Knowsley Health and Wellbeing

A partnership between Knowsley NHS Primary Care Trust and Knowsley Council Directorate of Wellbeing Services

The Mental Capacity Act 2005

Policy and Procedures

Contents

Policy Control Information ………………………………..Page 3

Introduction ……………………………….. Page5

The Code of Practice …………………………………Page 5

Training …………………………………Page 5

Definitions …………………………………Page 5

Principles …………………………………Page 6

Other Changes (including DOLS) ……………………………….. Page 6

Making Decisions about Capacity ……………………………….. Page 8

Referral to the IMCA Service ……………………………….. Page 8

Assessment and Care Planning ………………………………. Page10

Advance Decision to Refuse Treatment ………………………………. Page 11

Other Advocacy and Support Services ………………………………. Page 12

Useful Websites ………………………………. Page 12

Addendum to Easi Care ………………………………. Page 13

Flowchart for making Decisions ………………………………. Page 14

IMCA Service Referral Form ……………………………… Page 15

Checklist 1 – Guide to Assessing Capacity …………………………….. Page 16

Checklist 2 – Best Interest decisions ……………………………… Page17

Checklist 3 – Duty to Instruct an IMCA ……………………………… Page 18

Checklist 4 – Referral to an IMCA in Adult Safeguarding Cases……… Page 19

Checklist 5 – Advance decision to Refuse Treatment …………………. Page 20

Advance decision to Refuse Treatment – suggested format…………… Page 21

Generic Capacity Assessment pro forma………………………………… Page 22

Contact details for Advocacy and other Support Services ……….. Page 26

POLICY DOCUMENT CONTROL PAGE

TITLE

/ Title: Mental Capacity Act Policy and Procedures

Version: 2

Date: April 2009
Reference Number:
SUPERSEDES / Supersedes: Mental Capacity Act Policy and Procedures published October 2007
Description of Amendments: Policy has been reviewed to take account of full implementation of the Mental Capacity Act including the Deprivation of Liberty Safeguards - introduced as a supplement to the main Act from April 2009
ORIGINATOR / Originated by: Linda Crawley
Designation:Head of Modernisation and Improvement
Department / Service: Health and Wellbeing
PROFESSIONAL GROUP APPROVAL / Referred for approval by: Linda Crawley
Referred to (insert name of group/s): Mental Capacity Act Local Implementation
Network
Date of Referral: 26thMarch 2009
Approved by:Date:
Executive Signature:
REVIEW / Review Date: April 2010
Responsibility of: Linda Crawley
QUALITY CONTROL / Date sent to Clinical Governance: April 2009
Quality Control Check Completed:
HCC STANDARDS
LINK / Link to HCC Standards Reference:
Legislative framework to protect the interests of people who lack the mental capacity to consent to care/treatment. Part of the responsibility for safeguarding adults monitored by the Care Quality Commission

POLICY CONTROL PAGE (2) Continued

Training Programme/awareness raising required to fully implement policy: Yes x No  N/A.
If N/A please state why:
Training and awareness raising programme is ongoing. To date over 800 staff across PCT/DWS and partner agencies have attended events plus e learning packages are available for independent study. More specific and focussed training programme delivered to cover the recent introduction of Deprivation of Liberty Safeguards
Training/ Awareness Raising to take place on: Mental Capacity Act
Date: various
Provided by: MCA / DOLS LEAD – Vince Williams
The Policy will be posted on Council and NHS Knowsley intranet & internet:
Date:April 2009
Electronic or Hard Copy Circulation List:
Policy will be circulated by both electronic and hard copy

THE MENTAL CAPACITY ACT 2005

1.INTRODUCTION

(a)The Mental Capacity Act 2005 provides the legal framework for acting and making decisions on behalf of individuals who lack the mental capacity to make particular decisions for themselves. Everyone working with and/or caring for an adult (aged over 16), who may lack capacity to make specific decisions for themselves needs to be aware of and behave in accordance with the Act.

(b)The Act covers a wide range of decisions made and actions taken on behalf of people who may lack capacity to make specific decisions for themselves. These can be decisions about day to day matters – like what to wear or life changing events such as whether the person should move into a care home or undergo a major surgical operation.

2.THE CODE OF PRACTICE

This guidance is based on the Mental Capacity Act 2005 Code of Practice but is not intended to replace it. References to the relevant paragraphs of the Code are made in brackets. There is also a separate Code that focuses specifically on the Deprivation of Liberty Safeguards (DOLS) which has been added to the Act since its original publication in 2007.

Both the main Code and the supplementary DOLS have statutory force.Practitioners need to demonstrate that they have followed the best interests’ decision (see appendices Check list 2) to be assured of protection under the Act. Most importantly, decisions should always be recorded.

3.TRAINING

Knowsley Health and Wellbeing Workforce Development prospectus has details of further specialist training on the Mental Capacity Act. This will be of particular interest to those who may be expected to make decisions on behalf of any incapacitated adult.

The Safeguarding Adults Unit can also arrange access to e-learning packages that cover: Mental Capacity Act 2005, Safeguarding Adults and Deprivation of Liberty Safeguards.

4.DEFINITIONS(Introduction to the Code of Practice)

Mental capacity broadly refers to the ability of an individual to make a decision about specific elements of their life. It is also sometimes referred to as competence. It is not an absolute concept – different degrees of capacity are needed for different decisions, and the level of competence required rises with the complexity of the decision to be made. Neither does it matter whether the condition is temporary or permanent – but, in the case of a temporary condition, the judgement would have to be made as to whether the decision could be delayed until capacity returned. It is clear from both the Act and the Code of Practice that this refers specifically to a person’s capacity to make a particular decision at the time it needs to be made.

Consent is the voluntary and continuing permission of the person to theintervention or decision in question. It is based on an adequate knowledge and understanding of the purpose, nature, likely effects and risks of that intervention or decision, including the likelihood of success of that intervention and any alternatives to it. Permission given under any unfair or undue pressure is not consent.

The Act defines a lack of capacity as:

“…a person lacks capacity in relation to a matter if at the material timehe/she is unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.”

Decision Maker is anyone who is making a health and welfare decision on behalf of another person. This can be a carer or relative who makes a decision about everyday events such as food ordering or dressing. More serious decisions should be made by people in more senior roles. Decisions regarding a change of accommodation should be made by the multi-disciplinary team.

Best Interests is not defined as such in the Act but is about ensuring that everything done for (or on behalf of) a person who lacks capacity is in their best interests. The Act provides a checklist (2) of factors that assessors must work through and decisions must be documented in care plans.

Restraint is defined in the Act as the use or threat of force where an incapacitated person resists, and any restriction of liberty or movement, whether or not the person resists. Restraint is only permitted if the person using it reasonably believes it is necessary to prevent harm to the incapacitated person and if the restraint used is proportionate to the likelihood and seriousness of the harm.

5.PRINCIPLES (Chapter 2 of the Code of Practice – paragraph 2.1 to2.16)

The Act establishes five “statutory principles” which underpin the legislation and which must be applied in all circumstances. These are:

  1. A person must be assumed to have capacity unless it is established that they lack capacity.
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help him / her to do so have been taken without success.
  3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
  4. An act done on a decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his/her best interest.
  5. 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 achieved in a way that is less restrictive of the persons rights and freedom of action

6.OTHER CHANGES

The Act also introduces a number of new roles and procedures and changes some existing ones, including:

  • Enduring Powers of Attorneyremain if made before October 2007 for property and financial affairs only. The Act introduces Lasting Powers of Attorney, which can apply to personal welfare decisions (including health care and consent to treatment) as well as property and financial affairs(existing enduring powers of attorney will continue to be valid until the donor dies).
  • The Court of Protectiondeals with serious decisions affecting healthcare and personal welfare matters of adults who lack capacity in difficult situations where there are disagreements. As a general rule, applications to The Court of Protection must have permission from the Court to apply. However, the relevant person, a donee of a Lasting Power of Attorney or a Court Appointed Deputy may apply to the Court without permission. Any application to the Court of Protection by health and social care professionals may be made when all attempts to resolve any disagreements by using existing advocacy services, Patient Advocacy Liaison Services (PALS) and existing complaints procedures have been followed
  • The Act introduces the Independent Mental Capacity Advocate (IMCA), which is a new role. AnIMCA must be instructed in certain decisions regarding serious medical procedures or changes of accommodation if there is no-one else to support or represent them or be consulted.The IMCA does not make decisions about capacity.The advocates check that the process of assessing capacity and determining best interest has been carried out in accordance with the principles of the Act and the supplementary Deprivation of Liberty Safeguards.
  • Deprivation of Liberty Safeguards (DOLS) apply to anyone who is:
    - aged 18 and over;
    - suffers from a mental disorder or disability of the mind – such as dementia or a profound learning disability;
    - lacks the capacity to give informed consent to the arrangements made for their care and / or treatment; and
    - for whom deprivation of liberty (within the meaning of Article 5 of the European Court of Human Rights) is considered after an independent assessment to be necessary in their best interests to protect them from harm.
    DOLS cover patients in hospitals and people in care homes registered under the Care Standards Act 2000, whether placed under public or private arrangements.
    The safeguards are designed to protect the interests of an extremely vulnerable group of service users who for their own safety and in their own best interests need to be accommodated under care and treatment regimes that may have the effect of depriving them of their liberty, but who lack the capacity to consent. Any such decision must only be made following defined processes and in consultation with specific authorities. A separate supplementary Code to the main Mental Capacity Act sets out these safeguards. Knowsley has also developed local guidance to take account of the changes that become effective from April 2009.

In effect, DOLS:
- ensure people can be given the care they need in the least restrictive regimes
- prevent arbitrary decisions that deprive vulnerable people of their liberty
- provide safeguards for vulnerable people
- provide them with rights of challenge against unlawful detention
- avoid unnecessary bureaucracy

7.MAKING DECISIONS ABOUT CAPACITY

The Act sets out a two stage test to determine whether a person lacks the capacity to make a particular decision

Stage 1 – Establish whether a person has an impairment of, or disturbance in the functioning of, their mind or brain.(Code of Practice paragraph 4.3 to 4.12)

This needs to be establishedas without this the person will not lack capacity under the terms of the Act. The Code of Practice gives the following examples-:

  • conditions associated with some mental illnesses
  • dementia
  • significant learning disabilities
  • the long-term effects of brain damage
  • physical or mental conditions leading to confusion, drowsiness or loss of consciousness
  • delirium
  • concussion
  • the symptoms of alcohol or drug use

It should be stressed, though, that the issue is not the person’s diagnosis, but their capacity to make a decision about a specific issue.

Stage 2 – Establish whether the impairment or disturbance means that the person cannot make a specific decision at that time.(Chapter 3 of the Code of Practice – paragraph 4.13 to 4.25)

The following points need to be addressed. Every possible assistance and support must be given to the person to help him/her make a decision.

  • Can the person understand information about the decision to be made?
  • Can the person retain that information in their mind?
  • Can the person use or weigh the information as part of the decision-making process?
  • Can the person communicate their decision?

If the person cannot do any of these,then there may be an issue with their own capacity which could require the principles of the Act to be followed. Please remember capacity can fluctuate.

See Checklist 1

8.REFERRAL TO THE INDEPENDENT MENTAL CAPACITY ACT SERVICE(IMCA) (Chapter 10 of the Code of Practice)

The IMCA service has been established by the Mental Capacity Act to provide support and representation for people who lack capacity to make specific decisions in certain defined circumstances. The IMCA is not the same as an ordinary advocacy service. There are certain circumstances when a referral to an IMCA must be made, see a, b and c below.(ForReferral Form seeappendices)

a)Healthcare

If a doctor or healthcare professional is proposing serious medical treatment for somebody who lacks the capacity to consent and there is nobody other than paid staff whom it is appropriate to consult, the NHS body responsible for the individual’s treatment has a statutory duty to refer to an IMCA.

Serious medical treatment is defined as treatment that involves giving new treatment, stopping treatment that has already started, or withholding treatment that could be offered in circumstances where:

  • If a single treatment is proposed and there is a fine balance between the likely benefits and the burdens to the individual and the risks involved, or
  • A decision between a choice of treatments if finely balanced, or
  • What is proposed is likely to have serious consequences for the individual.

If the treatment is urgent, that is treatment that cannot be delayed without detriment to the individual, the NHS body is not required to instruct an IMCA before commencing life saving treatment. However should the treatment continue past the point of being urgent/lifesaving then the principles of the Act should be adhered to and a referral to the IMCA Service must take place.

b)Accommodation

If an NHS body is proposing to arrange or change accommodation in a hospital or care home (for 28 days or more) foran individual who lacks the capacity to consent OR

If a Local Authority is proposing to arrange or change residential accommodation(for 8 weeks or more) for an individual who lacks the capacity to consentAND

There is no family member or non-professional carer to support them through the assessment process,

Then an IMCA must be instructed.

If the arrangements need to be made as a matter of urgency and there is no time to instruct an IMCA, then the accommodation can proceed. However, if the person is then expected to be more than 28 days in hospital or 8 weeks in a care home or its equivalent then an IMCA must be instructed as soon as possible after the move.

c)Deprivation of Liberty Safeguards (DOLS)

If a managing authority (the hospital or care home) makes an applicationunder MCA DOLS to authorise a deprivation AND

There is no family member or non-professional carer to support the individual involved throughthe assessment process,

Then the supervisory body (the local council or PCT) must appoint an IMCA under section 39A of the Act.

c)Discretionary Referrals

In addition to (a) (b) and (c) above that require the mandatory involvement of an IMCA, the Act also outlines two circumstances in which NHS bodies and Local Authorities have additional discretionto instruct an IMCA.

Review of Accommodation

  • Where an NHS body or a local authority has made arrangements for the accommodation of a person who does not have capacity to participate in the review that is proposed of those arrangements and
  • He / she has been in that accommodation for 12 weeks or more (continuously) and the accommodation is not provided under an obligation required by the Mental Health Act 1983 and
  • There is nobody other than a paid carer to support and represent him / her
  • The NHS body or local authority may instruct an IMCA if it is satisfied that it would be of particular benefit to him / her to be so represented and
  • Before making any decision resulting from the review of arrangements as to that person’s accommodation must take into account any information given, or submissions made by the IMCA.

The criteria to involve an IMCA in a review are under consideration with partner areas. Staff that are undertaking a review for someone who meets the first 3 points above should discuss this with their line manager in the first instance.

Adult Safeguarding Cases

  • Where it is alleged or there is evidence that a person lacking capacity is or has been abused or neglected or that he / she is abusing or has abused another person and
  • Measures have been taken or are proposed by an NHS body or local authority in accordance with any adult safeguarding procedures set up in response to statutory guidance, outlined in “No Secrets”
  • The NHS body or local authority may instruct an IMCA if it is satisfied that it would be of particular benefit to the individual to be so represented, even if he or she has family or friends who can be consulted and
  • Before making any decision or further decision about protective measures, any information given or submissions made by the IMCA must be taken into account.

Criteria for referral to an IMCA in Adult Safeguarding Cases have been agreed and follow recommendations of the ADSS Safeguarding Adults Reference Group. They are listed in Checklist 4.