Supersedes: Version 1 Description of Amendment(s): Amendments to Stage Test of Capacity. Originated By: The Mental Capacity Act Working Group

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1 Review Circulation Application Ratification Originator or modifier Supersedes Title Document Control Template DOCUMENT CONTROL PAGE Title: Mental Capacity Policy Version: 1.1 Reference Number: MCA001 Supersedes: Version 1 Description of Amendment(s): Amendments to Stage Test of Capacity Originated By: The Mental Capacity Act Working Group Designation: NA Modified by: NA Designation: NA Ratified by: The Clinical Effectiveness Committee Sub Committee Approval Date: [if required] Delete as necessary All Patients Issue Date: September 2010 Circulated by: The Mental Capacity Act Working Group Issued to: See distribution Review Date: September 2013 Responsibility of: The Lead Nurse Safeguarding

2 Document Control Template POLICY CONTROL PAGE (2) CIRCULATION DOCUMENT Circulation List: Clinical Heads of Division Divisional Directors Clinical Directors Heads of Nursing Head of Allied Health Professionals For Information Medical Director Chief Nurse Director of Nursing Head of Risk Management and Patient Safety Central Manchester and Manchester University Hospitals NHS Trust is committed to promoting equality and diversity in all areas of its activities. In particular, the Trust wants to ensure that everyone has equal access to its services. Also that there are equal opportunities in its employment and its procedural documents and decision making supports the promotion of equality and diversity. Refer to section 8 for more detail on undertaking equalities impact assessment. This document must be disseminated to all relevant staff, this has been submitted to Professional Nurse Forum for onward dissemination and implementation. The Policy must be posted on the intranet: Date Posted: October 2010

3 1. Introduction 4 2. When This Policy Should Be Used 5 3. Scope 5 4. Definitions 6 5. How to assess capacity (the ability to make an informed decision) 9 6. Guidance on the best interest decision making process IMCA Training Policy Review Monitoring References/Links to other Policies and/or legislation 13 Appendix 1 Two Stage Test of Capacity 15 Appendix 2 Best Interest Decision Making Support Tool 17 Appendix 3 IMCA Referal Form- ReThink 18 Appendix 4 IMCA Referal Form- North West Advocacy Services 23

4 1. Introduction 1.1. The Mental Capacity Act 2005 for England & Wales (The Act) received Royal Assent on 7 April Parts of the Act were available from April the introduction of Independent Mental Capacity Advocate (IMCA s) - but most of The Act came into force in October The Act applies to people aged 16 and over, and provides a statutory framework for the protection of people who may lack capacity to make some decisions themselves, based on current best practice and common law principles. It also makes it clear who can take decisions in which situations and enables people to plan ahead (Advance Decisions) for a time when they may lack capacity The Act also replaces current schemes for Enduring Powers of Attorney and provides Court of Protection receivers with reformed and updated schemes From April 2007, the Act introduced a new criminal offence of ill treatment or neglect of a person who lacks capacity. A person found guilty of such an offence may be liable to imprisonment for a term of up to five years Effective from 1 April 2009, the Deprivation of Liberty Safeguards (DOLS) have been added to The Act; these were introduced to provide a legal framework around the deprivation of liberty and the Guidance is to be used in conjunction with the Mental Capacity Act Guidance Specifically, they were introduced to prevent breaches of the European Convention on Human Rights (ECHR) such as the one identified by the judgment of the European Court of Human Rights (ECtHR) in the case of HL v the United Kingdom3 (commonly referred to as the Bournewood judgment) To prevent further similar breaches of the ECHR, the Mental Capacity Act 2005 has been amended to provide safeguards for people who lack capacity specifically to consent to treatment or care in either a hospital or a care home that, in their own best interests, can only be provided in circumstances that amount to a deprivation of liberty, and where detention under the Mental Health Act 1983 is not appropriate for the person at that time The Act is underpinned by a set of five key principles: A presumption of capacity every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise; Individuals being supported to make their own decisions a person must be given all practicable help to make their own decisions before anyone treats them as not being able to do so; Unwise decisions just because an individual makes what might be seen as an unwise decision, they should not be treated as lacking capacity to make that decision;

5 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; and 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. 2. When This Policy Should Be Used 2.1. This policy should be referred to and used by Trust staff who have concerns about their patients ability to make informed decisions and to consent to the care and treatment that the staff member is proposing This policy should be used in conjunction with the Trust Consent Policy. Staff should assume that all patients have the capacity to make decisions or consent until it can be proved that a person lacks capacity to decide in relation to a particular decision (see 1.7 for the key principles of the Act) In practise this means that staff should follow usual best practise for care and treatment planning in collaboration with patients and by gaining informed consent for all interventions until there is doubt as to the patient s ability to engage in this process. This doubt may be raised due to, for example, a memory impairment, intoxication, delirium At this point staff should refer to this policy and consider whether an assessment of capacity in relation to the particular decision is needed (see section 4 below) There may be a requirement to refer to the policy in the event of treating a child with a Parent or Guardian who lacks capacity. In this event please contact the Safeguarding Team for advice This policy then sets out what staff need to do in order to comply with the act when working with patients who lack capacity for particular decisions Important the act is decision specific. This means that a separate assessment of capacity and clear documentation of process is required for each different decision. 3. Scope 3.1. All staff working in health and social care are affected by the Act and the guidance in this policy is for staff working within, or on behalf of, Central Manchester University Hospitals NHS Foundation Trust The Mental Capacity Act and the Mental Health Act 1983 (MHA) are completely independent of each other. The MHA relates to people who are diagnosed as having a mental health problem, which requires that they be detained or treated in the interests of their own safety or to protect other people. Prior to an application under the MHA any decision maker should consider whether the aims could be safely achieved by using the MCA instead. MCA applies to people subject to an MHA application with some

6 exceptions please refer to Section 13 of the MCA Code of Practice for further details: The deprivation of liberty safeguards apply to both publicly and privately arranged care or treatment please refer to separate Deprivation of Liberty Safeguards Policy. 4. Definitions 4.1. Descriptors of assessment and key provisions of the Act are as follows: Advance decisions to refuse treatment The Act creates statutory rules with clear safeguards so that people may make a decision in advance to refuse treatment if they should lack capacity in the future. The Act sets out two important safeguards of validity and applicability in relation to advance decisions. Where an advance decision concerns treatment that is necessary to sustain life, strict formalities must be complied with in order for the advance decision to be applicable. These formalities are that the decision must be in writing, signed and witnessed. In addition, there must be an express statement that the decision stands even if life is at risk which must also be in writing, signed and witnessed. Advance decisions may be made from October 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 decision-specific and time specific test. No one can be labeled 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 behavior, which might lead others to make unjustified assumptions about capacity. People may, however, have difficulties in making some decisions all or some of the time if they have a learning disability; dementia; a mental health problem; a brain injury or stroke; confusion, drowsiness or unconsciousness by illness or the treatment of that illness. It may even be due to the effects of substance misuse Best Interests (MCA) 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 non-exhaustive 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. (see Appendix 1 for further details) Acts of care or treatment - Section 5 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. Protection from liability is only offered if the care or treatment is necessary

7 and is proportionate to the individual circumstances for the person who lacks capacity. Code of Practice (MCA) -The Code will provide guidance to all those working with and/or caring for adults who lack capacity, including family members, professionals and carers. It describes their responsibilities when acting or making decisions with, or on behalf of, individuals who lack the capacity to do these things themselves. Those who will have a duty of care to a person lacking capacity, such as attorneys, deputies, IMCAs, professionals and paid carers must have regard to the Code. The Code of Practice is available at: Code of Practice (DOLS) - This Code of Practice provides guidance to anyone working with and/or caring for adults who lack capacity, but it particularly focuses on those who have a duty of care to a person who lacks the capacity to consent to the care or treatment that is being provided, where that care or treatment may include the need to deprive the person of their liberty. This Code of Practice is also intended to provide information for people who are, or could become, subject to the deprivation of liberty safeguards, and for their families, friends and carers, as well as for anyone who believes that someone is being deprived of their liberty unlawfully. This Code of Practice is available at : ionspolicyandguidance/dh_ Court appointed Deputies -The Act provides for a system of court appointed deputies which replaces the previous system of receivership in the existing Court of Protection. Deputies can be appointed to take decisions on welfare, healthcare and financial matters as authorised by the new Court of Protection (see below) but are not able to refuse consent to life-sustaining treatment. They are only appointed if the Court cannot make a one-off decision to resolve the issues. People appointed as receivers before October 2007 retain their powers concerning property and affairs after the implementation date in October 2007 and are treated as deputies after this time. Court of Protection - It has its own procedures and nominated judges. It can make declarations, decisions and orders affecting people who lack capacity and make decisions for or appoint deputies to make decisions on behalf of people lacking capacity. It can deal with decisions concerning both property and affairs, as well as health and welfare decisions. The Court of Protection is particularly important in resolving complex or disputed cases involving, for example, whether someone lacks capacity or what is in their best interests. The Court is based in London but cases can also be heard be Court of Protection Judges in courts across England and Wales. Decision maker - 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 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. This may be the lead clinician i.e. Consultant (who may be medical, non-medical,

8 dental etc) for a treatment decision or a Nurse or Allied Health Professional for a discharge decision. Excluded decisions- There are certain decisions which are excluded from the Act, where assessment identifies lack of capacity these decisions cannot be taken. These include decisions such as marriage or civil partnership, divorce, sexual relationships and voting. They also include decisions about treatment for mental disorder where someone is being detained and treated under Part 4 (Consent to Treatment) of the Mental Health Act which allows the person to be treated without their consent. Independent Mental Capacity Advocate -An IMCA will be someone appointed to support a person who lacks capacity but has no one to speak for them, such as family or friends. They will only be involved where decisions are being made about serious medical treatment or a change in the person s accommodation where it is provided by the National Health Service or a local authority. The IMCA makes representations about the person s wishes, feelings, beliefs and values, at the same time as bringing to the attention of the decision-maker all factors that are relevant to the decision. The IMCA can challenge the decision-maker on behalf of the person lacking capacity if necessary. Timely identification of the need to refer to an IMCA is crucial as any delay in doing so will cause delays in medical treatment, discharge from hospital or a placement in a care home. The IMCA service responsible for the patient depends on where the patient is at the time the decision needs to be made, not on where the patient normally resides. Lasting Power of Attorney (LPA) -The Act allows a person to appoint an attorney to act on their behalf if they should lose capacity in the future. Since October 2007 the Act has replaced the Enduring Power of Attorney (EPA) in relation to property and affairs, but the Act now allows people to empower an attorney make health and welfare decisions. Before it can be used an LPA must be registered with the Office of the Public Guardian (see below). EPAs created before October 2007 can be registered after the implementation date but it will not be possible to create EPAs after this time. Public Guardian - The Public Guardian has several duties under the Act and will be supported in carrying these out by an Office of the Public Guardian (OPG). The Public Guardian and his staff will be the registering authority for LPAs and deputies. They will supervise deputies appointed by the Court and provide information to help the Court make decisions. Research - Research involving, or in relation to, a person lacking capacity may be lawfully carried out if an appropriate body (normally a Research Ethics Committee) agrees that the research is safe, relates to the person s condition and cannot be done as effectively using people who have mental capacity. The research must produce a benefit to the person that outweighs any risk or burden.

9 Restraint The Act defines restraint as the use or threat of force where a person who lacks capacity resists, and any restriction of liberty or movement whether or not the person resists. Restraint is only permitted if the person using it reasonably believes it is necessary to prevent harm to the person who lacks capacity, and if the restraint used is a proportionate response to the likelihood and seriousness of the harm. In such circumstances section 5 of the Act gives protection from liability for the person needing to use restraint. Appropriate use of restraint falls short of deprivation of liberty, eg., preventing a person from leaving a ward because they would try to cross a road in a dangerous manner is likely to be seen as a proportionate restriction or restraint, similarly, locking a door to guard against immediate harm is unlikely, in itself, to amount to deprivation of liberty. 5. How to assess capacity (the ability to make an informed decision) 5.1. The Act sets out a two stage test that must be used to assess capacity: Stage One There are two basic questions that staff need to consider: Is there an impairment of or a disturbance in the person s mind or brain? Is the impairment or disturbance sufficient that the person lacks the capacity to make that particular decision? If an impairment or disturbance is identified, staff must offer help and support to the person to help them to make their own decision before moving onto stage two of the test (in line with key principle number two of the Act) Stage Two A person is deemed unable to make a decision if they cannot:- Understand information given to them about the decision Retain that information long enough to help make that decision Use or weigh up that information as part of the decision making process, or Communicate their decision, by talking, using sign language or even simple muscle movements like blinking an eye or squeezing a hand Decisions must be clearly recorded in the relevant patient notes The assessment must be documented on the Two Stage Test of Capacity form at appendix 1 and then filed in the notes within the current care episode. A copy of that assessment should also be faxed to the Safeguarding Team on

10 6. Guidance on the best interests decision making process 6.1. Consider the nature of the decision that needs to be made: It may be helful to consider the following questions; What are the circumstances surrounding the decision? Does it relate to life sustaining treatment? Why does the decision need to be made at this time? Are you the person that will need to carry out actions as a result of the decision? If so then it is likely that you are the decision maker in this situation. You should confirm with other members of the MDT that they agree that you are the decision maker. If you will not be carrying out the actions which result from the decision then who will be? You should ensure that they are involved in the best interest decision and agree who is the decision maker in the case Confirm that the person lacks capacity in relation to this particular decision: You should be satisfied that the person lacks capacity in relation to the specific decision. You should also consider if there is any likelihood of the person regaining capacity for this decision and if so can the decision be delayed until they can decide. If there is likelihood of the person regaining capacity then only decisions that are urgent in nature should be made in their best interest and other decisions should be delayed if at all possible. It is possible that someone lacks capacity for a particular decision but can contribute to the decision if they are offered support. You should consider ways in which the person can be supported to contribute to the decision and ensure that any possible support is offered List the available options: You should consider what the options are for the person in relation to the specific decision. The options should be the same as for anyone else who would need to make the same decision regardless of whether they are deciding for themselves or if it is a best interest decision. The option of simply doing nothing should always be considered in a best interest decision since the person could make this choice if they were deciding for themselves; i.e. a patient could decide to have no treatment for a medical condition or they could decide to return home with the same support as they had pre-admission. If you are making a formal best interest decision in a meeting then you should check that all those involved are happy that the list of options is exhaustive The Persons views:

11 Even though the person lacks capacity in relation to the specific decision it is imperative to determine what their views on the matter are. You should investigate whether a valid advanced decision to refuse treatment is in existence which relates to the decision. If this is the case then advice from the legal department should be sought before further action is taken. The person could have written an advanced statement of their wishes in relation to a decision. This latter statement is not legally binding but should be considered within the best interest decision and may tell you who the person wishes to have consulted on the matter. If neither of these statements exist then it may be possible to work out what the person s current wishes regarding the decision are by talking to them or observing their current behaviors. For example, it would be reasonable to believe that an elderly person with dementia who talks fondly of their home and who asks when they can return there is expressing a preference to return home in decisions concerning discharge destination. It may also be important to consider what the patients previous preferences and wishes were before they lost capacity in relation to the decision as this may be very different from their current expressed wishes. This can be investigated by talking to the people who know the patient well. Caution should be used though to ensure that information gained from friends and family are representative of the patient s views Other Relevant Persons views: You should also investigate if the patient has appointed a valid lasting power of attorney (LPA) who has powers to make decisions in relation to the decision. If so then this person must be consulted within the best interest decision making process and is effectively the decision maker in the case. For serious decisions where a valid LPA will be making the decision it is still good practice to hold a meeting so that the LPA can be given all of the relevant information to help them make a decision. Healthcare related decisions are classed as welfare decisions and as such an LPA for property and financial affairs would not give the appointee the necessary power to decide on the matter. In this case the appointee could be consulted as part of the best interest decision, if this is appropriate, but would not be the decision maker in the case. If an LPA is in existence then the appointee should produce documentary evidence which details the types of decisions they are appointed to make. If you are in any doubt about the validity of the LPA in relation to the particular decision needing to be made then advice should be sought from the legal department. If the person lost capacity before they were able to appoint an LPA to decide for them on welfare matters then it is possible that the court of protection has appointed a deputy to make these decisions on its behalf (known as a court appointed deputy). You should investigate with friends and family of the patient and other professionals involved with the patient if they are aware of the court appointing a deputee. If a deputy exists then they should be able to provide documentary evidence which details the types of decisions that they have the power to make. If the deputy has valid powers in relation to the decision which needs to be made then they must be consulted in the best interest decision making process and are effectively the decision maker. As for LPA s, it is still best practice to hold a meeting where there is a serious decision to be made. If you are in any doubt as to the existence of or the validity of a court appointed

12 deputyship then advice should be sought from the legal department. If there is neither a valid LPA nor court appointed deputy then it is necessary to investigate who else you can consult with on the decision in question. This may be family, friends, neighbours or informal carers. You need to consider if they are appropriate and willing to be consulted with. If this is the case then they can be consulted with via a best interest meeting for formal, serious decisions or they could be consulted with outside of a meeting for less serious decisions. It is important to explain the nature of the best interest decision making process to any one that you are consulting with so that they understand that they are not being asked to make the decision but are being asked for information which will help the decision maker. If there is no-one that is willing or appropriate to consult with except for paid carers or professionals and the decision relates to serious medical treatment or a potential change of address then an IMCA should be appointed. The IMCA must be allowed time to gather information on the case before a best interest meeting. It is then the IMCA s role to represent the patient in the meeting and provide information to the decision maker as to what the person would choose if they were able. If an IMCA has been appointed in a case then their views must be considered in the best interest decision Weighing up the circumstances relating to the decision: Once you know the views of the patient and of other relevant people then it is worth thinking about these views in relation to the options that you identified earlier. This will help you to come to a systematic and objective decision on which is the least restrictive option. It is helpful to weigh up the pros and con s or advantages and disadvantages of each option. This can be helpful in very contentious cases where there is not a clear shared view about what is in the patients best interest held by those at the meeting Deciding on the least restrictive option: Once you have considered all of the circumstances relating to the options available in the decision then it is necessary to work out which is least restrictive of the persons basic rights and freedoms. Some restriction may be necessary in order to protect the person from harm and this is acceptable as long as it is proportionate to the likelihood of that harm. The rationale for why a restriction is needed should be evident within the best interest decision making documentation. If two options would equally accomplish a satisfactory reduction of risk then the one that still allows the most freedom in terms of basic rights must be chosen. A consensus view is sometimes possible and this should be recorded. If it is not possible for a consensus view to be reached then the decision maker must make the final decision on what is in the person s best interest. Decision makers are protected from liability if they have robustly followed best practice for making the best interest decision and they have clearly documented their rationale for why they felt it was reasonable to believe that the option was the least restrictive The Best Interest Decision must be documented on the Best Interest Decision Support Tool at appendix 2 and then filed in the notes in the current

13 care episode. 7. Independent Mental Capacity Advocate 7.1. The IMCA service is provided for any person, aged 16 years or older, who has no one able to support and represent them, and who lacks capacity to make a decision about either: a long-term care move serious medical treatment adult protection procedures a care review An IMCA can only be appointed if the person who lacks capacity has nobody else who is willing and able to represent them or be consulted in the process of working out their best interests, other than paid staff (with the exception of adult protection procedures where the Local Authority can appoint an IMCA even if there are appropriate persons to consult with) The decision-maker in the case will need to determine if there are family or friends who are willing and able to be consulted about the proposed decision. If it is not possible, practical and appropriate to consult anyone, an IMCA should be instructed For patients located in the Trusts main site at the time the decision needs to be made a referral should be made to ReThink (Manchester s IMCA Service). See Appendix 3 for referral form For patients located in any of the Trusts beds on the Trafford site at the time the decision needs to be made a referral should be made to North West Advocacy Services (Trafford s IMCA Service). See Appendix 4 for referral form. 8. Training 8.1. The Trust has carried out a series of mandatory training sessions to inform both clinical and non-clinical staff of the requirements of the Act and to clarify the process that should be followed. Further training will be provided via the Clinical Mandatory training programme It will also form part of the induction training provided by the Trust for new staff. 9. Policy Review 9.1. This policy will be reviewed on a 2 yearly cycle, or before where necessary, to ensure any relevant changes in legislation are incorporated.

14 10. Monitoring The Trust will request routine reports from the IMCA service. 11. References/Links to other Policies and/or legislation Mental Capacity Act 2005 Mental Capacity Act Code of Practice The Lasting Powers of Attorney, Enduring Powers of Attorney and Public Guardian Regulations 2007 (S.I 2007 N o. 1253) CMFT Consent Policy CMFT Policy for Handling Complaints CMFT Research Governance Policy CMFT Resuscitation /DNR Policy CMFT Safeguarding Policies Mental Capacity Act 2005 Deprivation of liberty safeguards: Code of Practice to supplement the main Mental Capacity Act 2005 Code of Practice The Trust gratefully acknowledges assistance with the production of this policy to South Staffordshire Healthcare NHS Trust.

15 Appendix - 1 Mental Capacity Act: Two Stage Test of Capacity Patients Name Hospital Number Date of Assessment What is the decision in question? What are you assessing capacity for? Stage One o Does the person have an impairment of, or a disturbance in the functioning of the mind or brain? (Consider diagnosis, radiological/radiographic evidence, Mini Mental State Examination score.) IF NO ASSUME THAT THE PERSON HAS CAPACITY Is the impairment temporary/ fluctuating or permanent? If the impairment is temporary/fluctuating, can the decision be delayed until the individual s decision making ability has improved? Evidence Before deciding that someone lacks capacity to make a particular decision, it is important to take all practical and appropriate steps to enable them to make that decision themselves. Practical Steps Has the person been given all the relevant information needed to make the decision in question? How has this been done? Is there a choice? What are the options? PLEASE DOCUMENT THEM HERE Has information been given on the alternatives? Has the information been explained or presented in a way that is easier for the person to understand (consider any sensory difficulties)? How has this been done? Has the information been given in a suitable environment? Are there any particular times of the day when the person s understanding is better or particular locations where they may feel more at ease? Explain how this has been achieved; if not relevant why not? Can the decision be delayed until the circumstances are right for the person concerned? Evidence

16 Practical Steps Continued Is English the patient s first language? If not, was an interpreter used? PLEASE DOCUMENT NAME OF INTERPRETER HERE Can anyone else help or support the person to make the choice, or express their view e.g. relative, advocate, someone to assist communication? Who are they, how have they helped? Evidence Stage Two Does the person have a general understanding of what decision they need to make and why they are being asked to make it? How has the conclusion been reached? Does the person have a general understanding of the likely consequences of making, or not making, this decision? How has the conclusion been reached? Is the person able to understand, retain, use and weigh up the information relevant to this decision? What evidence has the person shown of reasoning? Evidence Can the person communicate their decision (by talking, using sign language or any other means)? Would the services of a professional (such as a speech and language therapist) be helpful? How has this been demonstrated? Outcome: If the person answers no to any of the four questions above they do not have capacity in relation to this specific decision. If the person lacks capacity in relation to this decision then you should proceed to making a best interest decision on behalf of the patient using the Best Interest Decision Support Tool. Name of assessor Signature Designation Name of 2 nd Opinion Signature Designation ONCE COMPLETE PLEASE FAX A COPY TO THE SAFEGUARDING TEAM ON THEN FILE IN THE PATIENTS NOTES WITHIN THE CURRENT CARE EPISODE.

17 Appendix 2 Mental Capacity Act: Best Interest Decision Support Tool for Medical Treatment or Discharge Planning Patients Name Hospital Number Date of Assessment Participants Designation Attended meeting Consulted outside of meeting Invited but not wishing to be consulted/ DNA Nature of the decision to be made: please note this form is decision specific and a separate form must be used for each different decision made. For example separate forms must be used for a decision on treatment and a decision on discharge even if one meeting is held. What is the proposed treatment, care plan or action? What is the decision to be made? Does the decision relate to life-sustaining treatment? Why does the decision need to be made?

18 Confirmation of lack of capacity: please see Mental Capacity Act: Two Stage Test of Capacity Date of capacity assessment Capacity assessed by Likelihood of regaining capacity? If so when? Can the decision be delayed? Can the person contribute to any part of the decision in question? What steps have been taken to support the person to participate? Available Options: List the options available in relation to the decision in question: (Not carrying out the care, treatment or action or not making the decision in question should be listed as one of the options) Are the group satisfied that these options are the same available to the person if they had capacity to make the decision for themselves? Yes / No The Person s Views What are the persons past and present wishes and feelings? Are there any valid advanced decisions? Does current behaviour indicate a preference? Are there any beliefs and values that would be likely to influence the decision if the person was making it themselves? Are there any other factors that the person would be likely to consider if they were able to do so? Has the person previously named anyone as a person to be consulted on the matter in question? Is there a donee of a valid lasting power of attorney relevant to this decision? If so document the name(s) here and ensure their views are recorded in the next section.

19 Other Relevant Peoples Views: Is there a court appointed deputee with powers related to this decision? If so document the name(s) here and ensure their views are recorded in this section. Has an IMCA been instructed in relation to this decision? I If so document the name(s) here and ensure their views are recorded in this section. NB see separate guidance on referral process to IMCA Name Relationship to person Date consulted Views on decision in question Name Relationship to person Date consulted Views on decision in question Name Relationship to person Date consulted Views on decision in question Name Relationship to person Date consulted Views on decision in question. Name Relationship to person Date consulted Views on decision in question

20 Circumstances relating to the decision: Consider all the relevant circumstances related to the decision including risks, costs and benefits. Consider the likelihood of the risks, costs and benefits. It may be helpful to consider each option in terms of advantages and disadvantages. Option One: Relevant circumstances: Advantages Disadvantages Option Two: Relevant circumstances: Advantages Disadvantages Option Three: Relevant circumstances: Advantages Disadvantages Option Four: Relevant circumstances: Advantages Disadvantages

21 Least Restrictive Option: Does one of the options offer a satisfactory solution to the identified risks in a way that is less restrictive of the person s rights and freedoms of action than the other options? Summary and recommendation for best interest decision: Is there a consensus view as to what is reasonable to believe is in the person s best interest? Action Plan: What needs to be done following the meeting? Action By Who Chairs/ key worker confirmation that this represents an accurate record of the meeting/ decision: Name:.Signature: Designation:.. Date: Second person s confirmation that this represents an accurate record of the meeting/ decision: Name: Signature: Designation: Date:

22 APPENDIX 3

23 APPENDIX 4 Client's Name Current Location (and prior residence if applicable) Telephone (and for prior residence) Referral for Independent Mental Capacity Advocacy (IMCA) Referral Form DOB: SERIOUS MEDICAL TREATMENT (MANDATORY IMCA INVOLVEMENT) Change in Residence (Mandatory IMCA involvement) Safeguarding Care Review Others Involved Any Family? None Inappropriate* Capacity ONLY TICK ONE Any Friends? None Inappropriate* *means they are either unwilling, or unable to be consulted or showing evidence that they do not have the best interests of the client Has Decision-specific Capacity been assessed using the 2-stage test? Yes No If yes, do they have capacity? Yes No Decision specifics: Referrer s name Referrer s Tel. Referrer s designation Referrer s team Decision Maker: Decision Maker s Telephone & Address

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