The Mental Capacity Act The Mental Capacity Act 20052005

Implications for Front Line StaffImplications for Front Line Staff

The Mental Capacity Act The Mental Capacity Act 20052005

Implications for Front Line StaffImplications for Front Line Staff

Richard WilliamsRichard WilliamsProfessor of Mental Health Strategy, University of GlamorganProfessor of Mental Health Strategy, University of Glamorgan

Professor of Child and Adolescent Mental Health, University of Central LancashireProfessor of Child and Adolescent Mental Health, University of Central LancashireScientific Adviser to the Emergency Preparedness Division, Department of HealthScientific Adviser to the Emergency Preparedness Division, Department of Health

Richard WilliamsRichard WilliamsProfessor of Mental Health Strategy, University of GlamorganProfessor of Mental Health Strategy, University of Glamorgan

Professor of Child and Adolescent Mental Health, University of Central LancashireProfessor of Child and Adolescent Mental Health, University of Central LancashireScientific Adviser to the Emergency Preparedness Division, Department of HealthScientific Adviser to the Emergency Preparedness Division, Department of Health

My agenda for My agenda for todaytoday

1.1. The Mental Capacity Act 2005 and its Code of The Mental Capacity Act 2005 and its Code of PracticePractice

2.2. Mental capacityMental capacity

3.3. Assessing capacityAssessing capacity

4.4. What to do in emergenciesWhat to do in emergencies

5.5. Best interestsBest interests

6.6. Protection of carers Protection of carers

7.7. Other instruments, offices and relationshipsOther instruments, offices and relationships

8.8. Concluding commentsConcluding comments

1.1. The Mental Capacity Act 2005 and its Code of The Mental Capacity Act 2005 and its Code of PracticePractice

2.2. Mental capacityMental capacity

3.3. Assessing capacityAssessing capacity

4.4. What to do in emergenciesWhat to do in emergencies

5.5. Best interestsBest interests

6.6. Protection of carers Protection of carers

7.7. Other instruments, offices and relationshipsOther instruments, offices and relationships

8.8. Concluding commentsConcluding comments

The Mental Capacity Act The Mental Capacity Act 2005 and its Code of 2005 and its Code of PracticePractice

The Mental Capacity Act The Mental Capacity Act 20052005

Covers a wide range of decisions or Covers a wide range of decisions or actions taken on behalf of people who actions taken on behalf of people who MAY lack capacity to make decisions fore MAY lack capacity to make decisions fore themselvesthemselves

There are certain decisions that can There are certain decisions that can NEVER be made on behalf of a person NEVER be made on behalf of a person who lacks capacity and some are related who lacks capacity and some are related to health and healthcareto health and healthcare

Covers a wide range of decisions or Covers a wide range of decisions or actions taken on behalf of people who actions taken on behalf of people who MAY lack capacity to make decisions fore MAY lack capacity to make decisions fore themselvesthemselves

There are certain decisions that can There are certain decisions that can NEVER be made on behalf of a person NEVER be made on behalf of a person who lacks capacity and some are related who lacks capacity and some are related to health and healthcareto health and healthcare

Statutory Statutory principlesprinciples

A person must be assumed to have capacity unless it is established that A person must be assumed to have capacity unless it is established that they lack capacitythey lack capacity

A person is not to be treated as unable to make a decision unless all A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without successpracticable steps to help him to do so have been taken without success

A person is not to be treated as unable to make a decision merely A person is not to be treated as unable to make a decision merely because he makes an unwise decisionbecause he makes an unwise decision

An act done, or decision made, under this Act for or oin behalf of a An act done, or decision made, under this Act for or oin behalf of a person who lacks capacity must be done, or made, in his best interestsperson who lacks capacity must be done, or made, in his best interests

Before the act is done, or the decision is made, regard must be had to Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and achieved in a way that is less restrictive of the person’s rights and freedom of actionfreedom of action

A person must be assumed to have capacity unless it is established that A person must be assumed to have capacity unless it is established that they lack capacitythey lack capacity

A person is not to be treated as unable to make a decision unless all A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without successpracticable steps to help him to do so have been taken without success

A person is not to be treated as unable to make a decision merely A person is not to be treated as unable to make a decision merely because he makes an unwise decisionbecause he makes an unwise decision

An act done, or decision made, under this Act for or oin behalf of a An act done, or decision made, under this Act for or oin behalf of a person who lacks capacity must be done, or made, in his best interestsperson who lacks capacity must be done, or made, in his best interests

Before the act is done, or the decision is made, regard must be had to Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and achieved in a way that is less restrictive of the person’s rights and freedom of actionfreedom of action

Mental CapacityMental Capacity

Mental Mental capacitycapacity

Mental capacity is the ability to make a decisionMental capacity is the ability to make a decision Lack of capacityLack of capacity

‘‘For the purposes of this Act, a person lacks capacity in relation For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind impairment of, or a disturbance in the functioning of, the mind or brain’or brain’

This means that a person lacks capacity if:This means that a person lacks capacity if: They have an impairment or disturbance (for example, a disability, They have an impairment or disturbance (for example, a disability,

condition or trauma) that affects the way their mind or brain works, andcondition or trauma) that affects the way their mind or brain works, and The impairment or disturbance means that they are unable to make a The impairment or disturbance means that they are unable to make a

specific decision at the time it needs to be madespecific decision at the time it needs to be made

May be:May be: PermanentPermanent PartialPartial TemporaryTemporary Change over timeChange over time

Mental capacity is the ability to make a decisionMental capacity is the ability to make a decision Lack of capacityLack of capacity

‘‘For the purposes of this Act, a person lacks capacity in relation For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind impairment of, or a disturbance in the functioning of, the mind or brain’or brain’

This means that a person lacks capacity if:This means that a person lacks capacity if: They have an impairment or disturbance (for example, a disability, They have an impairment or disturbance (for example, a disability,

condition or trauma) that affects the way their mind or brain works, andcondition or trauma) that affects the way their mind or brain works, and The impairment or disturbance means that they are unable to make a The impairment or disturbance means that they are unable to make a

specific decision at the time it needs to be madespecific decision at the time it needs to be made

May be:May be: PermanentPermanent PartialPartial TemporaryTemporary Change over timeChange over time

Assessing Assessing CapacityCapacity

Assessing Assessing capacitycapacity

Stage 1: Does the person have an Stage 1: Does the person have an impairment of, or a disturbance in the impairment of, or a disturbance in the functioning of, their mind or brain?functioning of, their mind or brain?

Stage 2: Does the impairment or Stage 2: Does the impairment or disturbance mean that the person is disturbance mean that the person is unable to make a specific decision when unable to make a specific decision when they need to?they need to?

Stage 1: Does the person have an Stage 1: Does the person have an impairment of, or a disturbance in the impairment of, or a disturbance in the functioning of, their mind or brain?functioning of, their mind or brain?

Stage 2: Does the impairment or Stage 2: Does the impairment or disturbance mean that the person is disturbance mean that the person is unable to make a specific decision when unable to make a specific decision when they need to?they need to?

Stage 1: Does the person Stage 1: Does the person have an impairment of, or have an impairment of, or a disturbance in the a disturbance in the functioning of, their mind functioning of, their mind or brain?or brain?

Examples of conditionsExamples of conditions Conditions associated with mental illnessConditions associated with mental illness DementiaDementia Significant learning disabilitiesSignificant learning disabilities Long-term effects of brain damageLong-term effects of brain damage Physical or medical conditions that cause confusion, Physical or medical conditions that cause confusion,

drowsiness or loss of consciousnessdrowsiness or loss of consciousness DeliriumDelirium Concussion following a head injuryConcussion following a head injury The symptoms of alcohol or drug useThe symptoms of alcohol or drug use

Examples of conditionsExamples of conditions Conditions associated with mental illnessConditions associated with mental illness DementiaDementia Significant learning disabilitiesSignificant learning disabilities Long-term effects of brain damageLong-term effects of brain damage Physical or medical conditions that cause confusion, Physical or medical conditions that cause confusion,

drowsiness or loss of consciousnessdrowsiness or loss of consciousness DeliriumDelirium Concussion following a head injuryConcussion following a head injury The symptoms of alcohol or drug useThe symptoms of alcohol or drug use

Stage 2: Does the Stage 2: Does the impairment or disturbance impairment or disturbance mean that the person is mean that the person is unable to make a specific unable to make a specific decision when they need decision when they need to?to? ‘‘A person is unable to make a decision if they A person is unable to make a decision if they

cannot:cannot: Understand the relevant information about the Understand the relevant information about the

decision to be madedecision to be made Retain that information in their mindRetain that information in their mind Use or weigh that information as part of the decision-Use or weigh that information as part of the decision-

making process, ormaking process, or Communicate their decision (by talking, using sign Communicate their decision (by talking, using sign

language or any other means)’language or any other means)’

‘‘A person is unable to make a decision if they A person is unable to make a decision if they cannot:cannot: Understand the relevant information about the Understand the relevant information about the

decision to be madedecision to be made Retain that information in their mindRetain that information in their mind Use or weigh that information as part of the decision-Use or weigh that information as part of the decision-

making process, ormaking process, or Communicate their decision (by talking, using sign Communicate their decision (by talking, using sign

language or any other means)’language or any other means)’

Understanding the Understanding the informationinformation What information is relevantWhat information is relevant

The nature of the decisionThe nature of the decision The reason why the information is neededThe reason why the information is needed The likely effects of deciding one way or another, or making The likely effects of deciding one way or another, or making

no decision at allno decision at all

AdviceAdvice Take time to enable the person to take in the informationTake time to enable the person to take in the information Try to give the most appropriate amount of information Try to give the most appropriate amount of information

(avoid confusion and under informing(avoid confusion and under informing Provide info on risks and benefitsProvide info on risks and benefits Explain effects of the decision on themselves and on close Explain effects of the decision on themselves and on close

persons and carerspersons and carers If there is a choice present the info in a balanced wayIf there is a choice present the info in a balanced way Consider if the person requires advice from another sourceConsider if the person requires advice from another source

What information is relevantWhat information is relevant The nature of the decisionThe nature of the decision The reason why the information is neededThe reason why the information is needed The likely effects of deciding one way or another, or making The likely effects of deciding one way or another, or making

no decision at allno decision at all

AdviceAdvice Take time to enable the person to take in the informationTake time to enable the person to take in the information Try to give the most appropriate amount of information Try to give the most appropriate amount of information

(avoid confusion and under informing(avoid confusion and under informing Provide info on risks and benefitsProvide info on risks and benefits Explain effects of the decision on themselves and on close Explain effects of the decision on themselves and on close

persons and carerspersons and carers If there is a choice present the info in a balanced wayIf there is a choice present the info in a balanced way Consider if the person requires advice from another sourceConsider if the person requires advice from another source

What To Do in EmergenciesWhat To Do in Emergencies

EmergencEmergenciesies ‘‘Clearly, in emergency situations (for example, where a Clearly, in emergency situations (for example, where a

person collapses with a heart attack or for some person collapses with a heart attack or for some unknown reason and is brought unconscious into a unknown reason and is brought unconscious into a hospital), urgent decisions will have to be made and hospital), urgent decisions will have to be made and immediate action taken in the person’s best interests’immediate action taken in the person’s best interests’

‘‘In these situations, it may not be practical or appropriate In these situations, it may not be practical or appropriate to delay the treatment while trying to help the person to to delay the treatment while trying to help the person to make their own decisions, or to consult with any known make their own decisions, or to consult with any known attorneys or deputies’attorneys or deputies’

‘‘However, even in emergency situations, healthcare staff However, even in emergency situations, healthcare staff should try to communicate with the person and keep should try to communicate with the person and keep them informed of what is happening’them informed of what is happening’

‘‘Clearly, in emergency situations (for example, where a Clearly, in emergency situations (for example, where a person collapses with a heart attack or for some person collapses with a heart attack or for some unknown reason and is brought unconscious into a unknown reason and is brought unconscious into a hospital), urgent decisions will have to be made and hospital), urgent decisions will have to be made and immediate action taken in the person’s best interests’immediate action taken in the person’s best interests’

‘‘In these situations, it may not be practical or appropriate In these situations, it may not be practical or appropriate to delay the treatment while trying to help the person to to delay the treatment while trying to help the person to make their own decisions, or to consult with any known make their own decisions, or to consult with any known attorneys or deputies’attorneys or deputies’

‘‘However, even in emergency situations, healthcare staff However, even in emergency situations, healthcare staff should try to communicate with the person and keep should try to communicate with the person and keep them informed of what is happening’them informed of what is happening’

Best InterestsBest Interests

Best interests

Not defined in the law … but …

Provides a checklist of common factors that must be considered when coming to a view as to a person’s best interests Encourage participation Identify all relevant circumstances Find out the person’s views Avoid discrimination Assess whether the person might regain capacity Make no assumptions about quality of life or be motivated

by a desire to bring about death in the case of life-sustaining treatment

Consult others Avoid restricting the person’s rights Weigh up all of the foregoing factors

Not defined in the law … but …

Provides a checklist of common factors that must be considered when coming to a view as to a person’s best interests Encourage participation Identify all relevant circumstances Find out the person’s views Avoid discrimination Assess whether the person might regain capacity Make no assumptions about quality of life or be motivated

by a desire to bring about death in the case of life-sustaining treatment

Consult others Avoid restricting the person’s rights Weigh up all of the foregoing factors

Protection of CarersProtection of Carers

Protections for providers of care

Section 5(1) of the Act provides possible protection for actions carried out in connection with care and treatment carried out on behalf of someone who is believed to lack capacity for the action so long as it is in that person’s best interests and that includes diagnostic or other procedures is included in treatment

Steps for carers to bear in mind Acting in connection with the care or treatment … Checking whether the person has capacity to consent Acting in the person’s best interests Understanding possible limitations on protection from liability Paying for necessary goods and services

Section 5(1) of the Act provides possible protection for actions carried out in connection with care and treatment carried out on behalf of someone who is believed to lack capacity for the action so long as it is in that person’s best interests and that includes diagnostic or other procedures is included in treatment

Steps for carers to bear in mind Acting in connection with the care or treatment … Checking whether the person has capacity to consent Acting in the person’s best interests Understanding possible limitations on protection from liability Paying for necessary goods and services

Other Instruments, Offices and Other Instruments, Offices and RelationshipsRelationships

Other instruments, offices & relationships Lasting Power of Attorney Advance decisions to refuse treatment

Role of Court of Protection and court-appointed deputies

Independent Mental Capacity Advocate service

Research involving persons who lack capacity Children and young people Relationship of MCA with Mental Health Acts

1983 and 2007

Lasting Power of Attorney Advance decisions to refuse treatment

Role of Court of Protection and court-appointed deputies

Independent Mental Capacity Advocate service

Research involving persons who lack capacity Children and young people Relationship of MCA with Mental Health Acts

1983 and 2007

Concluding CommentsConcluding Comments