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Understanding and Managing Understanding and Managing Huntingdon’s DiseaseHuntingdon’s Disease

Mental Capacity Act 2005Mental Capacity Act 2005

Julia BarrellJulia BarrellMCA ManagerMCA Manager

Cardiff and Vale UHBCardiff and Vale UHB

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IntroductionIntroduction

What is the Mental Capacity Act 2005?What is the Mental Capacity Act 2005? 5 Key Principles5 Key Principles What is Mental Capacity?What is Mental Capacity? 2 Stage Test2 Stage Test Best Interests and ConsultationBest Interests and Consultation The decision makerThe decision maker Restraint and restrictionsRestraint and restrictions Other Key IssuesOther Key Issues

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Mental Capacity Act 2005Mental Capacity Act 2005

empowers and protects people who lack empowers and protects people who lack capacity to make decisions for themselvescapacity to make decisions for themselves

puts the needs and wishes of the person puts the needs and wishes of the person at the centre of any decision making at the centre of any decision making processprocess

brings clarity to decision makingbrings clarity to decision making protects incapacitated people but also protects incapacitated people but also

carers and professionalscarers and professionals

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Scope of the ActScope of the Act

affects people aged affects people aged 16 and over16 and over

At any one time, about 2 million people At any one time, about 2 million people have impaired mental capacityhave impaired mental capacity

And 6 million people care for themAnd 6 million people care for them

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Scope of the Act contd..Scope of the Act contd..

Includes people incapacitated by:Includes people incapacitated by: DementiaDementia Physical illness or its treatmentPhysical illness or its treatment Learning disabilityLearning disability Brain injury or strokeBrain injury or stroke Mental disorderMental disorder Substance misuseSubstance misuseOrOr Anyone planning for the futureAnyone planning for the future

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Five Key PrinciplesFive Key Principles

A presumption of capacityA presumption of capacity Support to make decisionsSupport to make decisions Right to make unwise decisionsRight to make unwise decisions Best interestsBest interests Least restrictive interventionLeast restrictive intervention

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What is Mental Capacity?What is Mental Capacity?

Mental capacity is the ability to make a Mental capacity is the ability to make a decision decision

Capacity can vary over timeCapacity can vary over time Capacity may well vary in relation to the Capacity may well vary in relation to the

decision requireddecision required An individual lacks capacity if they are An individual lacks capacity if they are

unable to make a particular decision at unable to make a particular decision at a specific timea specific time

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Two stage Capacity Test Two stage Capacity Test

Is there an impairment of, or disturbance Is there an impairment of, or disturbance in, the functioning of the person’s mind or in, the functioning of the person’s mind or brain?brain?

Is the impairment or disturbance sufficient Is the impairment or disturbance sufficient that the person lacks the capacity to make that the person lacks the capacity to make that particular decision?that particular decision?

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Capacity Test contd..Capacity Test contd..

A person is unable to make a A person is unable to make a decision for himself if he is unable:decision for himself if he is unable:

to to understandunderstand the information the information relevant to the decisionrelevant to the decision

to to retainretain that information that information to to use or weighuse or weigh that information, or that information, or to to communicatecommunicate his decision his decision

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If person lacks capacity….If person lacks capacity….

No-one No-one can consent to care or can consent to care or treatment on behalf of that person, treatment on behalf of that person, exceptexcept

A Court appointed DeputyA Court appointed Deputy A donee of a Lasting Power of AttorneyA donee of a Lasting Power of Attorney

This means that family members, health This means that family members, health professionals, etc, cannot consent on professionals, etc, cannot consent on behalf of the patient!behalf of the patient!

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Best interestsBest interests

Need to weigh up a number of issues, Need to weigh up a number of issues, includingincluding

Medical, welfare, emotional and Medical, welfare, emotional and social issuessocial issues

What the person would have What the person would have decided, if they still coulddecided, if they still could

What other people feel is best for the What other people feel is best for the personperson

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Best Interests ChecklistBest Interests Checklist

To decide what is in an incapacitated person’s To decide what is in an incapacitated person’s best interests consider:best interests consider: The person’s future capacityThe person’s future capacity Their past and present wishes and feelingsTheir past and present wishes and feelings Beliefs and values likely to influence their Beliefs and values likely to influence their

decisiondecision Other factors that the person would be likely Other factors that the person would be likely

to considerto consider

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ConsultationConsultation

Appropriate individuals have a right to be Appropriate individuals have a right to be consulted prior to a best interests decision:consulted prior to a best interests decision: Anyone Anyone named by the named by the incapacitated incapacitated personperson Anyone Anyone engaged in caring for the person or engaged in caring for the person or

interested in his welfareinterested in his welfare Any Any donee of a lasting power of attorneydonee of a lasting power of attorney Any Any deputy appointed by the courtdeputy appointed by the court

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Best interests contd.Best interests contd.

Best interests is NOT what you would want done, if Best interests is NOT what you would want done, if you were the person who lacked capacityyou were the person who lacked capacity

Best interests is NOT just medical best interests – Best interests is NOT just medical best interests – need to consider emotional, welfare and social issues need to consider emotional, welfare and social issues tootoo

Best interests is NOT what the relatives, etc want Best interests is NOT what the relatives, etc want (best for the relatives, etc) – it’s what those people (best for the relatives, etc) – it’s what those people think would be best for the person, knowing them as think would be best for the person, knowing them as they dothey do

Best interests is NOT just “substituted judgement” (ie. Best interests is NOT just “substituted judgement” (ie. what the person would have decided) although this is what the person would have decided) although this is something that needs to be consideredsomething that needs to be considered

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The Decision MakerThe Decision Maker

The person who needs the decision taken The person who needs the decision taken is the person who must decide about the is the person who must decide about the patient’s capacity and decide what is in patient’s capacity and decide what is in their best intereststheir best interests

A range of different decision makers may A range of different decision makers may be involved with the personbe involved with the person

If you need to do something to/for a If you need to do something to/for a patient, patient, YOUYOU need to check capacity and need to check capacity and best interestsbest interests

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Restrictions and restraintRestrictions and restraint

The MCA states that someone is using The MCA states that someone is using restraint if they:restraint if they:

use force – or threaten to use force use force – or threaten to use force – to make someone do something – to make someone do something that they are resisting, orthat they are resisting, or

restrict a person’s freedom of restrict a person’s freedom of movement, whether they are movement, whether they are resisting or notresisting or not

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Appropriate use of…..Appropriate use of…..

When it prevents harm & is proportionate When it prevents harm & is proportionate response to likelihood & seriousness of response to likelihood & seriousness of harm – eg.harm – eg.

Stopping a person from leaving ward Stopping a person from leaving ward because they will get run over – OK!because they will get run over – OK!

Restraining a patient in order to take a Restraining a patient in order to take a blood sample, if this will help with blood sample, if this will help with diagnosis and enable treatment which will diagnosis and enable treatment which will make the patient more comfortable – OK!make the patient more comfortable – OK!

NB. These must be recorded in patient’s NB. These must be recorded in patient’s notes.notes.

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Other Key IssuesOther Key Issues

Advance DecisionsAdvance Decisions LPAs and Court appointed DeputiesLPAs and Court appointed Deputies IMCAIMCA Criminal OffenceCriminal Offence Code of PracticeCode of Practice Protection for staff and carersProtection for staff and carers DoLSDoLS

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Advance DecisionsAdvance Decisions

Advance decisions to Advance decisions to refuserefuse treatment treatment Made only by mentally capable people aged 18 Made only by mentally capable people aged 18

and overand over Can be oral or written (unless relating to life-Can be oral or written (unless relating to life-

saving treatment)saving treatment) Must specify the treatment being refusedMust specify the treatment being refused Healthcare professionals Healthcare professionals are boundare bound by advance by advance

decisions to refuse treatmentdecisions to refuse treatment

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Lasting Power of AttorneyLasting Power of Attorney

Person must be 18 years and over with capacity at Person must be 18 years and over with capacity at the time of making the LPA the time of making the LPA

Gives a named person (or people) power to take Gives a named person (or people) power to take decisions, in donor’s best interests, when donor loses decisions, in donor’s best interests, when donor loses capacity to take those decisionscapacity to take those decisions

Can be about property and affairs or personal welfare Can be about property and affairs or personal welfare Must be registered with Office of the Public Guardian Must be registered with Office of the Public Guardian Can include power to take decisions regarding life-Can include power to take decisions regarding life-

sustaining treatmentsustaining treatment You need to see the registered document and look at You need to see the registered document and look at

what powers the attorney holdswhat powers the attorney holds

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Court Appointed DeputyCourt Appointed Deputy

Court of Protection can appoint someone to be Court of Protection can appoint someone to be the Deputy for a person who lacks capacitythe Deputy for a person who lacks capacity

Deputy will have power to take particular Deputy will have power to take particular decisions on behalf of the person lacking capacity decisions on behalf of the person lacking capacity – may include treatment and care– may include treatment and care

Deputy Deputy cannotcannot refuse consent to life-sustaining refuse consent to life-sustaining treatmenttreatment

You need to see the Court order setting out who You need to see the Court order setting out who the Deputy is and what powers they havethe Deputy is and what powers they have

Court Appointed Deputies for personal welfare are Court Appointed Deputies for personal welfare are rare!rare!

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IMCAIMCA

Independent Mental Capacity Advocate must be involved Independent Mental Capacity Advocate must be involved whenwhen

There is no-one to consult re. an incapacitated person There is no-one to consult re. an incapacitated person andand decisions are being made about serious medical treatment or decisions are being made about serious medical treatment or

significant changes of residence significant changes of residence

Can also be involved whenCan also be involved when the incapacitated person is involved in adult protection the incapacitated person is involved in adult protection

procedures (POVA) procedures (POVA) oror A care review is required and there is no-one to consultA care review is required and there is no-one to consult

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Criminal OffenceCriminal Offence

The Act introduces a new criminal offence The Act introduces a new criminal offence of of ill-treatmentill-treatment or or wilful neglectwilful neglect of a person of a person lacking capacitylacking capacity

The Act does not legitimise euthanasiaThe Act does not legitimise euthanasia

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Code of PracticeCode of Practice

MCA says that paid staff must “have MCA says that paid staff must “have regard” to the Code – ie. need to regard” to the Code – ie. need to follow it!follow it!

Gives detailed guidance on all the Gives detailed guidance on all the issues covered by MCAissues covered by MCA

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Protection for staff and Protection for staff and carerscarers

Section 5 of MCA confers “protection Section 5 of MCA confers “protection from liability”from liability”

Staff and carers won’t be prosecuted Staff and carers won’t be prosecuted or sued if they provide care or or sued if they provide care or treatment for people who lack treatment for people who lack capacity to decide for themselves capacity to decide for themselves about the matter in question, about the matter in question, providing that they comply with MCAproviding that they comply with MCA

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Deprivation of Liberty Deprivation of Liberty Safeguards (DoLS)Safeguards (DoLS)

Part of MCA, came into force on 1Part of MCA, came into force on 1stst April April 20092009

Provide a legal framework for caring for Provide a legal framework for caring for adult, mentally disordered, incapacitated adult, mentally disordered, incapacitated people in situations where they are people in situations where they are deprived of their liberty in hospitals or deprived of their liberty in hospitals or care homescare homes

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RememberRemember

The Act:The Act: Sets out the 5 principles all healthcare staff must adhere toSets out the 5 principles all healthcare staff must adhere to Provides a definition and test of lack of capacityProvides a definition and test of lack of capacity Requires consultation with other people to determine best Requires consultation with other people to determine best

interestsinterests Provides protection for staff and carers if they use Provides protection for staff and carers if they use

restraint/restrictions appropriatelyrestraint/restrictions appropriately Gives advance decisions statutory statusGives advance decisions statutory status Clarifies who can take decisions in healthcare and welfare Clarifies who can take decisions in healthcare and welfare

situationssituations Provides for the lawful deprivation of a person’s liberty in Provides for the lawful deprivation of a person’s liberty in

hospitals and care homeshospitals and care homes

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Further informationFurther information

Mental Capacity Act 2005 Code of Mental Capacity Act 2005 Code of PracticePractice

Mental Capacity Act bookletsMental Capacity Act booklets

http://www.justice.gov.uk/guidance/http://www.justice.gov.uk/guidance/protecting-the-vulnerable/mental-protecting-the-vulnerable/mental-capacity-act/index.htmcapacity-act/index.htm

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Julia BarrellJulia Barrell

Mental Capacity Act ManagerMental Capacity Act Manager029 2074 3652029 2074 3652

WHTN 01872 3652WHTN 01872 3652juliajulia.barrell@wales.nhs.uk.barrell@wales.nhs.uk

http://www.mentalcapacityact.wales.nhs.ukhttp://www.mentalcapacityact.wales.nhs.uk