share this information with family and friends, who may alert healthcare professionals

to the existence of an advance decision. But this is not compulsory. Providing their

GP with this information will mean it is contained on their records.

9.39 of the Mental Capacity Act 2005 Code of practice, pg. 169 states that;

It is important to be able to establish that the person making the advance decision

was 18 or over when they made the decision, and that they had the capacity to make

that decision and that they had the capacity to make that decision when they made it,

in line with the two stage test for capacity. Practitioners should always start with

assumption that someone has the capacity.

People can only make Advance Decisions to refuse treatment. Nobody has the legal

right to demand specific treatment, either at the time or in the future.



Format for Advance Decisions.

There are no particular formalities about the format of an advance decision. It can be

in writing or verbal, unless it deals with life sustaining treatment, in which case it must

be written and specific rules apply. The Act imposes particular requirements and

safeguards on the making of Advance Decisions to refuse life sustaining treatment

and must meet specific requirements.

It must be in writing. If unable to write, someone can write it for them.

The person must sign the document. If they cannot they can ask someone to sign it on their behalf in their presence.

The person’s signature, or the signature of the person signing on their behalf, must be witnessed. The witness must also sign the document in the person’s presence.

The person must include a written statement that the advance decision is to apply to the specific treatment ‘even if life is at risk as a result’

The Advance Decisions must be clear, specific and written statement from the person making the advance decision is to apply to the specific treatment even if life is at risk (DNACPR) If this statement is made at a different time or in a separate document to the advance decision, the person making the advance (or someone they have directed to sign) must sign it in the presence of a witness, who must also sign it.



An Advance decision cannot refuse things such as to make a person comfortable, sometimes referred to as basic care. Example of such could be

warmth,

shelter,

actions to keep a person clean, and

The offer of food and water by mouth.

Section 5 of the Mental Capacity Act 2005 allows healthcare professionals to carry out these actions in the best interest of a person who lacks capacity to consent. Written and verbal decisions. A written document can be evidence of an Advance Decision. There is no set format for written decision; this is because content can vary from person to person, wishes and situation. However the following should be considered as important.

Full details of the person making the advance decision, including date of birth, home address and any disguising features (in case a health care professional has to identify an unconscious person)

Name address of the GP and if they have a copy.

A statement that the document should be used if the person losing capacity.

The date and time document written (or reviewed)

Signature or the 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 (or statement directing somebody to sign on the person’s behalf).

Witnessing the person’s signature is not essential, except in cases where the person is making an advance decision to refuse life –sustaining treatment. But if there is a witness they are witnessing the signature and the fact that it confirms the wished set out in the advance decision. It may be helpful to give a description of the relationship between the witness and the person making the advance decision. The role of the witness is to witness the person’s signature, it is not to certify that the person had the capacity to make the advance decision – even if the witness is a healthcare professional or knows the person.

It is possible that a professional acting as a witness will also be the person who assesses the person’s capacity. If so the professional should also make a record of the assessment, because acting as a witness does not prove that there has been an assessment.



Verbal decisions There is no set format for verbal decisions. This is because they will as above vary on the person’s wishes and the situation. With regard to oral decisions made to a member of the patient’s health care team, The Code of Practice suggests, at para 9.23 that the following be included in the patients’ medical notes:

“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 decisions will apply.

Details someone who was present when the oral advance decision was recorded and the role in which they were present (for example healthcare professional or family member), and

Whether they heard the decision, took part in it, or are just aware that it exists.”

If healthcare professionals are alerted to the possibility that a patient might have an advance decision, reasonable efforts, such as contacting relatives of the patient and the patients GP should be made to establish whether an advance decision has been made if the delay would be prejudice the patients’ health. When should someone review or update an advance decision? It is advisable to review Advance Decisions regularly and update if necessary. Decisions made a long time ago are not automatically invalid or inapplicable. How can someone withdraw an advance decision? Section 24 (3) allows people to cancel or alter an advance decision at any time while they still have capacity to do so. It can be cancelled verbally or in writing. Lasting Power of Attorneys an Advance Decisions

An advance decision overrules the decision of any Personal Welfare Lasting Power of attorney (LPA) made before the advance decision was made. So an attorney cannot give consent to treatment that has been refused in an advance decision was made after a LPA was signed.

The decision of any court appointed deputy (so a deputy cannot give consent to treatment that has been refused in an advance decision which is valid and applicable)

The provisions of section 5 of the Act, which would otherwise allow healthcare professionals to give treatment that they believe is in a person’s best interests.



Advance decision regarding treatment for mental disorder An advance decision can be made to refuse mental and physical health treatments. However an advance decision to refuse treatment for mental disorder can be overruled if the person is detained in hospital under the Mental Health Act 1983, when treatment could be given compulsorily under Part 4 of the Act. Advance Decisions to refuse treatment for other illnesses or conditions are not affected by the fact the person is under the Mental Health Act. Is this Advance decision Applicable? Firstly health care professionals have to decide if the person has the capacity to make decisions in the current circumstances and the presumption of capacity principle is used. For obvious reasons is the person is found to have capacity the Advance decision does not apply here. The advance decision MUST apply to the proposed treatment, If it is not applicable to the treatment in question (section 25 (4) of the Mental Capacity Act 2005:

That treatment is not the treatment specified in the advance decision,

Any circumstances specified in the advance decision are absent or,

There are reasonable grounds for believing that circumstances exist which the person did not anticipate at the time of the advance decision and which would have affected their decision had they anticipated them/

So when deciding if this Advance decision is applicable healthcare professionals must consider:

How long ago the advance decision was made.

Whether there have been changes in the person and personal life (for example the person is pregnant, and this was not anticipated when the advance decision was made) that might affect the validity of the Advance Decisions and

Whether there have been medical developments in treatment that the person did not foresee (for example new medications, treatment or therapies).



For an Advance Decisions to apply to safe sustaining treatment the Mental Capacity Act 2005. Sets out particular legal requirements and safeguards. There Advance Decisions to refuse life sustaining treatment must meet specific requirements.

Must be in writing. (Please see guidelines above for writing of Advance Decisions). A family member can write it down on their behalf, or a healthcare professional can record it in the person’s notes. (See guidance on verbal instructions) for healthcare professionals.

The advance decision must be clear, specific written statement form the person making the advance decision that he advances decision is to apply to the specific treatment even if life is at risk.

The person must sign the advance decision, if they are unable to sign, they can direct someone to sign in their presence.

The person making the decision must sign in the presence of a witness to the signature. The witness must also sign the document in the presence of the person making the advance decision. If the person making the advance decision is unable to sign, the witness can witness them directing someone else to sign on their behalf and this witness must indicate that they have witness the nominated person to sign the advance decision document in front of the person making the advance decision,

If this statement is made under a different time or in a spate document to the advance decision, the person making the advance decision (or someone they have directed to sign) must sign it in the presence of a witness who must also sign.

Section 4 (10) of the Mental Capacity Act 2005 states that life sustaining treatment means treatment which in the view of the person providing the healthcare for the person concerned is 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 professionals are giving it. For example, in some situations antibiotics may be life sustaining, but in others they be used to treat conditions that do not threaten life. Artificial nutrition and hydration (ANH) has been recognised as a form of medical treatment.



What implication does advance decision have for healthcare professionals? Healthcare professional should be aware that:

A patient they propose to treat may have refused treatment in advance, and

Valid and applicable Advance Decisions to refuse treatment have same legal status as decisions made by people with capacity at the time of treatment.

Health care professionals are discussing treatment options; they should also ask if there is any treatments they do not wish to have, if they ever lack capacity. Should a person tell a healthcare professional that an advance decision exists for a patient who now lacks capacity to consent? They should make reasonable efforts, (law always discusses reasonable) this might include discussions with relatives, contacting the GP Once they know a verbal or written advance decision exists, healthcare professionals must determine whether:

It is valid

It is applicable to the proposed treatment. According to the Advance Decision Part 1 Mental Capacity Act S (25) An advance decision is not valid if P— (A) Has withdrawn the decision at a time when he had capacity to do so, (b) has, under a lasting power of attorney created after the advance decision was made, conferred authority on the donee (or, if more than one, any of them) to give or refuse consent to the treatment to which the advance decision relates, or (c) Has done anything else clearly inconsistent with the advance decision remaining his fixed decision. (3) An advance decision is not applicable to the treatment in question if at the material time P has capacity to give or refuse consent to it. (4) An advance decision is not applicable to the treatment in question if—

(a) that treatment is not the treatment specified in the advance decision, (b) Any circumstances specified in the advance decision are absent, or (c) There are reasonable grounds for believing that circumstances exists which P did not anticipate at the time of the advance decision and which would have affected his decision had he anticipated the Mental Capacity Act 2005. S (25)



When establishing whether an advance decision applies to current circumstances, healthcare professionals should take special care if the decision does not seem to have reviewed or updated for some time. If the person’s current circumstances are significantly different from those when the decision was made, the advance decision may not be applicable. If the health care professionals are satisfied that an advance decision to refuse treatment exists, it is valid and applicable, they must follow it and not provide the refused treatment in the advance decision. If healthcare professionals are NOT satisfied that an advance decision exists that is both valid and applicable, they can treat the person without fear of liability. But treatment must be in the person’s ‘best interest’. They should make clear notes explaining why they have not followed and advance decision which they consider to be invalid or not applicable. Sometimes health care professionals can give or continue treatment whilst they resolve doubts over an advance decision. The Court of Protection can settle disagreements about the existence, validity or applicability of Advance Decisions. Section 26 of the Mental Capacity Act (2005) allows health care professionals to give necessary treatment, including life-sustaining treatment, to stop a person’s condition getting seriously worse while the court decides. Guidelines on this can be found at this link: https://www.scie.org.uk/publications/guides/guide42/ Do Advance Decisions apply in emergencies? A healthcare professional must provide treatment in the patient’s best interest, unless they are satisfied that there is an advance decision that is:

Valid and applicable

Applicable in the circumstances Health care professionals should never delay in treating a person, if there is no indication of an advance decision. Healthcare professionals should if they know to have an advance decision quickly assess if this is relevant to the circumstances. However it is acknowledged that in emergencies it is difficult and patient’s notes should reflect the situation.



Liability? Failure to comply with a valid and applicable advanced decision could lead to a claim for ‘damages for battery or a criminal charge of assault’. Protection from Liability

If they were not aware of an advance decision.

Or they were satisfied that It exist and is valid and applicable to the treatment and circumstances. See Section 26 (2) of the Mental Capacity Act (2005). Documentation in the notes should make clear reference to the above. Healthcare professionals are protected from liability for failing to provide treatment they ‘reasonably believe’ that a Valid and applicable advance decision exists. In law there is always the test of ‘reasonableness’ and healthcare professionals are protected from liability if they have acted and documented clearly, with demonstration that they had ‘reasonable belief’ that a valid and applicable Advance Decision exists. In accordance with Section 26 (3) of the Mental Capacity Act (2005).

Conscientious Objection, What does this mean? Some healthcare professionals may disagree in principle with patients’ rights to refuse life sustaining treatment. They do not have to do something against their beliefs. However they must not abandon the patient or cause their care to suffer. If the patient still holds capacity then their care can be transferred to another healthcare professional. In the case where the patient lacks capacity, and the healthcare professional is objecting for conscientious reasons, the care of the patient should be transferred without delay to any other suitably qualified healthcare professional. If a transfer cannot proceed then the Court of Protection can direct those reasonable for their care. See section 17 (1) (e)) of the Mental Capacity Act (2005). Disagreements. When disagreement occurs between healthcare professionals or family, the aim is to not to try and overrule the advance decision but to seek evidence concerning its validity and to confirm its scope. All details should be documented in the patient’s notes, and inform the Safeguarding Team of such discussions. It is ultimately the responsibility of the senior consultant in charge of the person’s care, to decide if the advance decision is valid/applicable. Where the senior consultant believes the advanced decision is valid and applicable then the person advance decision must be complied with.



Court of Protection This avenue would be used is there is genuine doubt or disagreement about advance decision existence, validity and applicability. It is important to note that the Court of Protection does not have the power to overturn a valid and applicable advance decision. While the Court decides, health care professionals are able to continue to provide life sustaining treatment or to stop deterioration in their condition. As indicated in the Court of Protection guidance link, the Court of Protection is open 24 hours of day. https://www.gov.uk/courts-tribunals/court-of-protection.

Contact COP

Court of Protection

Court of Protection

PO Box 70185

First Avenue House

42-49 High Holborn

London

WC1A 9JA

Email [email protected]

Enquiries 0300 456 4600

DX: 160013 Kingsway 7

Opening hours and facilities:

https://courttribunalfinder.service.gov.uk/courts/court-of-protection

mailto:[email protected]

https://courttribunalfinder.service.gov.uk/courts/court-of-protection



Advance Statements The difference between Advance Decisions and Advance statement is demonstrated in the box below:

An Advance Decision; An Advance Statement;

Is a written document or

spoken statement that sets out

a person’s refusals of treatment.

Is legally binding as long as the

person follows the procedures

in the Mental Capacity Act

and could be enforced in a

court if necessary.

Must be followed by

professionals whenever

decisions are made about a

person’s healthcare treatment

after they have lost capacity.

Is a statement of a person’s

general wishes and care

preferences? For example a

where would a person like to

live, or the type of care and

support they want to receive.

Is not legally binding, though it

should be referred to when

decisions are being made.

An Advance Statement; Is expression of preferences for future treatment or care? An advance statement does not bind medical and other professional staff to a particular course of action if it conflicts with their personal judgement however it is important to consider an advanced statement when planning care and treatment. An advance statement can never force a Doctor to administer treatment to you, which he or she does not consider is in your best interests. Advance Decisions are practically useful if a person suffers from serious mental disorders where there is a chance of relapse. Advance statements provide the opportunity to review a period of ill health and record aspects of care, which worked well, and those which did not. It is important to establish with a person whether or not they wish to make an advance statement, and if they do to ensure it is recorded clearly in the person’s documentation/medical notes. Advance statements can be withdrawn and amended at any time, either orally or in writing, providing the person has the capacity to make a withdrawal or an amendment. All discussions should be recorded in the person medical notes/documentation. (Mental Capacity Act 2005).



5.0 Procedures connected to this Policy

Mental Capacity Act - SOP 01 - Advance Decisions & Advance Statements

6.0 Links to Relevant Legislation This policy is not a substitute for the legislation, regulations and Codes of Practice to which all staff must adhere. The list below is not intended to provide a complete list of the legislation governing the practice of NHS employees. Staff should ensure they receive regular training which will inform them of any changes.

Mental Health Act 1983 (and Regulations)

Mental Health Act 2007 (and associated regulations)

Human Rights Act 1998

Equality Act 2010

Mental Capacity Act 2005

The Care Act 2014

Police and Criminal Evidence Act 1984

Mental Health Act Code of Practice 2015

Mental capacity Act Code of Practice

Mental Health Act Reference Guide 2015

6.1 Links to Relevant National Standards

CQC Essential Standards of Quality and Safety

NHS Litigation Authority (NHSLA)

National Institute for Health & Clinical Excellence (NICE)

Health and Social Care Act 2008 (Regulation 11) 6.2 Links to other Key Policies

Mental Act Policy

Consent to Treatment Policy

6.3 References

Office of the Public Guardian: https://www.gov.uk/government/organisations/office-of-thepublic- Guardian

Mental Capacity Act Code of Practice: http://it-intranet/Home/Community-MH/Safeguarding-

Adults-at-Risk/Mental-Capacity-Act-and-Deprivation-of-Liberty-Safeguards

Dignity in Dying: http://www.dignityindying.org.uk/

NHS End of Life Care: http://www.nhs.uk/planners/end-of-life-care/Pages/End-of-lifecare.

aspx General Medical Council (2008) Consent: Patients & doctors making decisions together.

http://www.gmc-k.org/guidance/ethical_guidance/consent_guidance_index.asp

General Medical Council (2010) Treatment and care towards the end of life: Good practice

In decision making. http://www.gmc- uk.org/guidance/ethical guidance/end_of_life_care.asp

Department of Health www.dh.gov.uk



Department of Constitutional Affairs www.dca.gov.uk Advance Decisions Ethic department Advance Decisions and proxy decision

making in medical treatment and research, guidance from the BMA’s medical Ethic Department 2007.

Guardianship. Gov.uk https://www.nhs.uk/.../Pages/advance-decision-to-refuse-treatment.aspx https://www.scie.org.uk/.../advancedecisionstorefusetreatment.asp https://www.mind.org.uk/.../mental-capacity-act-2005/advance-decisions www.39essex.com/docs/articles/advance_decisions_paper_ark_dece… ·

PDF file Age UK :advance decisions and living wills (http://www.ageuk.org.uk/money-

matters/legal-issues/livingwill/about/) Cardiopulmonary resuscitation (CPR) (https://www.nhs/conditions/first-

aid/cpr/) Advance decisions (https://www.nhs.uk/conditions/end-of-life-care/advance-

statement/).

Statements have been taken and added from the Mental Capacity Act Code of Practice and Mental

Capacity Act 2005 to ensure direct and unfiltered understanding of the Code.



7.0 Roles and Responsibilities for this Policy

Title Role Key Responsibilities

Chief Executive

Executive lead - As Accountable Officer of the Trust the Chief Executive has ultimate responsibility for staff and organisational adherence to legislation, guidance and policy.

- Ensuring appropriate management chains are in place to enable adherence to this policy.

Board of Directors and Board Sub-Committees.

strategic - Ensuring that the Trust has in place the necessary policies and procedures to enable staff to meet the standards aimed at by the Trust.

- Allocating resources required for implementation of policy.

Heads of

service/Matrons/Ward

Mangers.

Operational - Ensuring staff are familiar with this policy (including volunteers, placement staff, students, temporary staff and contracted

staff) and is adhered to.

- Ensuring staff have the tools, resources and skills to deliver the standards detailed in this policy and to undertake the tasks requested of them.

- Ensure that auditing tools in place for this policy are given appropriate priority and action. - Ensure staffs are appropriately trained.

- Ensure compliance

- Ensure incidents are escalated and dealt with accordingly. - Ensuring any disputes regarding Advance Decisions is dealt with immediate concern regarding Advance

Decisions/statements.

Associate Director of Safeguarding

Leadership - Provide leadership and strategic direction on all aspects of safeguarding Adults to ensure that health services contributions are ac-coordinating across the Trust.

- Provide expert knowledge and advice or Trust staff in accordance with national and local requirements arising from relevant legislation and guidance.

All Staff

Adherence - Practicing within the legislative framework and update knowledge of such accordingly.

- Complying with professional Codes of Practice relevant to their discipline. - Must have read the policy and have an understanding of Advance Decisions, statements, and the difference.

- An understanding of their legal obligation under the law and moral and ethics - Now where to escalate concerns too.

- Know where and when to record Advance Decisions/statements.

- Must ensure Advance Decisions/statements are discussed in MDT and decision making.

MCA Implementation

lead

- To provide specialist safeguarding and Mental Capacity Act (2005) advice, support, guidance, escalation of individual cases

and where necessary training and supervision to Safeguarding & Mental Capacity Champions and Trust staff. This does not absolve individual practitioners of their professional accountability and duties

- To compile audits to evidence and offer re assurance that Advance Decisions/statements are:

- Recorded correctly - Actioned

- Discussed in MDT - Evidence of sourcing information

- Escalation of concerns.



8.0 Training

What aspect(s) of this policy will require staff training?

Which staff groups require this training?

Is this training covered in the Trust’s Mandatory and Risk Management Training Needs Analysis document?

If no, how will the training be delivered?

Who will deliver the training?

How often will staff require training

Who will ensure and monitor that staff have this training?

Advance Decisions.

Mental Capacity Act 2005

All Staff who have been identified by

ESR matrix, and or staff who deal with

patients care and

treatment directly.

Currently covered in Safeguarding level 2 & 3.

Face to Face and ESR

Safeguarding leads and or MCA/MHA

lead.

Every Three years

Managers ERS compliance matrix

9.0 Equality Impact Assessment

Black Country Partnership NHS Foundation Trust is committed to ensuring that the way we provide services and the way we recruit and treat staff reflects individual needs, promotes equality and does not discriminate unfairly against any particular individual or group. The Equality Impact Assessment for this policy has been completed and is readily available on the Intranet. If you require this in a different format e.g. larger print, Braille, different languages or audio tape, please contact the Equality & Diversity Team on Ext. 8067 or email [email protected]

10.0 Data Protection and Freedom of Information

Data Protection Act provides controls for the way information is handled and to gives legal rights to individuals in relation to the use of their data. It sets out strict rules for people who use or store data about individuals and gives rights to those people whose data has been collected. The law applies to all personal data held including electronic and manual records. The Information Commissioner’s Office has powers to enforce the Data Protection Act and can do this through the use of compulsory audits, warrants, notices and monetary penalties which can be up to €20million or 4% of the Trusts annual turnover for serious breaches of the Data Protection Act. In addition to this the Information Commissioner can limit or stop data processing activities where there has been a serious breach of the Act and there remains a risk to the data. The Freedom of Information Act provides public access to information held by public authorities. The main principle behind freedom of information legislation is that people have a right to know about the activities of public authorities, unless there is a good reason for them not to. The Freedom of Information Act applies to corporate data and personal data generally cannot be released under this Act. All staffs have a responsibility to ensure that they do not disclose information about the Trust’s activities; this includes information about service users in its care, staff members and corporate documentation to unauthorised individuals. This responsibility applies whether you are currently employed or after your employment ends and in certain aspects of your personal life e.g. use of social networking sites etc. The Trust seeks to ensure a high level of transparency in all its business activities but reserves the right not to disclose information where relevant legislation applies.

mailto:[email protected]

http://simple.wikipedia.org/wiki/Information

http://simple.wiktionary.org/wiki/right



The Information Governance Team provides a central point for release of information under Data Protection and Freedom of Information following formal requests for information; any queries about the disclosure of information can be forwarded to the Information Governance Team. 11.0 Monitoring this Policy is working in Practice

What key elements will be monitored? (measurable policy objectives)

Where described in policy?

How will they be monitored? (method + sample size)

Who will undertake this monitoring?

How Frequently?

Group/Committee that will receive and review results

Group/Committee to ensure actions are completed

Evidence this has happened

Advance Decisions /statements. Monitor that

these have been documented in notes, and

discussed in MDT meetings

and decision making scenarios, and evidence in

care plans.

MDT Admissions

Audit MCA lead 6 monthly Mental health legislation Group

Mental health legislation group

When audit has been

completed resulted

submitted to

group



Policy Details

* For more information on the consultation process, implementation plan, equality impact assessment, Or archiving arrangements, please contact Corporate Governance

Review and Amendment History

Version Date Details of Change

1.0 June 2018 New Policy for BCPFT, Created from an existing SOP.

Title of Policy Mental Capacity Act-Advance Decision To Refuse Treatment &Advance Statement

Unique Identifier for this policy BCPFT-MHA-POL-06

State if policy is New or Revised New

Previous Policy Title where applicable N/A

Policy Category Clinical, HR, H&S, Infection Control etc.

Mental Capacity Act

Executive Director whose portfolio this policy comes under

Executive Director of Nursing, AHPs and Governance

Policy Lead/Author Job titles only

MCA and DoLs Lead

Committee/Group responsible for the approval of this policy

Mental Health Legislation Forum

Month/year consultation process completed *

June 2018

Month/year policy approved July 2018

Month/year policy ratified and issued August 2018

Next review date June 2021

Implementation Plan completed * Yes

Equality Impact Assessment completed * Yes

Previous version(s) archived * n/a

Disclosure status ‘B’ can be disclosed to patients and the public

Key Words for this policy

Policy on advance decision, Attorney, Lasting Power of Attorney, Donor, Enduring Power of Attorney, Advance Statements, Personal Welfare, Written statements of wishes and feelings, Advance Decisions to refuse treatment, Independent Mental Capacity Advocate, Advance directive, Advance decision to refuse treatment, Conscientious objection Best Interests, Capacity, Life-sustaining treatment, Court Appointed Deputy, Court of Protection

mental capacity act-advance decision to refuse treatment

Documents