South Staffordshire and Shropshire Healthcare NHS Foundation Trust

Transcription

1 South Staffordshire and Shropshire Healthcare NHS Foundation Trust Document Type and Title: Authorised Document Folder: Policy on the Use of the Mental Capacity Act 2005 YELLOW Clinical New or Replacing: Replacing C/YEL/mh&ca/05 v2.0 Document Reference: C/YEL/mh&ca/05 Version No. v2.1 Implementation Date: November 2011 Author: Approving body: Approval Date: Ratifying body: Dawn Crowther Mental Health Legislation Manager Quality, Effectiveness and Risk Committee 13 th October 2011 Minor Amendments 19 th September 2013 Trust Board Ratified Date: 27 th October 2011 Committee, Group or Individual Monitoring the Document: Quality, Effectiveness and Risk Committee Review Date: September 2014

2 Contents 1. Introduction 2. Purpose 3. Scope 4. Definitions 5. Duties and Responsibilities 6. Principles 7. The Decision Maker 8. Best interests 9. Lasting Power of Attorney 10. Court Appointed Deputy 11. Independent Mental Capacity Advocates 12. Advance Decisions 13. Office of the Public Guardian 14. Court of Protection 15. The interface between the Mental Capacity Act 2005 and the Mental Health Act Act in Connection with Care or Treatment 17. Restraint/Deprivation of Liberty 18. Children and Young People 19. Assessing Capacity 20. Test of Capacity 21. Recording Capacity and Best Interests 22. Confidentiality 23. Disputes 2

3 24. Decisions exempt from the scope of the Act 25. Ill Treatment/Neglect 26. Research 27. Process for monitoring compliance and effectiveness 28. References Appendices 1. Linked Policies, Procedures and Guidance 2. Flowchart of decision making process 3. Deprivation of Liberty Indicators 4. Form MCA1 Capacity Assessment Day to Day Decisions 5. Form MCA2 Capacity Assessment and Best Interests Determination 6. Advance Decision Checklist 7. Lasting Power of Attorney Checklist 8. Court Appointed Deputy Checklist 3

4 1. Introduction Policy on the Use of the Mental Capacity Act 2005/C/YEL/mh&ca/05/v The Mental Capacity Act 2005 (the Act) provides the legal framework to empower and protect people over the age of 16 who may lack capacity to make some decisions for themselves. 1.2 The Act defines the test for capacity and sets out core principles and methods on making decisions and carrying out actions in relation to personal welfare, healthcare and financial matters on behalf of those who lack capacity. It makes it clear who can take decisions in which situations and how they should go about this. 1.3 The Act applies to all staff making decisions for or acting on behalf of those who may lack capacity to make particular decisions. 2. Purpose 2.1 This document sets out the principles to be followed by staff when working with and/or caring for people who may lack capacity to make specific decisions for themselves. 2.2 This document should be read in conjunction with the Trust policies, procedures and guidance papers shown at Appendix 1 which give instructions and tools to be used in the implementation of this Act. 2.3 A flowchart showing the overall requirements of the Act is shown at Appendix Scope 3.1 This document is applicable to all staff involved in providing care and treatment to any persons in contact with Trust services in all inpatient and community settings. 4. Definitions 4.1 Acts in connection with care or treatment Section 5 of the Act offers statutory protection from liability where a person is performing an act in connection with the care or treatment of someone who lacks capacity. This could cover actions that might otherwise attract criminal prosecution or civil liability if someone has to interfere with the person s body or property in the course of providing care or treatment. 4.2 Advance Decision A decision to refuse specified treatment made in advance by a person who has capacity to do so. 4

5 4.3 Appointee Person appointed under Social Security Regulations to claim and collect social security benefits or pensions on behalf of a person who lacks capacity to manage their own benefits. 4.4 Assessing lack of capacity The Act sets out a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time. It is a decisionspecific and time specific test. No one can be labelled incapable simply as a result of a particular medical condition or diagnosis. Section 2 of the Act makes it clear that a lack of capacity cannot be established merely by reference to a person s age, appearance, or any condition or aspect of a person s behaviour which might lead others to make unjustified assumptions about capacity. 4.5 Best Interests An act done or decision made for or on behalf of a person who lacks capacity must be in that person s best interests. The Act provides a nonexhaustive checklist of factors that decision-makers must work through in deciding what is in a person s best interests. A person can put his/her wishes and feelings into a written statement if they so wish, which the person making the determination must consider. Also, people involved in caring for the person lacking capacity gain a right to be consulted concerning a person s best interests. 4.6 Capacity The ability to make a decision about a particular matter at the time the decision needs to be made. 4.7 Carer Someone who provides unpaid care by looking after a friend or neighbour who needs support because of sickness, age or disability. 4.8 Court Appointed Deputy A person appointed by the Court of Protection to deal with a specific issue or range of issues to help a person who lacks capacity and has not got an attorney. 4.9 Court of Protection Specialist court that deals with all issues relating to people who lack capacity to make specific decisions Court of Protection Visitor Person sent by the Court or Public Guardian to visit people who have deputies or attorneys acting for them to make general welfare checks or investigate suspected problems. 5

6 4.11 Decisionmaker 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 to throughout the Code, as the decision-maker, and it is the decision-maker s responsibility to work out what would be in the best interests of the person who lacks capacity Deprivation of Liberty Safeguards Where a person in a hospital or care home is in receipt of care or treatment which amounts to a deprivation of liberty, this must be authorised through the due process Donor A person who appoints an attorney (by making an EPA or LPA) 4.14 Enduring power of Attorney (EPA) When someone (a donor) appoints someone else (an attorney) to act for them with regard to their property and financial affairs. New EPAs cannot be made after 1 October 2007 but existing ones remain valid Independent Mental Capacity Advocate (IMCA) An IMCA will be appointed to look at the best interest issues where a person lacking capacity has no one to speak for them (friend/family/lpa/deputy) and there is a major decision to be made about serious medical treatment or a long-term care move. May also be appointed in adult protection cases Lasting Power of Attorney (LPA) When someone (a donor) appoints someone else (an attorney) to make decisions about certain things for them in the future. There are two types of LPA: Personal welfare LPAs which can only be used when the donor lacks capacity to make relevant personal welfare or health decisions A property and affairs LPA which can be used whether the person has or lacks capacity to make decisions for themselves unless they have specified otherwise in their LPA Public Guardian / Office of the Public Guardian (OPG) Monitors court appointed deputies, keeps registers of and investigates complaints about attorneys and deputies Receiver Person appointed by the Court of Protection prior to 1 April 2007 to manage the financial interests of someone who lacks capacity. 5. Duties and responsibilities 6

7 5.1 The Director of Nursing is the Executive Director who has overall responsibility for ensuring that this policy is reviewed and that there are appropriate quality assurance mechanisms in place in relation to the guidance in this policy 5.2 Assistant Directors/Service Managers have the responsibility for responding to and ensuring that the team implement new guidance. They also, responsible for ensuring that all regulatory authority inspector reports are action planned and acted upon. 5.3 Each registered healthcare professional is accountable for his/her own practice and must be aware of his/her legal and professional responsibilities relating to their competence and work within the Code of practice of their professional body. 5.4 The Mental Health Legislation Manager is responsible for disseminating new guidance as it arises and giving advice to all staff on mental capacity issues. This manager is also responsible for arranging an annual audit in relation to the MCA. 5.5 Line managers are responsible for ensuring all staff are conversant with this policy and related policies. 5.6 Medical Staff hold a key role in the processes and actions that are required to be taken in relation to assessment of capacity and patient care. 5.7 The Nurse in Charge holds a key role in the processes and actions that are required to be taken in relation to capacity and patient care. 5.8 All staff caring for detained patients should be familiar with the procedures detailed in the document and other related policies. 5.9 Quality, Effectiveness and Risk Committee is responsible for the monitoring and implementation of this policy including review audit/review reports and the progress of any actions plans developed due to noncompliance. 6. Principles 6.1 The whole Act is underpinned by a set of five key principles set out in Section 1 of the Act: A presumption of capacity every adult (aged 16 and over) has the right to make his or her own decisions and must be assumed to have capacity to do so unless and until it is proved otherwise. 7

8 6.1.2 Individuals being supported to make their own decisions all individuals must be given appropriate help and support to enable them to make their own decisions or to maximise their participation in any decision-making Unwise decisions just because an individual makes what might be seen as an unwise or eccentric decision, they should not be treated as lacking capacity to make that decision Best interests an act done or decision made under the Act for or on behalf of a person who lacks capacity must be done in their best interests Least restrictive option anything done for or on behalf of a person who lacks capacity should be the least restrictive of their basic rights and freedoms. 6.2 The underlying philosophy of the Act is to ensure that any decision made, or action taken, on behalf of someone who lacks the capacity to make the decision or act for themselves is made in their best interests. 6.3 The Act is intended to assist and support people who may lack capacity and to discourage anyone who is involved in caring for someone who lacks capacity from being overly restrictive or controlling. It also aims to balance an individual s right to make decisions for themselves with their right to be protected from harm if they lack capacity to make decisions to protect themselves. 7. The Decision Maker 7.1 The decision maker is the person responsible for determining whether a person has capacity in relation to a specific decision that needs to be made and for delivering a best interest outcome. Decision makers exercise a duty of care and are responsible for safeguarding the individual concerned. 7.2 Decision makers include: Support staff and volunteers who assess day to day capacity when offering choices, such as food, bed time, shopping, etc. Included are: care workers, healthcare assistants, advice workers. They must safeguard the rights and interests of the incapacitated person, acts must be in reasonable belief of incapacity, and in their best interests. They should comply with Trust/Directorate/Financial policies, protocols and guidance and consult more senior staff as necessary, but particularly when changes/abuse are noted, or if restraint/deprivations appear needed. 8

9 7.2.2 Doctors, Nurses and Therapists who carry out psychiatric treatment, Care Programme Approach (CPA) and Continuing Care assessments / reviews, invasive assessment and physical treatment, are all decision makers, who must seek consent / determine capacity and best interests. Doctors and Nurse Consultants may also determine the validity of an advance directive, and arrange second opinions if required Psychologists may provide specialist mental capacity assessments. Psychologists can also be CPA care coordinators, and can be part of a multi disciplinary team looking at a best interest decision Social Workers and specified Nurses may be designated decision makers for accommodation placements and moves Qualified staff and therapists who are responsible for making/arranging mental capacity and Single Assessment Process/CPA/Carer or other assessments; arranging best interest placements, initial care plans, care reviews; Appropriate Adults, and resolving complaints. They may also be responsible for supporting families and their staff. 7.3 The Act provides legal protection from liability for carrying out certain actions in connection with the care and treatment of people who lack capacity providing it can be demonstrated that : the principles of the Act have been observed, an assessment of capacity has been carried out, it is reasonably believed the person lacks capacity in relation to the matter, and it is reasonably believed that it is in the best interests of the person for the action to be taken. 8. Best Interests 8.1 In determining what is in a person s best interests, the decision maker must not make it merely on the basis of: the person s age or appearance, or a condition of their, or an aspect of their behaviour, which might lead others to make unjustified assumptions about what might be in their best interests. 9

10 8.2 The decision maker must consider all the relevant circumstances and, in particular, take the following steps: Consider whether it is likely that they will at some time have capacity in relation to the matter in question, and if it appears likely that they will, when that is likely to be So far as reasonably practicable, permit and encourage the person to participate, or to improve their ability to participate, as fully as possible in any act done for them and any decision affecting them Consider, so far as is reasonably ascertainable: the person s past and present wishes and feelings (and, in particular, any relevant written statement made by them when they had capacity), the beliefs and values that would be likely to influence their decision if they had capacity, and the other factors that they would be likely to consider if they were able to do so. 8.3 The decision maker must take into account, if it is practicable and appropriate to consult them, the views of the following persons as to what would be in the person s best interests: anyone named by the person as someone to be consulted on the matter in question or on matters of that kind, anyone engaged in caring for the person or interested in his welfare. 8.4 Where the person who lacks capacity has: a registered donee with a lasting power of attorney (LPA) granted by the person, or a deputy appointed for the person by the court, this LPA or Deputy will be legally empowered to make decisions on behalf of the individual and their view cannot be ignored without legal challenge. See points 9 and 10 respectively below for more information. 8.5 Where the person is found to have no person who can speak for them and the decision to be made is in respect of serious medical treatment or long-term placement, an Independent Mental Capacity Advocate must be consulted (see point 11 below). 10

11 9. Lasting Power of Attorney Policy on the Use of the Mental Capacity Act 2005/C/YEL/mh&ca/05/v The Act replaced the previous system for appointing Enduring Power of Attorney (EPA) in relation to financial decisions with the Lasting Power of Attorney (LPA). In addition to property and affairs (financial matters), LPAs can also cover personal welfare (including healthcare and consent to medical treatment) for people who lack capacity to make such decisions for themselves. 9.2 This allows a person (donor) over the age of 18, to formally appoint one or more people (attorneys or donees) to look after their health, welfare and/or financial decisions, if at some time in the future, they lack capacity to make these decisions for themselves. At the time of making an LPA, the person must have the capacity to understand the importance of the document and the power that they are granting to the attorney. 9.3 The donor must follow the procedure for creating and registering an LPA. Further information and guidance is available from the Office of the Public Guardian website or from the Mental Health Legislation Manager. 9.4 An LPA must be registered with the Office of the Public Guardian (OPG)(see point 13) before it can be used and the attorney must follow the statutory principles set out in the Act and make decisions in the best interests of the person who lacks capacity. 9.5 An LPA for property and affairs can be used when the donor still has capacity unless the donor specifies otherwise. 9.6 An LPA for personal welfare will have no power to consent to, or refuse treatment, at any time or about any matter when the person has the capacity to make the decision for. 9.7 Donors may restrict the extent of the powers granted to the attorney but personal welfare LPAs may include decisions about: where the donor should live and who they should live with; the donor s day-to-day care, including diet and dress; who the donor may have contact with; consenting to or refusing medical examination and treatment on the donor s behalf; arrangements for medical, dental or optical treatment; assessments for and provision of community care services; social activities, leisure activities, education or training; personal correspondence and papers; rights of access to personal information; complaints about the donor s care or treatment. 11

12 9.8 Attorneys do not have the right to consent to or refuse treatment in situations where: the donor has the capacity to make the particular healthcare decision; the donor has made an advance decision to refuse the proposed treatment and has not authorized the donee to over-ride this decision in their LPA; The decision relates to life-sustaining treatment (unless the LPA has specifically authorized this); The donor is detained under the MHA and treatment is authorized under Section Form MCA4 at Appendix 7 should be used to determine whether an LPA is applicable to any decision to be made. 10 Court Appointed Deputy 10.1 In the absence of an EPA or LPA being made, the Court of Protection (see point 14 below) can appoint a deputy to act and make decisions about property and affairs or to make personal decisions on behalf of a person who lacks capacity. The court order from the Court of Protection will specify what powers the deputy is granted and will be as limited in scope and duration as possible If a person who lacks capacity to make decisions about property and affairs has not made a LPA or EPA, applications to the court are necessary for dealing with cash assets over a specified amount that remain after any debts have been paid for selling a persons property, or where the person has a level of income or capital that the court thinks a deputy needs to manage Where the only income of a person who lacks capacity is social security benefits and they have no property or savings there will usually be no need for a deputy to be appointed. People s benefits can be managed by an appointee, appointed by the Department for Work and Pensions Receivers appointed by the court to deal with an incapacitated person s financial affairs prior to the implementation of this Act will continue to act as before for financial affairs only but will be known as a deputy for financial affairs Deputies for personal welfare decisions will only be required in the most difficult cases where: 12

13 important and necessary actions cannot be carried out without the court s authority, or there is no other way of settling the matter in the best interests of the person who lacks capacity to make particular welfare decisions Deputies must be at least 18 years of age and cannot be appointed without their consent. The court can appoint two or more deputies to act jointly or severally (together) A deputy must act whenever a decision or action is needed and it falls within their powers as set out in the court order appointing them. In doing so they must: act in accordance with the Act s statutory principles make decisions or act in the best interests of the person who lacks capacity, in particular they must firstly consider whether the person has capacity to make the decision for themselves A deputy has no authority to refuse the provision of or continuation of lifesustaining treatment for a person who lacks capacity such decisions must be taken by the court Further information and guidance is available from the Justice website or from the Mental Health Legislation Manager Form MCA5 at Appendix 8 should be used to determine whether an LPA is applicable to any decision to be made. 11 Independent Mental Capacity Advocates (IMCAs) 11.1 The aim of the IMCA service is to provide independent safeguards for people who lack capacity to make certain important decisions and, at the time such decisions need to be made, have no-one else (other than paid staff) who is willing and able to support or represent them or be consulted in the process of working out their best interests An IMCA must be instructed, and then consulted, for people lacking capacity who have no-one else to support them (other than paid staff), whenever: an NHS body is proposing to provide, withhold or stop serious medical treatment, or an NHS body or local authority is proposing to arrange accommodation (or a change of accommodation) in hospital or a care home, and the person will stay in hospital longer than 28 days, or they will stay in the care home for more than eight weeks. 13

14 11.3 An IMCA may be instructed to support someone who lacks capacity to make decisions concerning: care reviews, where no-one else is available to be consulted adult protection cases, whether or not family, friends or others are involved 11.4 Serious medical treatment is defined as treatment which 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 there is a fine balance between the likely benefits and the burdens to the patient and the risks involved, a decision between a choice of treatments is finely balanced, or what is proposed is likely to have serious consequences for the patient serious consequences are those which could have a serious impact on the patient, either from the effects of the treatment itself or its wider implications. This may include treatments which cause serious and prolonged pain, distress or side effects The IMCA s role is to support and represent the person who lacks capacity. Because of this, IMCAs have the right to see relevant healthcare and social care records Any information or reports provided by an IMCA must be taken into account as part of the process of working out whether a proposed decision is in the person s best interests NHS organisations and Local Authorities are responsible for instructing an IMCA to represent a person who lacks capacity. In these circumstances they are called the responsible body For decisions about serious medical treatment, the responsible body will be the NHS organisation providing the person s healthcare or treatment. If the person is in an independent or voluntary sector hospital, the responsible body will be the NHS organisation arranging and funding the person s care For decisions about admission to accommodation in hospital for 28 days or more, the responsible body will be the NHS body that manages the hospital. For admission to an independent or voluntary sector hospital for 28 days or more, the responsible body will be the NHS organisation arranging and funding the person s care For decisions about moves into long-term accommodation (for eight weeks or longer), or about a change of accommodation, the responsible body will be either: 14

15 the NHS body that proposes the move or change of accommodation or the Local Authority that has carried out an assessment of the person under the NHS and Community Care Act 1990 and decided the move may be necessary This may be accommodation in a care home, nursing home, ordinary and sheltered housing, housing association or other registered social housing or in private sector housing provided by a local authority or in hostel accommodation Where the NHS Organization and Local Authority makes a decision together about moving a person into long-term care, the Organization that must instruct the IMCA is the one that is ultimately responsible for the decision to move the person. 12 Advance Decisions 12.1 An Advance Decision enables someone aged 18 and over, whilst still capable, to refuse specified medical treatment for a time in the future when they may lack capacity to consent to or refuse that treatment An advance decision to refuse treatment must be valid and applicable to current circumstances. If so, it has the same effect as a decision that is made by a person with capacity: healthcare professionals must follow the decision Healthcare professionals will be protected from liability if they: stop or withhold treatment because they reasonably believe that an advance decision exists, and that it is valid and applicable treat a person because, having taken all practicable and appropriate steps to find out is the person has made an advance decision to refuse treatment, they do not know or are not satisfied that a valid and applicable advance decision exists Where people are detained under the Mental Health Act 1983 (MHA) and can be treated for mental disorder without their consent, they can also be given such treatment despite having an advance decision to refuse it For full guidance on advance decisions see the Trust Advance Decisions guidance Form MCA3 at Appendix 6 should be used to determine whether an advance decision is applicable to any decision to be made. 15

16 13. Office of the Public Guardian Policy on the Use of the Mental Capacity Act 2005/C/YEL/mh&ca/05/v The role of the Public Guardian is intended to protect people who lack capacity from abuse. The Public Guardian is supported by the Office of the Public Guardian ( whose remit is to: Maintain a register of LPAs and EPAs Maintain a register of orders appointing deputies Supervise deputies appointed by the Court Direct Court of Protection Visitors to visit people lacking capacity Receive reports from attorneys acting under LPAs and from deputies Provide reports to the court as requested Deal with representatives (including complaints) about the way in which attorneys or deputies exercise their powers Provide general information about the Act. 14. Court of Protection 14.1 The Court of Protection is a specialist court which deals with all issues related to the Act. It deals with decisions concerning both the property and welfare of people who lack capacity. The Court has the power to: Make declarations about whether or not a person has capacity to make a particular decision Make decisions on serious issues about healthcare and treatment Make decisions about the property and financial affairs of a person who lacks capacity Appoint deputies to have ongoing authority to make decisions Make decision in relation to LPAs and EPAs. 15. MCA/MHA/DOLS 15.1 The Act may be used to treat people for mental disorder when they cannot consent to the treatment because they lack capacity and where the treatment is in their best interests Where the care and treatment of a person who lacks capacity amounts to a deprivation of their liberty (see 17 below), that deprivation must be authorized to be lawful, either under the Deprivation of Liberty Safeguards (DOLS), contained in the Mental Capacity Act (MCA), or the Mental Health Act 1983 (MHA). The case of GJ v The Foundation Trust (2009) EWHC 2972 (Fam) gives important guidance on the relationship between the MHA and the MCA. 16

17 15.3 The judge in this case concluded:...the MHA 1983 has primacy in the sense that the relevant decision makers under both the MHA 1983 and the MCA should approach the questions that they have to answer relating to the application of MHA 1983 on the basis of an assumption that an alternative solution is not available the MCA. He made it clear that the eligibility test is a legal one and it is not lawful for anyone making these decisions to pick and choose between the two statutory regimes as they think fit. Everyone making decisions must recognise the primacy of the MHA 1983 and take all practical steps to ensure that that primacy is recognised and given effect to The use of the MHA must be considered in every case of deprivation of liberty in a hospital before moving on to DOLS. The correct approach to whether an application could be made under the MHA is whether the decision maker thinks the criteria in sections 2 or 3 are met Decision makers must focus on the reason the patient should be deprived of their liberty by asking a series of specific questions: What care and treatment should be provided for: (i) physical disorders or illnesses that are unconnected to and unlikely to affect their mental disorders, and; (ii) mental disorders, and (ii) physical disorders or illnesses that are connected to them and/or which are likely to directly affect their mental disorders If the need for the package of physical treatment did not exist, would the patient be deprived of liberty in a hospital The patient would only be eligible to be held under DOLS if the need to be in hospital is not connected to treatment of their mental disorder Where it is considered that a person might need to be detained for treatment for mental disorder, an assessment under the MHA should take place If the person is detained under the MHA, the Act does not apply to treatment for the person s mental disorder which can be given without consent under the MHA The Act will continue to apply to detained persons for treatment and welfare decisions that fall outside the remit of the MHA A record of whether a person is able to consent to admission must be made using Form MCA2 at Appendix 5 where any person is admitted to hospital Where the implementation of DOLS procedures are indicated are necessary, please see the Trust Policy on Deprivation of Liberty Safeguards for further guidance. 17

18 15.12 The Trust Informal Admission Policy should be followed for patients admitted to hospital who are not subject to any form of detention. 16. Acts in Connection with Care or Treatment 16.1 The Act provides legal protection from liability for carrying out certain actions in connection with the care and treatment of people who lack capacity provided that: the principles of the Act are observed (see 2 above) an assessment of capacity has been carried out and it is reasonably believed that the person lacks capacity in relation to the matter in question, and it is reasonably believed that the action taken is in the best interests of the person 16.2 Acts that might be covered include: help with washing, dressing or personal hygiene help with eating and drinking help with communication help with mobility domiciliary care and other services arranging residence help in maintaining the person s safety and/or associated with adult protection procedures diagnostic examinations and tests assessments mental and dental treatment surgical procedures admission to hospital for assessment and treatment (other than those detained under the MHA see 15 above) nursing care emergency procedures (such as cardiopulmonary resuscitation) (provided no valid advance refusal in place) 16.3 It is important to keep full care plans and records of actions carried out within the scope of the Act as protection from liability will only be available if it can be demonstrated that the steps in 16.1 above have been taken. See point 21 below for further details of recording. 17. Restraint/Deprivation of Liberty 17.1 Restraint covers a wide range of actions, including the use, or threat, or force to do something that the person concerned resists. 18

19 17.2 The Act identifies two conditions which must be satisfied in order for protection from liability for restraint to be available: it must reasonably be believed that it is restraint is necessary to prevent harm to the person who lacks capacity, and the amount or type of restraint must be a proportionate (least intrusive and minimum amount) response to the likelihood and seriousness of harm If there is no alternative way of providing care or treatment other than depriving the person of their liberty (as defined by Article 5(1) of the European Convention on Human Rights), consideration should be given, where applicable, to the use of the MHA (see 15 above), Deprivation of Liberty Safeguards or an application to the Court of Protection to be made There is no definitive legal test for what constitutes a deprivation of liberty and judgments that have come from the courts are closely focused on the facts of each particular case. Richard Jones (Mental Health Act Manual 13 th Edition) has analysed European and domestic case law and provided a list a circumstances that would suggest a deprivation of liberty is occurring (see Appendix 3) The Court of Appeal have set out that the European Court of Human Rights had made clear that a deprivation of liberty has three elements: The objective element of confinement to a certain limited place for a not negligible length of time : Storck v Germany (2005) 43 EHRR 96 at [74] the additional subjective element [that] they have not validly consented to the confinement in question the Storck case, also at [74] the confinement must be imputable to the State : the Storck case, at [89] i.e a public authority is directly involved. In observing these elements, the Trust must demonstrate that the regime for inpatients not detained under the MHA is distinct and different to the regime for those detained under the MHA. Otherwise, a person who lacks capacity to consent for themself, even when they are not objecting is likely to be deprived of his liberty by simply being an inpatient. The Deprivation of Liberty Safeguards will need to be applied in those circumstances even when the person is not objecting if the deprivation of liberty in their best interests is to be made lawful. A summary of the two cases that have informed this can be found at: MentalCapacityActDeprivationofLibertySafeguards/DH_

20 17.6 Where the implementation of DOLS procedures are indicated are necessary, please see the Trust Policy on Deprivation of Liberty Safeguards for further guidance. 18. Children and Young People 18.1 Section 2(5) states that the Act does not generally apply to people under the age of 16, however there are two exceptions: The Court of Protection can make decisions about a child s property or finances (or appoint a deputy to make these decisions) if the child lacks capacity and is likely to still lack capacity to make financial decisions when they reach the age of Offences of ill-treatment or wilful neglect of a person who lacks capacity Most of the Act applies to young people aged years who may lack capacity to make specific decisions. There are three exceptions: Only people aged 18 and older can make a LPA Only people aged 18 and over can make an advance decision to refuse medical treatment The Court of protection may only make a statutory will for a person aged 18 and over Persons carrying out acts in connection with the care or treatment of a young person aged who lacks capacity to consent will generally have protection from liability provided they follow the principles of the Act (in particular see 6 above). 19. Assessing capacity 19.1 Under the MCA an assessment of capacity is required before any care or treatment can be given. Those responsible for assessing capacity (see decision makers at 7. above) should ensure they start from the assumption that the person has capacity to make the decision in question. The more serious the decision, the more formal the assessment of capacity will need to be The MCA makes clear that any assessment of a person s capacity must be decision-specific, this means that: The assessment of capacity must be about the particular decision that has to be made at a particular time and is not about a range of decisions. 20

21 If someone cannot make complex decisions this does not mean that they cannot make simple decisions A decision about capacity cannot be based upon their age, appearance, condition or behaviour alone The person must be encouraged and supported to make the decision themselves. Staff must ensure they have covered the following: Does the person have all the relevant information needed to make the decision? If there is a choice, has information been given on the alternatives? Could the information be explained or presented in a way that is easier for the person to understand? Help should be given to communicate information wherever necessary Are there particular times of the day when a person s understanding is better or is there a particular place where they feel more at ease and able to make a decision? Can anyone else help or support the person to understand information or make a choice? For example, a relative, friend or independent advocate When there is reason to believe that a person lacks capacity to make a decision the following must be considered: Has everything been done to help and support the person to make a decision? Does the decision need to be made without delay? If not, is it possible to wait until the person does have the capacity to make the decision for himself or herself? 20. Test of Capacity 20.1 The Act sets out a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time. It is a decisionspecific and time specific test. No one can be labelled incapable simply as a result of a particular medical condition or diagnosis An assessment must be made on the balance of probabilities is it more likely than not that the person lacks capacity? 20.3 A person lacks capacity in relation to a matter if on the balance of probabilities at the material time (time of assessment) they are 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. It 21

22 does not matter whether the impairment or disturbance is permanent or temporary The person will be unable to make the particular decision if after all appropriate help and support (see 4. above), they cannot do one or more of the following: understand the information relevant to the decision, retain that information, use or weigh that information as part of the process of making the decision, communicate their decision (whether by talking, using sign language or any other means 20.5 Every effort should be made to find ways of communicating with someone before deciding that they lack the capacity to make a decision based solely on their inability to communicate. Very few people will lack capacity on this ground alone. Those who do might include people who are unconscious or in a coma or who suffer from locked-in syndrome. In many other cases such simple actions as blinking or squeezing a hand may be enough to communicate a decision. The input of professionals with specialised skills in verbal and non-verbal communication is likely to be required when making decisions in this area. 21 Recording Capacity and Best Interests 21.1 Accurate records must be kept of decisions made in respect of mental capacity and the determination of best interests and they must be able to demonstrate why certain actions and decisions have been made on behalf of individuals How such assessments are recorded may vary according to the seriousness of the decision made Small decisions that affect an individual s daily routine such as what to wear, buying necessities, and what to eat and drink should be recorded using Form MCA1 at Appendix Key, significant decisions that are beyond an individual s daily routine, eg, clinical treatment, use of money for more than necessities, obtaining/disposing of possessions of value, admission / transfer to hospital or care home, limiting activities the individual would normally do, must be comprehensively recorded by the decision maker using Form MCA2 at Appendix 5. The capacity assessment forms Part 1 of Form MCA2 and where the individual is found to lack capacity, best interests considerations must also be recorded by the decision maker using Part 2 of the form. 22

23 21.5 A capacity assessment of whether a person is able to consent to admission must be made where any person is admitted to hospital (see 15 above). 22 Confidentiality 22.1 Personal information on any individual should not be disclosed unless: the person agrees, or there is a legal obligation to do so, or there is an overriding public interest Where a person lacks capacity, the test of best interests may also justify disclosure An assessment of capacity may require the sharing of information amongst health and social care workers. Only as much information as necessary should be divulged Where a LPA has been appointed for welfare issues, they will determine if information can be shared and they must normally be consulted prior to the disclosure. Where it is not possible to consult, eg. If urgent treatment is necessary, then action must be taken in the person s best interests and the LPA advised as soon as practicable after For full guidance on sharing and disclosure of information please see the Trust Information Security and Information Sharing Guidance. 23. Disputes 23.1 Disputes may occur about issues covered in the Act such as: a persons capacity to make a decision their best interests a decision someone is making on their behalf, or an action someone is taking on their behalf 23.2 It is in everybody s interests to settle disagreements and disputes quickly and effectively, with minimal stress and cost If someone wants to challenge a decision-maker s conclusions, consider Involving an advocate to act on behalf of the person who lacks capacity to make the decision Getting a second opinion Holding a formal or informal best interests case conference Attempting some form of mediation 23

24 Pursue a complaint through the Trust s formal procedures (see Trust Complaints procedure) 23.4 If all other attempts to resolve the dispute fail the matter may need to be referred to the Court of Protection. In this case the issue should be directed to the Associate Director for Quality and Risk at St Georges Hospital, Stafford; or to the Mental Health Legislation Manager at Redwoods Centre in Shrewsbury. 24. Decisions Exempt from the Scope of the Act 24.1 Certain decisions can never be made on behalf of a person, or are governed by other legislation: consent to sex, consent to marriage/civil partnership/divorce, decisions on voting, decisions to give, or consent to treatment for mental disorder of people who are liable for detention and treatment in accordance with Part IV of the Mental Health Act Ill Treatment/Neglect 25.1 The Act provides for a criminal offence of ill treatment or willful neglect of a person who lacks capacity This offence could potentially cover restraining someone unreasonably against their will (see 17 above), failure to provide adequate care, financial, sexual, physical and psychological abuse This offence applies to any person who: Has the care of a person who lacks capacity; Is an attorney appointed under an LPA or EPA; Is a deputy appointed for the person by the court Any suspected abuse must be handled in accordance with the Trust Safeguarding procedures. 26. Research 26.1 The Act sets out a clear framework for a wide range of research including clinical, health and social care research, but not clinical trials which are covered by separate legislation. 24

25 26.2 Safeguards to protect people who lack capacity taking part in research include: Relatives/unpaid carers must be consulted and agree to the person taking part If the person without capacity shows any signs that they are not happy to be involved, research must not continue Research must be necessary, safe and appropriate, and cannot be carried out as effectively using people who have capacity to consent to it Further information on the process for implementing/taking part in research can be found in the Trust Research Governance Policy. 27. Process for monitoring compliance and effectiveness 27.1 Compliance with this policy will be monitored through the mechanisms detailed in the table below. The audit and review findings will be incorporated into an annual report which will highlight any areas of noncompliance. Where compliance is deemed to be insufficient and the assurance provided is limited then remedial actions will be drawn together through an action plan. This progress against the action plan will be monitored at the specified committee/group. Aspect of compliance or effectiveness being monitored Recording of capacity within patient record Recording of Best Interests determination when lack of capacity indicated Monitoring method Audit Audit Individual or department responsible for the monitoring Mental Health Legislation Manager Mental Health Legislation Manager Frequency of the monitoring activity Group/committee/ forum which will receive the findings/monitoring report Annual QERC QERC Annual QERC QERC Committee/ individual responsible for ensuring that the actions are completed 28. References Department of Health (2011) Summary of two cases on the meaning of deprivation of liberty. CapacityActDeprivationofLibertySafeguards/DH_ GJ v The Foundation Trust (2009) EWHC 2972 (Fam) Mental Capacity Act 2005 as amended by the Mental Health Act 2007, Code of Practice and Deprivation of Liberty Safeguards Code of Practice Mental Health Act 1983 as amended by the Mental Health Act 2007 and Revised Code of Practice Richard Jones (2012) Mental Health Act Manual (15 th Edition) 25

26 Linked Policies, Procedures and Guidance Appendix 1 The following Trust policies, procedures and guidance papers which provide information on the implementation of specific areas of this Act should be read in conjunction with this paper. Acceptance of Sponsorship, Hospitality and Gifts Adult Protection / Vulnerable Adults (C-YEL-sg-02 and C-YEL-sg-03) Advance Decisions (C-YEL-cm-13) Complaints Procedure Deprivation of Liberty Safeguards (C-YEL-mh-ca-14) Information Security Information Sharing Patient s Monies Procedures (Money and property) Patient s Property (Cash and valuables) Research Governance Guidance Standing Orders (Declarations of Interests) 26

27 Appendix 2 See separate document C/YEL/mh&ca/05.1 Flowchart to the Policy on the Use of the Mental Capacity Act

28 Deprivation of Liberty Indicators Policy on the Use of the Mental Capacity Act 2005/C/YEL/mh&ca/05/v2.1 Appendix 3 Richard Jones in his Mental Health Act Manual 15 th Edition suggests the following may constitute a deprivation of liberty: 1. Force, threats or medication being used to overcome a patient s resistance to be taken to hospital or care home (unless constituted restraint under section 6 of the Act) 2. Subterfuge being used to ensure the patient s co-operation in being taken to hospital or care home 3. Decision to admit patient to hospital or care home being opposed by relatives and/or carers or a request by them for the patient to be discharged into their care denied 4. Force or a locked door being used to prevent the patient from leaving the hospital or care home in a situation where the patient is making purposeful attempts to leave and they cannot be persuaded to desist 5. Assessment concluding the patient would make a purposeful attempt to leave the hospital or care home if they had the physical capacity to do so 6. Medication used for the primary purpose of preventing the patient from making an attempt to leave the hospital or care home 7. Restrictions place on the patient s freedom of movement within the hospital or care home which are designed to prevent them making an attempt to leave 8. Threats used to dissuade the patient from making an attempt to leave the hospital or care home 9. A decision by the hospital or care home to deny or severely restrict access to the patient by relatives, carers or people with whom the patient enjoys a significant relationship 10. Access to the community being denied or severely restricted where there patient would be capable of benefitting from such access. 28