Mental Capacity Act and Deprivation of Liberty Safeguards

Transcription

1 Policy Number LCH-119 This document has been reviewed in line with the Policy Alignment Process for Liverpool Community Health NHS Trust Services. It is a valid Mersey Care document, however due to organisational change this FRONT COVER has been added so the reader is aware of any changes to their role or to terminology which has now been superseded. When reading this document please take account of the changes highlighted in Part B and C of this form. Part A Information about this Document Policy Name Mental Capacity Act and Deprivation of Liberty Safeguards Policy Type Board Approved (Trust-wide) Trust-wide Divisional / Team / Locality Action No Change Minor Change Major Change New Policy No Longer Needed Approval As Mersey Care s Executive Director / Lead for this document, I confirm that this document: a) complies with the latest statutory / regulatory requirements, b) complies with the latest national guidance, c) has been updated to reflect the requirements of clinicians and officers, and d) has been updated to reflect any local contractual requirements Signature: Date: Part B Changes in Terminology (used with Minor Change, Major Changes & New Policy only) Terminology used in this Document New terminology when reading this Document Part C Additional Information Added (to be used with Major Changes only) Section / Paragraph No Outline of the information that has been added to this document especially where it may change what staff need to do Part D Rationale (to be used with New Policy & Policy No Longer Required only) Please explain why this new document needs to be adopted or why this document is no longer required Part E Oversight Arrangements (to be used with New Policy only) Accountable Director Recommending Committee Approving Committee 1

2 Next Review Date LCH Policy Alignment Process Form 1 2

3 SUPPORTING STATEMENTS This document should be read in conjunction with the following statements: SAFEGUARDING IS EVERYBODY S BUSINESS All Mersey Care NHS Foundation Trust employees have a statutory duty to safeguard and promote the welfare of children and adults, including: being alert to the possibility of child / adult abuse and neglect through their observation of abuse, or by professional judgement made as a result of information gathered about the child / adult; knowing how to deal with a disclosure or allegation of child / adult abuse; undertaking training as appropriate for their role and keeping themselves updated; being aware of and following the local policies and procedures they need to follow if they have a child / adult concern; ensuring appropriate advice and support is accessed either from managers, Safeguarding Ambassadors or the trust s safeguarding team; participating in multi-agency working to safeguard the child or adult (if appropriate to your role); ensuring contemporaneous records are kept at all times and record keeping is in strict adherence to Mersey Care NHS Foundation Trust policy and procedures and professional guidelines. Roles, responsibilities and accountabilities, will differ depending on the post you hold within the organisation; ensuring that all staff and their managers discuss and record any safeguarding issues that arise at each supervision session EQUALITY AND HUMAN RIGHTS Mersey Care NHS Foundation Trust recognises that some sections of society experience prejudice and discrimination. The Equality Act 2010 specifically recognises the protected characteristics of age, disability, gender, race, religion or belief, sexual orientation and transgender. The Equality Act also requires regard to socio-economic factors including pregnancy /maternity and marriage/civil partnership. The trust is committed to equality of opportunity and anti-discriminatory practice both in the provision of services and in our role as a major employer. The trust believes that all people have the right to be treated with dignity and respect and is committed to the elimination of unfair and unlawful discriminatory practices. Mersey Care NHS Foundation Trust also is aware of its legal duties under the Human Rights Act Section 6 of the Human Rights Act requires all public authorities to uphold and promote Human Rights in everything they do. It is unlawful for a public authority to perform any act which contravenes the Human Rights Act. Mersey Care NHS Foundation Trust is committed to carrying out its functions and service delivery in line the with a Human Rights based approach and the FREDA principles of 3

4 Fairness, Respect, Equality Dignity, and Autonomy 4

5 Liverpool Community Health NHS Trust Mental Capacity Act 2005 Policy 5

6 Version Number: Ratified by: V3 LCH Policy Group Date of Approval: 23 rd May 2017 Name of originator/author: Named Nurse Safeguarding Adults / Head of Safeguarding Approving Body / Committee: LCH Policy Group Date issued (Current version): May 2017 Review date (Current Version): May 2019 Target Audience: Name of Lead Director / Managing Director: Changes / Alterations Made To Previous Version: LCH staff Interim Director of Nursing The previous policy covered both MCA and DoLS. The DoLS element has been removed to form a separate policy Policy Statement This policy sets out the legal framework and guiding principles of the Mental Capacity Act 2005 (The Act). Its objectives are to ensure the statutory principles of the Act are understood and implemented and direct staff on the framework and powers within The Act 6

7 No. Section Header Page 1. Introduction 4 2. Scope 4 3. Responsibilities 5 4. Principles 6 5. Naming the Decision Maker 6 6. Reasonable Belief 6 7. Enabling People to Make Decisions 7 8. Mental Capacity Assessment 7 9. Who Can Assess Capacity Consent to Examination or Treatment Best Interests Disputed Best Interest Decision Restraint Statutory Duties Within The Mental Capacity Act (2005) Independent Mental Capacity Advocate Lasting Powers of Attorney (LPA) Court Appointed Deputy Advance Decision to Refuse Treatment Criminal Offences Mental Capacity Act and Young People (16-18years) Training Performance Monitoring Glossary of Terms References 19 Appendix 1 Mental Capacity Assessment 20 Appendix 2 Best Interest Assessment 22 Appendix 3 IMCA Referral Form 26 7

8 1. Introduction 1.1 The Mental Capacity Act (2005) covering England and Wales, applies to all people aged 16 years and over and provides a statutory framework for people who lack the mental capacity to make decisions for themselves or those who have capacity and want to make provision for a time when they may lack mental capacity in the future. The legal framework is supported by the Mental Capacity Act 2005 Code of practice (Department for Constitutional Affairs). (DCA 2007),which provides guidance and information about how the Act works in practice. 1.2 This policy is to ensure practitioners are working within the requirements of the Act and the principles are embedded into policy, procedure, every day practice and service specific contracts. All Liverpool Community Health NHS Trust policies must be compliant with the Mental Capacity Act (2005). 1.3 This policy provides a framework for all staff assessing mental capacity and aims to ensure the principles of the Mental Capacity Act 2005 and its supporting code of practice are upheld when making decisions. 1.4 The Mental Capacity Act Deprivation of Liberty Safeguards (MCA DoLS) came into force on the 1 st April 2009, it contains the procedure for authorising a deprivation of liberty in hospitals and care homes for people who lack the mental capacity to consent to being there. (Within the meaning of Article 5 of the European Convention on Human Rights (ECHR) in a care home or hospital whether placed under public or private funding) 2. Scope (For further information re Deprivation of Liberty Safeguards, please refer to the Deprivation of Liberty Safeguards policy.) 2.1 This policy applies to all staff employed by Liverpool Community NHS Trust including anyone who holds honorary contracts or who has been subcontracted by the Trust. 2.2 The Mental Capacity Act (2005) sets out who can and how to make decisions relating to care and treatment for those who lack capacity to make such decisions. The Act covers decisions relating to finance, social care, medical care and treatment, research, everyday living decisions, as well as planning for the future. 2.3 It does not include decisions covered by other statute such as: 8

9 treatment under the Mental Health Act marriage civil partnership divorce sexual relationships Tenancy agreements etc. 3. Responsibilities 3.1 The Trust Board have responsibility for the quality of service provided to the populations served. The Trust Board responsibilities are delegated to the Director of Nursing who will ensure there are systems and processes in place for embedding the Act into practice and these will be reported on within the safeguarding quarterly and annual reports. 3.2 The Director of Nursing will be supported by other executives and senior managers and follow best endeavours to: Ensure that all performance and quality monitoring documentation is clear about the Trusts expectations for systems, processes and good practice to be compliant with the Act. Ensure that incident, complaint and disciplinary reporting systems provide a structure for regular thematic reporting of events of a nature that relate to the Act to the Director of Nursing. They will also ensure the support of their departments for the collection of information, governance and audit for the measuring of compliance. Proactively promote the implementation of the Act and its 5 principles in all services Ensure robust infrastructure for the development and maintenance of staff knowledge and skills in matters of mental capacity and deprivation of liberty (See Separate policy for deprivation of liberty). 3.3 All staff have a statutory obligation to comply with the Act. It is each individual s responsibility to familiarise themselves with the Act, how it applies to their area of work and seek relevant information and advice were necessary. All staff are responsible for ensuring any concerns or practical factors that hinder / oppose the implementation of this policy, which have not been possible to overcome at local level, are reported through the governance structures. 9

10 4. Principles 4.1 Section 1 of the Mental Capacity Act (2005) sets out five principles designed to emphasise the fundamental concepts of the Act. All staff will comply with their statutory duty to implement the Mental Capacity Act (2005) by adhering to the five principles: 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 have been taken without success. 3. A person is not to be treated as unable to make a decision merely because it is an unwise decision. 4. An act done or decision made, under this Act for or on behalf a person who lacks capacity must be done,or made,in best interests. 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 person s rights and freedom of action. 4.2 When implementing the five principles in practice, all staff will work in partnership with the person, other agencies, informal carers, family and friends, and ensure their documentation reflects how the Act has been implemented. 5. Naming the Decision Maker 5.1 The name of the decision maker must be recorded. This would be the person most appropriate to the decision being made or responsible for the course of action under consideration. This person is responsible for ensuring the Mental Capacity Act (2005) is followed. 5.2 When proven an individual lacks the mental capacity to make the decision, then, the process of arriving at a decision of Best Interests, the information that informed the decision (including an options appraisal), those involved in the decision and the decision made must be clearly recorded in the patient / client service user record. 6. Reasonable Belief 6.1 In most circumstances, it is sufficient for the person assessing capacity to hold a reasonable belief that the person lacks capacity to make a specific decision. Absolute certainty is not required, however the assessor would need 10

11 to be able to give objective reasons for this belief and evidence it through comprehensive record keeping. 6.2 The code of practice lays out the nature of the decisions that can be made with only a reasonable belief of lack of capacity. Significant decisions, decisions relating to restraint as defined by the Act and decisions that have serious consequences must have a more considered and details assessment of capacity. 7. Enabling People to Make Decisions 7.1 Staff will be flexible, person centred and responsive to each individuals communication needs. This can be achieved by: Providing all information relevant to the decision, including information about any choice or alternatives Communicating in a way that the person is most likely to understand. Providing information in a format that is likely to be understood by the person, not just relying on written or spoken word, e.g. the use of easy read guides, photographs, symbols, role play and social stories. Making the person feel at ease and considering what is likely to be the most conducive time and location for them to make the decision. Supporting the person and considering if others can help them to understand information, the risks and the benefits and therefore make a choice. 8. Mental Capacity Assessment 8.1 Within the Mental Capacity Act (2005) the term capacity relates to the person s ability to consent to or refuse care or treatment. A judgement of lack of capacity cannot be made on the basis of a person s: Age Appearance Diagnosis Or any other aspect of behaviour 8.2 The Act provides a two stage test for assessing a person s mental capacity, and this must be used for each individual decision to be made. Staff must presume an individual possesses mental capacity unless it is proven otherwise. 11

12 8.3 Section 2(1) of the Act states:.for the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he/she is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain. 8.4 This means that a person lacks capacity if: They have an impairment or disturbance (for example, a disability, condition or trauma) that effect the way their mind or brain works, And The impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made. 8.5 The assessment must: Relate to a specific defined decision Be undertaken at a time relevant to the decision Be clearly documented in the care record 8.6 It is useful to consider the key aspects required to be understood, retained and weighed for the decision in question before embarking on the assessment of mental capacity. This provides a person specific benchmark against which to assess capacity. 8.7 Liverpool Community Health NHS Trust Capacity Assessment Form can be found in Appendix Who Can Assess Mental Capacity? 9.1 Anyone can assess mental capacity. The decision as to who is the best person to assess capacity is dependent on the decision to be made. The Act requires a person to be named as the decision maker, this person is responsible for ensuring the Act s requirements are followed and documented. It is expected that the person responsible for the delivery of the care or treatment in question will complete the capacity assessment. 9.2 The depth of the capacity assessment will depend on the nature and impact of the decision being made. For significant decisions a more detailed assessment of capacity / incapacity will be required. The opinion of others may assist in a finding of capacity/ incapacity but the decision as to whether someone has or lacks capacity must be taken by the named decision maker. 12

13 In some circumstances it may be advisable to have an assessment of capacity to support risk assessment and risk management plans for unwise decision. 9.3 Documenting an Assessment of capacity - The minimum expectation is that the information relating to the stages of a capacity assessment are entered as free text into the relevant clinical record (electronic and or paper based). The clinical record should evidence that the staff member has identified the impairment or disturbance in the functioning of the patients /clients mind or brain and assessed the ability to understand, retain and weigh up the information relevant to the specific decision to be made and communicate their decision by any means. (This may require additional support to be provided i.e. communication, interpreter etc.) 9.4 For significant decisions on such matters as: serious medical treatment Restraint Accommodation Financial decisions It is recommended these be recorded on appropriate documentation. (See Appendix 1) 9.5 Where the record of assessment (and subsequent Best Interest Decision, see appendix 2) explicitly and adequately demonstrates that the requirements of the Act have been followed, the decision maker is protected from liability. This information may be used in dispute mediation, court processes or investigations. 10. Consent to Examination or treatment 10.1 When an adult patient/client lacks mental capacity to give valid consent to a specific decision, no one else can give consent on their behalf unless they have powers to make welfare decisions by being a registered Lasting Power of Attorney for Health and welfare or a Court Appointed Deputy for Health and Welfare Evidence must be seen and a copy kept on the clinical record to support the claim of power to act on behalf of an adult who lacks capacity. (See lasting powers of attorney 15 and court appointed deputy 16). 13

14 11. Best Interests 11.1 When a person is assessed as lacking mental capacity to consent or refuse care and /or treatment a best interest decision must be made by the decision maker (or an application to the Court of Protection for a court order/ declaration). The Mental Capacity Act (2005) (chapter 5), sets out a statutory checklist of the factors that must be considered for any decision made in best interests of the patient /client The decision maker must evidence through contemporaneous record keeping how they came to the decision in the best interests evidencing the alternatives to the proposed treatment including the risks and benefits of each available option As with assessments of capacity, each best interest decision must be decision specific, and evidenced through care/support planning documentation. 12. Disputed Best Interest Decisions 12.1 The decision maker should seek to avoid disputes occurring by having a clear and transparent process that includes good communication with all parties. However in a small number of cases disputes will still be evident due to conflicting views In those cases the determining factor must always be the best interests of the person who lacks capacity. Ultimately the decision maker is responsible for making a best interest decision. However others, such as family members, may consider themselves to be the person best placed to be the decision maker. Where agreement cannot be reached, local mediation should be sought. In some circumstances it will be advisable to make an application to the Court of Protection for a declaration The decision maker can only consider information and circumstances that they are aware of having followed the statutory checklist. As such they must be conscious that their decision is based on specific information available at the time the decision was made In circumstances where the decision has been implemented, providing the decision maker can evidence that the requirements of the Mental Capacity Act (2005) had been complied with and they acted reasonably they will be protected from liability by The Act. This highlights the importance of good contemporaneous documentation providing clear rationales for decisions. 14

15 13. Restraint 13.1 The use of restraint under the Mental Capacity Act (2005) is permitted where it can be evidenced that it was / is necessary for the purpose of keeping the individual patient/client safe from harm and proportionate to the harm likely. Note: If the use of restraint is for the purpose of protecting others the framework of the Mental Capacity Act (2005) is not appropriate and criminal and common law frameworks should be used which also require evidence of reasonableness; potential for harm, necessity to use such techniques and proportionality of use The Mental Capacity Act (2005) defines restraint as; To use force, or threaten to use force, to make someone do something that they are resisting, or Restricting a person s freedom of movement whether they are resisting or not. From this definition, most practitioners are likely to use or recommend some form of restraint in everyday practice: (an example may be holding a person s arm to prevent needle stick injury during administration of an injection or recommending the use of a lap strap on a wheelchair) 13.3 Restraint can only be used under the provisions of the Act for people who lack capacity and where there is reasonable belief that it is necessary to prevent harm to the patient /client and the nature and duration of the restraint used is a proportionate response to the likelihood and seriousness of that harm Any proposed/ planned use of restraint must be clearly documented using the best interest process to evident the nature and purpose of the proposed restraint, any alternatives and why it is required in the best interest of the patient/client. The use of restraint must be clearly documented in the patients /clients care record Although the Act permits the use of restraint when necessary under the above conditions, it does not permit an act that would deprive a person of their liberty within the meaning of Article 5(1) of the European Convention on Human Rights. Deprivation of Liberty must be authorised through a legal process to retain protection from liability under the provision of the Mental Capacity Act. (For further information see Deprivation of Liberty Safeguards policy) 15

16 14. Statutory Duties within the Mental Capacity Act (2005) 14.1 Independent Mental Capacity Advocate (IMCA) The IMCA service provides independent safeguards for people who lack mental capacity to make specific important decisions. The IMCA does not assess mental capacity or make best interest decisions but will gather information to support the decision maker and check the quality of the process used by the decision maker IMCA s have a statutory right of access to records relating to the decision being made, any request for access to records relating to the decision being made, any request for access to relevant information should not be delayed. A record entry must be made that indicates an IMCA s access to records and what information they were permitted to access There is a statutory duty on the decision maker to refer a patient / client to the IMCA service in several circumstances: When the person lacks capacity and has been referred to the local authority due to a safeguarding concern that meets the threshold for investigation. Or When the person lacks capacity for that specific decision, they are unbefriended (no family / friend / unpaid carers to represent them) and the proposed decision is in relation to: Serious Medical Treatment A proposed stay in hospital longer than 28days (including intermediate care) A proposed accommodation move longer than 8 weeks. A care review involving an accommodation decision In some circumstances where there is clear evidence that the person is befriended, but those individuals are not suitable to consult with. The IMCA service can use their discretion to become involved e.g. very elderly relatives who may be significantly unwell How to refer to the IMCA service If the service user/patient meets the eligibility criteria for an IMCA you must complete an IMCA referral form naming the decision maker. (See appendix 3) 16

17 Further information is available via the intranet site: For enquiries The IMCA Service details are: VoiceAbility. 5th Floor, The Cotton Exchange, Bixteth Street, Liverpool L3 9LQ IMCA Helpline What Does The Act Mean by Serious Medical Treatment? The Mental Capacity Act (2005) defines serious medical treatment as giving new treatment, stopping treatment that has started or withholding treatment where there is: A fine balance between the likely benefits and burdens to the patient/client and the risks involved. A decision between the choice of treatment is finely balanced or What is proposed is likely to have serious consequences to the patient/client Serious consequences are those which could have a serious impact on the patient/client, either from the effects of the treatment or its wider implications. This may include treatments which: Cause serious and prolonged pain distress or side effects Have potentially major consequences for the patients /clients Have a serious impact on the patient / client s future life choices For further clarification refer to the Mental Capacity Act (2005) Code of Practice chapter 10 (10.42 onwards), or to discuss a referral please contact: 17

18 Liverpool Community Health Mental Capacity Act Coordinator or Liverpool Community Health Safeguarding Adults team Duty Line (Mon- Fri ) excluding bank holidays Lasting Powers of Attorney (LPA) Lasting Powers of Attorney were introduced with the Mental Capacity Act. People aged 18 years or over with capacity (donor) have the ability to formally nominate another adult(s) to be their decision maker (donee(s)) if/when they lose mental capacity to make decision. The donor can stipulate what decisions can be made by the done(s) There are two types of Lasting Power of Attorney that a person with capacity over the age of 18 can appoint. Property and financial affairs including finance decisions and Personal health and welfare decisions The power of the donee(s) to act a as a personal welfare attorney only commences when the donor has been deemed as lacking capacity to make a specific decision For a Lasting Power of Attorney to be valid, it must be registered with the Office of the Public Guardian.(details of how to contact are on the LCH Safeguarding Adults intranet page and SIRS (Please refer to Mental Capacity Act (2005) Code of Practice (DCA 2007) chapter 7 for further information) Any decision made by a donee with a registered Lasting Power of Attorney is legally valid where the attorney is acting in the person s best interest in accordance with the Code of Practice Staff must check the validity of the donee s powers, and retain a copy of a person s Lasting Power of Attorney on the clinical file. It would also be helpful to notify other staff / services involved in the persons care and treatment and where appropriate make available copies of the relevant documentation Attorneys have a statutory obligation to comply with the Act and its code of practice. Attorneys not doing so can be displaced by the Public Guardian Prior to the introduction of the Act, Enduring Powers of Attorney could be appointer for property and financial decisions. Any Enduring Powers of 18

19 Attorney made prior to 2007 remain valid for property and finance decisions only Court Appointed Deputy In some circumstances when a person lacks mental capacity to appoint a Lasting Power of Attorney, and on-going decisions are required the Court of Protection may appoint a deputy to make specific decisions. Court appointed deputy s make decisions that are as valid as those made by a person with capacity. The Court of Protection will stipulate what decisions can be made by the deputy In the majority of cases, the court appointed deputy is likely to be a family member or a person who knows the individual well, but in some cases the court can decide to appoint a deputy who is independent form the family. (For further information relating to court appointed deputies refer to Mental Capacity Act (2005) Code of Practice (DCA 2007) chapter 8). Staff must check the powers of any court appointed deputy and retain a copy of the direction of the court on the clinical record where this is enacted in relation to care and treatment. It would also be useful to inform other staff/ services involved in the person s care and provide copies of the relevant documentation Advance Decision to Refuse treatment The Mental Capacity Act (2005) introduced the right for someone with mental capacity over the age of 18 years to make an advanced decision to refuse treatment. Many advance decisions do not have to be in writing, but the person needs to be specific about the treatment they are wanting to refuse in advance and the circumstances that refusal would relate to If the patient/ client wishes to make an advance decision to refuse life sustaining treatment it must be in writing: signed and witnessed. It must contain a statement indicating it is to apply even if life is at risk. (For further information please refer to Mental Capacity Act (2005) Code of Practice (DCA2007), chapter 9) Staff are required to establish the validity and the reliability of any advance decision. Those that are both valid and reliable must be complied with. A copy of the advance decision should be retained on the clinical record. It would be helpful to advise others involved in the person s care of the advance decision and provide copies of any relevant documentation. 19

20 15. Criminal Offences 15.1 How does the Act deal with Ill Treatment and Neglect: The Act introduces two new criminal offences: Ill Treatment and Wilful Neglect of a person who lacks capacity to make relevant decisions The offences may apply to: Anyone caring for a person who lacks capacity this includes, family carers, healthcare and social care staff in hospital or care homes and those providing care in a person s own home. An attorney appointed under an LPA or an EPA or A deputy appointed for the person by the court These people may be guilty of an offence if they ill-treat or wilfully neglect the person they care for or represent Penalties will range from a fine to a sentence of imprisonment of up to five years or both. 16. Mental Capacity and Young People 16.1 Many aspects of the Mental Capacity Act apply to people aged 16 years and over who may lack mental capacity to make a specific decision ( for more information see chapter 12 MCA Code of Practice) However the legislative framework for those cared for under The Children s Act (1989) will continue to apply until they are discharged from such care proceedings For young people aged 16 and 17 years the capacity assessment must be used to determine whether the healthcare decision should be subject to the processes and provisions outlined within the Act. Depending upon the decision staff may then use the Children s Act 1989 or the Mental Capacity Act to proceed with making a decision for the young person lacking capacity Where staff can demonstrate that they have acted in accordance with the Mental Capacity Act their actions will be protected from liability whether or not a person with parental responsibilities consents. A young person s views on whether their parents should be consulted during the best interest process should be considered. 20

21 16.4 Where staff chose to proceed with consent from someone with parental responsibilities, they must inform the parent that they are required to act in a young person s best interest as outlined within the Act For those services working with young people who have a permanent impairment or disturbance in the functioning of the mind or brain, supporting families in becoming familiar with the powers and provisions within the Act is an essential part of the transition work. Families may choose to approach the Court to become Court Appointed Deputy for welfare decisions or property and finance decisions. Information should be provided to assist with such applications. 17. Training Please refer to the current training matrix from Learning and development. 18. Performance Monitoring Mandatory Training Compliance figures Annual MCA audit (Clinical records) 19. Glossary of Terms Advanced Decision to Refuse treatment Best Interest Capacity A decision to refuse specific treatment made in advance by a person who has capacity to do so. The decision will then apply at a future tie when that person lacks capacity to consent to, or to refuse, the specific treatment. This is set out in Section24 (1) of the Act Any decisions made or anything done for a person who lacks capacity to make specific decisions must be in the person s best interest. There are standard minimum steps to follow when working out someone s best interests. These are set out in Section 4 of the Act. 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 21

22 Children s Act 1989 Court of Protection Decision Maker Deprivation of Liberty Deputy /Donee Donor Independent Mental Capacity Advocate Ill Treatment A law relating to children and those with parental responsibilities for children The specialist court for all issues relating to people who lack capacity to make specific decisions. The Court of Protection is established under Section 45 of the Act Under the Act, many different people may be required to make decisions or act on behalf of someone who lacks capacity to make decisions for themselves. The person making the decision is referred throughout the code as the Decision Maker, and it is the decision makers responsibility to work out what would be in the best interest of the person who lacks capacity. Deprivation of Liberty is a term used in the European Convention on Human rights about circumstances when a person s freedom is taken away. Its meaning in practice is defined through case law (See LCH Deprivation of Liberty Policy) Someone appointed by the Court of Protection with ongoing legal authority as prescribed by the Court to make decisions on behalf of a person who lacks capacity to make particular decision as set out in the Act. A person who makes a Lasting Power of Attorney or Enduring Power of Attorney. 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. For a person to be found guilty of ill treatment they must either, have deliberately ill-treated the person or be reckless in the way they were treating the person or not. It does not matter whether the behaviour was likely to cause or 22

23 Lasting Power of Attorney Office of the Public Guardian Restraint Wilful Neglect actually caused,harm or damage to the victims health A Power of Attorney created under the Act (see section 9(1) appointing an attorney(or attorney s) to make decisions about the the donor s personal welfare (including healthcare) and or deal with the donor s property and affairs. The Public Guardian is an officer establishes under Section 57 of the Act. The Public Guardian will be supported by the Office of the Public guardian, which will supervise deputies, keep a register of deputies, Lasting Powers of Attorney and Enduring Powers of attorney, check on what attorneys are doing and investigate any complaints made about attorney s. The use or threat to use force to help do an act which the person resists, or the restriction of the person s liberty of movement, whether or not they resist. Restraint may only be uses when it is necessary to protect the person form harm and is proportionate to the risk of harm. The meaning of wilful neglect varies depending on the circumstances but its meaning can include: that a person has deliberately failed to carry out an act they had a duty to do. 20. References Mental Capacity Act 2005 Mental Capacity Act 2005 Code of Practice (DCA 2007) 23

24 Appendix 1 Patient details NHS number;.. Surname;. Forename;. DOB; Mental Capacity Assessment (v3) Details of Person Assessing Capacity; (Decision Maker) Name Designation/relationship to patient Contact Details Details of others consulted in capacity assessment process: Name Designation/relationship to patient Contact Details Reason / decision required for assessing capacity Diagnostic Test; Does the patient have an impairment or disturbance in the functioning of the mind of brain? NO; YES; If none can be detailed- the person has capacity DISCONTINUE THE ASSESSMENT (eg. Dementia, stroke, brain injury, significant learning disability, confusion, alcohol/drug intoxication) Please expand: 24

25 Does the impairment or disturbance mean that the patient is unable to make a specific decision when they need to? YES: NO: Is the person likely to regain capacity in the future? YES: NO: Can the decision be postponed? YES: NO: Please expand: Functional Test: If the patient is unable to demonstrate ability in any one of the following four areas, the person would be deemed to lack capacity to consent or refuse the particular treatment in question. Does the patient understand the information relevant to the decision to be made? YES : NO What has been done to help the person understand? Describe methods used to aid understanding, eg. Providing information in different formats. What areas does the patient understand or not understand. Do they understand consequences of the decision or any alternative options? Is the patient able to retain the information / explanation long enough to make the decision? YES : NO The person must be able to hold the information in their mind long enough to use it to make an effective decision, however people who can only retain information for a short while must not automatically be assumed to lack capacity to decide- it depends on what is necessary for the decision in question. Is the Patient able to weigh up the information in the decision making process? YES : NO What has been done to assist the patient? (eg. Notebooks, photographs, picture boards, videos, voice recorders.) Is there a demonstration of understanding the consequences of their decision? Is the Patient able to communicate the decision by using any means? What has been done to assist communication? How does the patient usually communicate? YES : NO 25

26 If you have assessed the patient as lacking capacity, is there an Advanced decision to refuse treatment, Court appointed Deputy or Lasting Power of attorney in place? YES NO Outcome of assessment Appendix 2 Patient details NHS number;. Surname; Forename;.. DOB;. Best Interest Assessment (v4) Details of Person completing Best Interest Assessment: (Decision Maker) Name Date Designation/relationship to patient Contact Details Details of others consulted in assessment process. Name Date Designation/relationship to patient Contact Details Decision/ treatment required and need for Best Interest assessment: Has a capacity assessment taken place and documented in relation to the decision identified above? If yes, go to next question, if no, complete mental capacity assessment Did the Mental Capacity assessment highlight a Lasting Power of Attorney for Health and Welfare or a Court Appointed Deputy that has powers to make the decision?. (The LPA needs to be registered with the Office of the Public Guardian to be valid please ask to see the document and if possible leave a copy in the patient s notes). If yes, they will make the decision and are responsible for determining best interest YES/ NO YES/ NO 26

27 If no, go to next question Did the capacity assessment highlight an advance decision that is valid and applicable to the actions involved within the proposed treatment? If yes, please detail (Remember an advance decision refusing life sustaining treatment MUST be in writing, signed and witnessed and clearly state that the decision applies even if life is at risk) YES/ NO Consultation with others What are the views of family, friends, anyone engaged in caring for the person? Is there anyone else interested in the person s welfare that needs to be consulted? Please give details of people consulted and their views and any other additional information: Assessment: Has the person been permitted and encouraged to participate as fully as possible in the decision making process? Please state what has been done to aid participation: Eg. Simplified information, using pictorial aids, Interpreting services/language Line or trusted family/friends. Have you considered advice from the Equality and Diversity team? If there is no (unpaid) person who can help inform the decision making process and this decision 27

28 relates to serious medical treatment, an accommodation move or a safeguarding adults concern, you must appoint an Independent Mental Capacity Advocate. Details of IMCA Name Contact tel number Have you considered the persons past and present wishes and feelings, beliefs and values? (Including any relevant written statements made when competent? Please state any that are relevant to the decision being made. What are the identified risks and benefits of the proposed treatment and any available alternative treatments? Please list the risks and benefits identified for each available option: Risks Benefits Any alternative options

29 Outcome of best interest assessment Please give details and reasoning for decision (s) made including why chosen treatment option is in the best interest. I have taken the above decision in the person s best interest having regard to the means that is the least restrictive of his/her rights and freedom of action. The decision has not been influenced by the patient s age, appearance or unjustifiable assumptions based on his/her behaviour. Signature. Date. Appendix 2 29

30 For Internal Use Only Referral Received Date / / Date first contacted / / Date of appointment / / Time of appointment : Allocated Advocate Name NHS Number / Social Care Number IMCA Referral Form About the Person A Name of Person: B Current Place of Resident (at date of referral): C Telephone Number: Has the Equal Opportunities Form been completed? Yes No Date of Birth: D What is the Best Interest Decision? Serious Treatment Medical Long Term Accommodation Adult Protection Care Review Please describe the decision: 30

31 For Long Term Accommodation, what is the projected discharge date? E Date decision need to be made by: Meeting dates (please specify) F Capacity Assessment Name and position of the profession who had decided the referred person lacks mental capacity to make a decision on the referral issue: Has a 2 stage functional assessment of capacity been carried out? Yes No G Family and Friends Does the referred person have a family? Yes No And/or friends? Yes No Are the person s family appropriate to be involved in the best interest decision? Yes No If no, what is 31

32 the reason the family are not involved? Risk and Support Needs H Support Needs - Please detail any support needs the advocate will need to provide advocacy support e.g. Language or preferred communication methods: I Risks - Please detail any information needed to ensure the safety of the advocate and the referred person during the advocacy process: Key People J Professional making the best interest decision: Referrer (if different from decision maker) Print Name Position Organisation Tel No Mobile No Fax No Pager K Involved professionals (not listed above) and contact details 32

33 L Is the referred person aware of the advocacy referral? Yes No M Signature (Referrer) Date: N Signature (Decision Maker) O PLEASE RETURN THE COMPLETED FORM TO: VoiceAbility, 5 th Floor, The Cotton Exchange, Bixteth Street, Liverpool, L3 9LQ liverpool&seftonreferral@voiceability.org Equal Opportunities Please Complete Do you consider the person you are referring as: Male Transgender Female Prefer not to say How would you describe their ethnic origin or background? White British English / Welsh / Scottish / Northern Irish / British Irish Gypsy or Irish Traveller 33

34 Any other White background, write in Mixed and Multiple Ethnic Groups White and Black Caribbean White and Black African White and Asian Any other Mixed / multiple ethnic background, write in Asian / Asian British Indian Pakistani Bangladeshi Chinese Any other Asian background, write in Black / African/ Carribean / Black British African Caribbean 34

35 Any other Black / African / Caribbean background, write in Other Ethnic Group Arab Any other ethnic group, write in How would you describe their sexuality? Heterosexual / Straight Homosexual / Gay/Lesbian Bi-sexual Prefer not to say How would you describe their religious beliefs? No Religion Jewish Christian Muslim Buddhist Sikh Hindu Any other religion, please specify Prefer not to say Do you consider them to have the following? A Learning Disability Mental Ill Health 35

36 A Physical Disability A Sensory Impairment Dementia Autism An Acquired Brain Injury Dementia Physical Ill Health Other (Please specify) Prefer not to say **Referral Receipt** VoiceAbility will confirm receipt of all IMCA referrals within 24 hours. If you have not received this confirmation, please contact VoiceAbility on the above contact details. Appendix 3 36