Mental Capacity Act The Mental Capacity Act is designed to protect people who can’t make decisions for themselves or lack the mental capacity to do so. This could be due to a mental health condition, a severe learning difficulty, a brain injury, a stroke or unconsciousness due to an anaesthetic or sudden accident. The act’s purpose is: * To allow adults to make as many decisions as they can for themselves. To enable adults to make advance decisions about whether they would like future medical treatment. * To allow adults to appoint, in advance of losing mental capacity, another person to make decisions about personal welfare or property on their behalf at a future date. * To allow decisions concerning personal welfare or property and affairs to be made in the best interests of adults when they have not made any future plans and cannot make a decision at the time. To ensure an NHS body or local authority will appoint an independent mental capacity advocate to support someone who cannot make a decision about serious medical treatment, or about hospital, care home or residential accommodation, when there are no family or friends to be consulted. * To provide protection against legal liability for carers who have honestly and reasonably sought to act in the person’s best interests. * To provide clarity and safeguards around research in relation to those who lack capacity.
Under the Mental Capacity Act a person is presumed to make their own decisions “unless all practical steps to help him (or her) to make a decision have been taken without success”. Every person should be presumed to be able to make their own decisions. You can only take a decision for someone else if all practical steps to help them to make a decision have been taken without success. For example, someone might have the capacity to walk into a shop and buy a CD but not to go into an estate agent and purchase a property.
Incapacity is not based on the ability to make a wise or sensible decision. How ‘mental incapacity’ is determined To determine incapacity you will need to consider whether the person you’re looking after is able to understand the particular issue that they’re making a decision about. You need to consider if they have: * an impairment or disturbance in the functioning of the mind or brain, and * an inability to make decisions. A person is unable to make a decision if they cannot: * understand the information relevant to the decision, retain that information, * use or weigh that information as part of the process of making the decision, or * communicate the decision. Making decisions for someone If, having taken all practical steps to assist someone, it is concluded that a decision should be made for them, that decision must be made in that person’s best interests. You must also consider whether there’s another way of making the decision which might not affect the person’s rights and freedom of action as much (known as the ‘least restrictive alternative’ principle). Best interests
The Mental Capacity Act sets out a checklist of things to consider when deciding what’s in a person’s best interests. You should: * Not make assumptions on the basis of age, appearance, condition or behaviour. * Consider all the relevant circumstances. * Consider whether or when the person will have capacity to make the decision. * Support the person’s participation in any acts or decisions made for them. * Not make a decision about life-sustaining treatment “motivated by a desire to bring about his (or her) death”. * Consider the person’s expressed wishes and feelings, beliefs and values. Take into account the views of others with an interest in the person’s welfare, their carers and those appointed to act on their behalf. Applying the Mental Capacity Act Most of the Mental Capacity Act 2005 came into force on October 1 2007 and it has a number of effects on how people can decide on their affairs in case they lose mental capacity. Lasting powers of attorney and court-appointed deputies The person you care for can grant a lasting power of attorney (LPA) to another person or people to enable them to make decisions over their personal welfare and their property and financial affairs.
There will be a separate legal document in respect of each of these, appointing one or more attorneys. An enduring power of attorney (EPA) under the previous law was restricted to making decisions over just property and financial affairs. An EPA made before October 1 2007 remains valid. Powers of attorney can be made at any time when the person making it has the mental capacity to do so. Both an EPA and LPA must be registered. An LPA can be registered at any time but a personal welfare LPA will only be effective once the person has lost capacity to make their own decisions.
An EPA can only be registered when the person who made it is losing or has lost the capacity to make their own decisions. In addition, the Court of Protection will be able to appoint ‘deputies’ who can also take decisions on health and welfare, as well as in financial matters. They will come into action when the court needs to delegate an ongoing series of decisions rather than one decision. Deputies will not be able to refuse consent to life-sustaining treatment. The Court of Protection
The Court of Protection oversees the operation of the Mental Capacity Act and deals with all issues, including financial and serious healthcare matters, concerning people who lack the mental capacity to make their own decisions. It also tries to resolve all disputes when the person’s carer, healthcare worker or social worker disagree about what’s in the person’s best interests, or when the views of the attorneys in relation to property and welfare conflict. The Public Guardian The role of the Office of the Public Guardian is to protect anyone who lacks mental capacity to make decisions for themselves.
It registers LPA and EPA and supervises court-appointed deputies. It supervises court-appointed deputies and provides evidence to the Court of Protection and information and guidance to the public. The Public Guardian works with a range of agencies, such as the police and social services, to investigate concerns. The independent mental capacity advocate service The independent mental capacity advocate helps people: * who do not have mental capacity, * who have not given powers of attorney to anyone, * who do not have a court-appointed deputy, and * who have no friends or family to speak on their behalf.
They will help the person who lacks capacity to make decisions about serious medical treatment, such as heart surgery or electro-convulsive therapy (ECT), and long-term accommodation in a hospital or care home. Advance decisions The Mental Capacity Act 2005 came into force on October 1 2007 and affects the way people make decisions about their future care if they lose mental capacity. This includes decisions on whether they want life-saving treatment and to participate in research. Advance decisions If the person you care for is aged 18 or older and has mental capacity they can appoint a personal welfare lasting power of attorney (LPA).
The person who is given power of attorney (the ‘attorney’) will be able to make decisions about future medical treatment on their behalf if the person doesn’t have the mental capacity to make the decision. If the person you care for wishes to refuse medical treatment in the future, they should make their wishes known by making an ‘advance decision’ (previously known as an ‘advance directive’). This is made when the person still has capacity and is used if they’re not able to make the decision themselves at the time of the proposed medical treatment.
If the person you’re looking after makes an advance decision, you can’t override it unless the LPA was made later and specifies that you have the power to do so. An advance decision can be made verbally or in writing. The code of practice in the Mental Capacity Act provides a checklist of information to be included in any written statement. The statement should include: * Full details of the person you act for and who is making the statement, including their date of birth, home address and any distinguishing features (so that an unconscious person, for example, could be identified). The name and address of their general practitioner (GP). * Whether the GP has a copy of the statement. * Something to say that the decision is intended to have effect if the person you’re looking after lacks the capacity to make treatment decisions. * A clear statement of the decision, specifying the treatment to be refused and the circumstances in which the decision should be used or which will trigger a particular course of action. * The date the document was written and, if appropriate, the date it was reviewed. * The person’s signature.
If the person can’t write, they must give authority to somebody else to sign on their behalf in their presence. * A signature from a witness to the above. Life-saving treatment If the person you’re looking after has made an advance decision to refuse life-sustaining (or life-saving) treatment in the future, then the document must be in writing and signed by: * the person you’re looking after (or in addition, someone they have authorised to sign on their behalf and in their presence), and * a witness to the signature of the above.
The advance decision must then also include a specific statement by the person you’re looking after which: * clearly states that it relates to the treatment they have specified “even if life is at risk”, and * is signed in the same way in the presence of a witness who must also sign the statement. Whether treatment is life sustaining or not depends not only on the type of treatment but also on the individual circumstances in which it is prescribed.
For example, in some cases, giving antibiotics to the person you’re looking after may help to keep them alive, whereas in other situations the same medication might be prescribed to treat conditions that aren’t life-threatening. The person you’re looking after cannot make an advance decision refusing measures necessary to keep them comfortable, such as warmth, shelter and hygiene. Research The Mental Capacity Act contains safeguards for many types of research involving people who lack capacity to agree to it.
It tries to balance the wishes of people who lack capacity to benefit from properly conducted research with the need for the strict safeguards set out in European law. The act talks about ways of consulting people, approval of the safety of the research and levels of risk and intrusion. The act says that the interests of the incapacitated person are more important than the interests of science and society. What is Deprivation of Liberty? Some people who live in hospitals and care homes can’t make their own decisions about their care or treatment because they lack the mental capacity to do so.
They need more care and protection than others to make sure they don’t suffer harm. Sometimes, caring for and treating people who need extra protection may mean restricting their freedom. For instance, it might be necessary to stop a person from leaving the hospital or care home, or staff might have to make most of the choices for a person inside the care home. If there are a lot of restrictions, it may be that the person is being deprived of their liberty. Hospitals and care homes should always try to avoid this, but sometimes there is no alternative to deprive a person of their liberty because it is in their best interests.
What are the Deprivation of Liberty Safeguards? The Deprivation of Liberty Safeguards are part of the Mental Capacity Act 2005 (amended by Mental Health Act 2007). It applies to anyone who: * Is aged 18 or older * Is suffering a disorder or disability of the mind * Lacks the capacity to give consent to their care/treatment * Is receiving care or treatment that might amount to a deprivation of liberty under Article 5 of the European Court of Human Rights.
If there is no alternative but to deprive such a person of their liberty, the new Deprivation of Liberty Safeguards say that a hospital or care home must apply to the supervisory body for authorisation. The supervisory body is the local authority or Primary Care Trust that commissions the service. The Supervisory Body is responsible for commissioning the required assessments to determine whether the person concerned: * comes under the deprivation of liberty safeguards * is deprived of their liberty, and if so, whether it is in their best interests.
If the Supervisory Body authorises a deprivation of liberty, this will be for a limited time (up to a maximum of 12 months) and the Supervisory Body may put conditions in place to make sure the person’s welfare is safeguarded. The Supervisory Body will also make sure that the person being deprived of their liberty has a ‘Representative’ who will keep in touch with the person, support them in all matters regarding the authorisation, and ask for a review of the authorisation when necessary. This Representative would usually be a family member or friend.
In the absence of anyone suitable, the Supervisory Body will arrange a paid advocate. The Safeguards also allow people the right of appeal against a decision in a court of law. What are Authorities’ duties under the Safeguards? Hospitals and Care Homes (these are called Managing Authorities) have a duty to: * Provide care and treatment in ways that do not deprive a person of their liberty, or if this is impossible; * Apply to the Supervisory Body for authorisation of the deprivation of liberty; * Make an urgent authorisation (for 7 days) where a deprivation of liberty is already occurring.
The Council and the Primary Care Trust (these are called Supervisory Bodies) have a duty to: * Assess any person for whom the Managing Authorities request a deprivation of liberty * Authorise a deprivation if it is necessary in the best interests of a person to whom the Safeguards apply * Set any necessary conditions to make sure the person’s care/treatment meets their needs in their best interests * Set a time-scale for how long a deprivation can last * Keep records of who is being deprived of their liberty.
What should I do if I feel a person is being deprived of their liberty? * Discuss the issue with the hospital or care home. They may be able to change a person’s care or treatment to make sure the person is not being deprived of their liberty, or may be able to explain why a person is not actually deprived of their liberty. * Request that the Supervisory Body reviews the person to see whether they are being deprived of their liberty. This request can be by telephone, fax or email.