The Mental Capacity Act in everyday practice

The Mental Capacity Act in everyday practice Dr Oluwatoyin Sorinmade Consultant Older Adult Psychiatrist Interpersonal Therapist Trust Clinical Lead Mental Capacity Act Wednesday 12 October 2016

Better, Improved, Newer, Deeper understanding/application of MCA The first principle of the MCA is to assume that we all have the Mental Capacity to make decisions until proven otherwise Case Law is clear that An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and their consent MUST be obtained before treatment interfering with their bodily integrity is undertaken Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) [2015] UKSC 11 On appeal from: [2013] CSIH 3; [2010] CSIH 104 para 87 - http://www.bailii.org/uk/cases/uksc/2015/11.html http://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asp 2

Objectives of the session for GP s Improve skills and knowledge in seeking patients consent to care, assessing mental capacity and engaging in the best interests process Understand provisions in the Mental Capacity Act for transporting a person to hospital or care home where the individual lacks consenting capacity Increase understanding of the lawful process and clinical issues in administering medications covertly in care homes Increase understanding of the essence of Lasting Powers of Attorney Explore the implications of the Deprivation of Liberty Safeguards on death certification 3

Embedding the MCA Shifting our Thinking Essence of the Act to all: The MCA received royal assent in 2005 Enshrines in law the right of every citizen (over 16) in E&W to decision making autonomy i.e. to be able to exercise choice and to receive assistance to do so when their ability is limited: quite simply No decision about me without me Final Report of the Public Guardian Board, June 2012 Prescribes steps to be followed in arriving at decisions on behalf of individuals who are unable to exercise their decision making autonomy due to loss of mental capacity - makes provision relating to persons who lack capacity to make decisions Encompasses all decisions and the MCA is as much about our patients as it is about us Age based not diagnosis based legislation, enshrines common law position in statute Under the Act it is a criminal offence to wilfully neglect or ill treat an adult lacking mental capacity to make a required decision section 44(2) MCA 4

Mental Capacity Act and you Individual level: your decision making autonomy Patient care level: their rights presumption of mental capacity, maximum support, unwise decision your responsibilities can t neglect non-capacitous individual, best interests decisions protection you have respect decisional autonomy, follow valid and applicable ADRT, best interests process followed 5

Key issues of MCA The MCA is based on 5 principles A person (over 16) must be assumed to have capacity unless it is established that they lack capacity A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success A person is not to be treated as unable to make a decision merely because he makes an unwise decision An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests Before the Act is done or the decision is made, regard must be had to 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 6

MCA in everyday Practice Capacity is the gateway to the provisions of the MCA 2005- LBX and K, L,M [2013]EWHC 3230(Fam) Relevant Information is the key to mental capacity assessment Relevant Information + Mental State Relevant information: Understood Retained Used / Weighed Communicate decision Relevant information: The nature of the decision The reason why the decision is needed and - the likely effects of deciding one way or another, or making no decision at all Capacity assessors should not start with a blank canvas: The person under evaluation must be presented with detailed options so that their capacity to weigh up those options can be fairly assessed CC v KK & STCC [2012] EWCOP 2136 para 68 Best Interests decision where the individual Lacks decisional capacity 7

Consent to Treatment and Mental Capacity Dr Sunita Sahu Consultant in old age psychiatry

Mental Capacity ability to make a decision code 4.1 An Individual s ability to understand and retain information about the options available to them, weigh up the different sides of the argument and communicate their preference - what matters is their ability to carry out the processes involved in making the decision and not the outcome code para 4.2 Possession or lack of capacity at the time it needs to be made is judged on balance of probabilities MCA code para 4.10 Mental Capacity is decision specific as well as time specific 9

Mental Capacity Lack of Capacity means the individual has an impairment or disturbance that affects how their brain or mind works (diagnostic test) and; The impairment or disturbance affects them in such a way that they are unable to: understand information about the decision to be made ( relevant information ) code para 4.16, section 3(4) retain that information in their mind use or weigh that information as part of the decision-making process, or communicate their decision (by talking, using sign language or any other means) (functional test) s2(1) MCA, para 23.28 code of practice MHA It does not matter whether the impairment or disturbance is permanent or temporary 10 s2(2) MCA

Mental Capacity When do we need to assess Mental Capacity Act The starting assumption must be that the person has the capacity to make the specific decision code para 4.36 A mental capacity assessment is needed when a specific decision is required and a person s capacity is in doubt code para 4.34 The person s behaviour or circumstances cause doubt as to whether they have the capacity to make a decision Somebody else says they are concerned about the person s capacity code para 4.35 or The person has previously been diagnosed with an impairment or disturbance that affects the way their mind or brain works and it has already been shown they lack capacity to make other decisions in their life code para 4.35 11

Consent to Treatment and Mental Capacity A person (over 16 years) must be assumed to have capacity unless it is established that they lack capacity MCA section 1(2) An adult person of sound mind is entitled to decide which, if any, of the available forms of treatment to undergo, and their consent MUST be obtained before treatment interfering with their bodily integrity is undertaken Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) [2015] UKSC 11 On appeal from: [2013] CSIH 3; [2010] CSIH 104 para 87 - http://www.bailii.org/uk/cases/uksc/2015/11.html, http://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asp An adult patient who suffers from no mental in-capacity has an absolute right to choose whether to consent to medical treatment, to refuse it or to choose one rather than another of the treatments being offered. This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or even non-existent Re T. (ADULT: REFUSAL OF TREATMENT)[1993] Fam. 95 Para 102 Treating them without his consent or despite a refusal of consent will constitute the civil wrong of trespass to the person and may constitute a crime Re T. (ADULT: REFUSAL OF TREATMENT)[1993] Fam. 95 Para 102 For consent to be valid, it must be given voluntarily by an appropriately informed person who has the capacity to consent to the intervention in question. Acquiescence where the person does not know what the intervention entails is not consent DoH Reference guide to consent for examination or treatment. July 2009 Page 9 12

Consent to Treatment and Mental Capacity The healthcare professional should use specialist knowledge and experience and clinical judgement, and the patient s views and understanding of their condition, to identify which investigations or treatments are likely to result in overall benefit for the patient The healthcare professional should explain the options to the patient, setting out the potential benefits, risks, burdens and side effects of each option, including the option to have no treatment. The healthcare professional may recommend a particular option which they believe to be best for the patient, but they must not put pressure on the patient to accept their advice paragraphs 5(c) and 5(d) of the GMC guidance also gives further advice on what is expected from health professionals. http://www.gmc-uk.org/guidance/ethical_guidance/consent_guidance_index.asp pargraph5, Montgomery (Appellant) v Lanarkshire Health Board (Respondent) (Scotland) http://www.bailii.org/uk/cases/uksc/2015/11.html paragraph 78 Seeking consent is a process not an event 13

Best Interests If patient lacks capacity the next step is for decision maker to consider what would be in their best interests MCA code para 5.8 5.12 Balance sheet approach advocated by Courts This applies whether the decisions are life-changing events or everyday matters OPG Safeguarding Policy, May 2011 para 8.1. MCA Section 1(5), 1(6) If a Lasting Power of Attorney (or Enduring Power of Attorney) has been made and registered, or a deputy has been appointed, the attorney or deputy will be the decision-maker, for decisions within the scope of their authority MCA code para 5.8 Where the decision involves the provision of medical treatment, the doctor or other member of healthcare staff responsible for carrying out the particular treatment or procedure is the decision-maker MCA code para 5.8 14

Best interests process 15

Best Interests Process - food for thought In emergency medical situations it may not be practical or appropriate to delay the treatment while trying to help the person make their own decisions, or to consult with any known attorneys or deputies In these situations, urgent decisions will have to be made and immediate action taken in the person s best interests Even in these situations healthcare staff should try to communicate with the person and keep them informed of what is happening code para 3.6 see also s6(7) 16

The administration of medication within foodstuffs and the Mental Capacity Act Dr Adrian Treloar Consultant in old age psychiatry

Case example Jean is a 75 year old woman with severe dementia and paranoia. She is very distressed and is wandering the streets at night to avoid her persecutors. Extensive efforts to find social and supportive solutions have been tried and failed. If her psychosis persists she will have to leave home and go into care. She has always refused to take medicines, despite best efforts to persuade her. Her daughter now visits each day and puts medication in her sandwiches. With the treatment she remains at home and has an improved quality of life. Or Stan needs antibiotics for pneumonia etc etc 18

Principles (English Law) Administration of treatment without consent does not necessarily constitute battery Administration of treatment against a valid refusal does constitute battery Failure to apply appropriately the appropriate legislation (MCA or MHA may mean that a clinically appropriate action may constitute battery) BUT Those who lack capacity should not be denied the opportunity of good and effective treatments 19

Duty of care Health Workers have a duty of care towards those who lack capacity and should provide treatment to those who require it, even if they are unable to consent by virtue of incapacity i.e. not only can we provide treatment to such people but we must do so when it is appropriate Using the appropriate legal framework Covert medication may be the way in which we can deliver that duty Note that it is not only about lacking capacity: In people with schizophrenia or depression who are able to understand and learn new information but lack capacity to consent to medication covert medication is usually only appropriate in people whose mental incapacity is caused by an inability to learn and recall the imposition of medication etc IT MUST BE CLINICALLY APPROPRIATE AND REASONABLE ETC 20

Forms of consent Consent (covert drugs may be requested by a competent patient, especially for difficult to swallow medicines etc) Assent (covert drugs inappropriate) Dissent (covert drugs possibly appropriate) Refusal (covert drugs = assault) Which group of patients in a care home are most at risk of inappropriate treatment? 21

Section 6 restraint If D does an Act that is intended to restrain P, it is not an Act to which section 5 applies unless two further conditions are satisfied (2) The first condition is that D reasonably believes that it is necessary to do the Act in order to prevent harm to P (3) The second is that the Act is a proportionate response to: (a) the likelihood of P's suffering harm, and (b) the seriousness of that harm (4)For the purposes of this section D restrains P if he: (a) uses, or threatens to use, force to secure the doing of an Act which P resists, or (b)restricts P's liberty of movement, whether or not P resists 22

NICE and case law expect That we see the issue as important And that if it is done there is a best interest meeting with adequate records etc That may not necessarily mean an actual meeting, but does mean consultation with key people, including the relevant persons representative and also care staff etc 23

Therefore your clinical process is Assess Is it necessary? Are there alternatives? If the treatment is not given, will there be harm? Identify what is the decision Ensure that if there is an ADRT that it is not applicable or is not valid Assess capacity to make that decision Use LPA or Best Interests process Document Suggest to the care home that their policy on this needs to exist (perhaps look a little like the Oxleas one!) 24

Covert Medication Covert medication may be appropriate for those individuals who have been assessed as lacking capacity to consent to treatments and who will suffer harm if those medications are not received Covert administration of medication occurs when medication has been deliberately disguised, usually in food or drink, in order that the person does not realise that they are taking it There is therefore, an element of deception in this Act, which would in normal circumstances be considered unethical and probably unlawful. It is therefore, only to be used as a last resort after the decision has been arrived through the best interests process as outlined in the Mental Capacity Act 2005 25

Covert Medication These non-capacitous patients may be receiving treatment under the MHA (least restrictive option) or MCA (less restrictive option) Covert medications cannot be given under MCA in pursuit of a treatment for which the patient has made a valid and applicable ADRT 26

DoLS and Covert medication Treatment without consent (covert medication) is an interference with the right to respect for private life under Article 8 of the ECHR and such treatment must be administered in accordance with a law that guarantees proper safeguards against arbitrariness Treatment without consent is also potentially a restriction contributing to the objective factors creating a DoL within the meaning of Article 5 of the Convention. Medication without consent and covert medication are aspects of continuous supervision and control that are relevant to the existence of a DoL. Safeguards by way of review are essential AG v BMBC & Anor [2016] EWCOP 37 (District Judge Bellamy) para 25 &38 The existence of such treatment must be clearly identified within the assessment and authorisation AG v BMBC & Anor [2016] EWCOP 37 (District Judge Bellamy) para 43 Where there is a covert medication policy in place or indeed anything similar there must be full consultation with healthcare professionals and family best interests process AG v BMBC & Anor [2016] EWCOP 37 (District Judge Bellamy) para 43 Any change of medication or treatment regime should also trigger a review where such medication is covertly administered AG v BMBC & Anor [2016] EWCOP 37 (District Judge Bellamy) para 43 27

The Mental Capacity Act in everyday practice Dr Oluwatoyin Sorinmade Consultant Older Adult Psychiatrist Interpersonal Therapist Trust Clinical Lead Mental Capacity Act Wednesday 12 October 2016

Lasting Power of Attorney (LPA) A power of attorney is a legal document that allows a person over 18 to give another person authority to make a decision on their behalf Under a power of attorney, the chosen person (the attorney or donee) can make decisions that are as valid as one made by the person (the donor) Note however that: LPAs cannot give attorneys the power to demand specific forms of medical treatment that healthcare staff do not believe are necessary or appropriate for the donor s particular condition MCA Code of Practice para 7.28 29

Lasting Power of Attorney Under a power of attorney, the chosen person (the attorney or donee) can make decisions that are as valid as one made by the person (the donor) subject to conditions MCA Code para 7.1 LPAs cannot give attorneys the power to demand specific forms of medical treatment that healthcare staff do not believe are necessary or appropriate for the donor s particular condition MCA Code of Practice para 7.28 Anything done under the authority of the LPA must be in the person s best interests MCA code para 7 They must also respect any conditions or restrictions that the LPA document contains MCA code para 7.18 Anyone who doubts that the attorney is acting in the donor s best interests can apply to the Court of Protection for a decision MCA Code of Practice para 7.31 30

Lasting Power of Attorney (LPA) If the LPA is to be used: Check whether the person has the capacity to make that particular decision for themselves. If they do: a personal welfare LPA cannot be used the person must make the decision a property and affairs LPA can be used even if the person has capacity to make the decision, unless they have stated in the LPA that they should make decisions for themselves when they have capacity to do so MCA code para 7 Ensure it is registered Avail yourself of its content as donor might have set a variety of conditions and limits on the powers given to the attorney 31

Lasting Power of Attorney (LPA) Note: Anything done under the authority of the LPA must be in the person s best interests MCA code para 7 And: They must also respect any conditions or restrictions that the LPA document contains MCA code para 7.18 Anyone who doubts that the attorney is acting in the donor s best interests can apply to the Court of Protection for a decision MCA code para 7.31 32

Transporting a non-capacitous individual using provisions of the MCA Section 135 and 136 of the MHA 1983 are the exclusive powers available to police officers to remove persons who appear to be mentally disordered to a place of safety Sections 5 and 6 of the MCA 2005 do not confer on police officers authority to remove persons to hospital or other places of safety for the purpose set out in sections 135 and 136 of the MHA 1983 Sessay v South London and Maudsley NHS and the commissioner of Police for the Metroplis [2011] EWHC 2617 (QB) 33

Transporting a non-capacitous individual using provisions of MCA Transporting a person who lacks capacity from their home, or another location, to a hospital or care home will not usually amount to a deprivation of liberty (for example, to take them to hospital by ambulance in an emergency) Even where there is an expectation that the person will be deprived of liberty within the care home or hospital, it is unlikely that the journey itself will constitute a deprivation of liberty so that an authorisation is needed before the journey commences In almost all cases, it is likely that a person can be lawfully taken to a hospital or a care home under the wider provisions of the Act, as long as it is considered that being in the hospital or care home will be in their best interests DoLS Code of Practice para 2.14 In some cases, there may be no alternative but to move a non-capacitous individual to a place of safety. Such a move would normally require the person s formal consent if they had capacity to give, or refuse, it. In cases where a person lacks capacity to consent, section 5 of the Act allows carers to carry out actions relating to the move (including restraint) as long as the Act s principles and the requirements for working out best interests have been followed. This applies even if the person continues to object to the move. MCA Code of Practice para 6.11 34

Restraint- MCA Section 6 Section 6 of the Act places clear limits on the use of force or restraint by only permitting restraint to be used (for example, to transport the person to their new home) where this is necessary to: 1. protect the non-capacitous person from harm and is a proportionate response to the risk of harm 2. the act is a proportionate response to: a) the likelihood of the patient suffering harm, and b) the seriousness of that harm Restraint occurs when the person doing the Act: a) uses, or threatens to use, force to secure the doing of an Act which the patient resists, or b) restricts the patients liberty of movement, whether or not the patient resists Where the restraint amounts to deprivation of liberty it may be necessary to seek an order from the Court of Protection to ensure that the journey is taken on a lawful basis DoLS code 2.15 35

DoLS and Death If individual subject to DoLS dies = death in custody. The Coroners and Justice Act 2009 requires an inquest to be held when someone dies in a state of detention GPs involvement Verification of death Conveyance of the deceased Certification of death Verification of death Whomever verifies the death should inform the coroner s office; directly during office hours, or via the Police control Room out of hours who will inform the duty Coroners officer https://www.wessexlmcs.com/deprivationoflibertysafeguardingdols 36

DoLS and Death Verification of death Whomever verifies the death should inform the coroner s office; directly during office hours, or via the Police control Room out of hours who will inform the duty Coroners officer Conveyance of the deceased If an anticipated death and in the absence of concerns from family or carers or reasons why the death should be reported e.g. falls, surgery etc, the deceased could go to an undertaker whilst awaiting the GP to discuss with the coroner If not anticipated death or there are concerns from family or carers, this should be escalated by the police, as a sudden death ; they could liaise with the on duty coroner to determine where the deceased should go (coroner s mortuary or undertaker). Of note: undertakers should be informed that they should not do anything to the body in terms of embalming prior to the confirmation from the coroner that no PM is required https://www.wessexlmcs.com/deprivationoflibertysafeguardingdols 37

DoLS and Death Certification of death For all patients subject to DOLS the coroner will contact the patient s GP to discuss with them; even if it was not the GP who reported the death to the coroner If satisfied that they are content with the cause of death the coroner will issue the death certificate because the patient is on DOL If not satisfied the death may be subject to an inquest https://www.wessexlmcs.com/deprivationoflibertysafeguardingdols RCGP [PDF]A Guide - Resident who dies whilst under a DoLS (Deprivation of... 38

Sexuality in Dementia 88 year old man with severe FTD found with his trouser and pant at his ankle in the room of an 86 year old woman also with severe AD dementia lying on the bed, not wearing her pant and with her skirt pulled up to the waist no evidence that anything happened Relatives of either party quite upset by the event and are thinking of reporting the care home to the regulatory authority 89 year old man and 78 year old woman both with severe AD dementia, fond of following each other around the care home as they mis-identify each other as husband and wife, found kissing in the man s bedroom Relatives of both parties unhappy but think that they should be allowed to follow their heart 79 year old man with severe Vascular dementia, very disinhibited. Regularly gropes his carers (in the care home) sexually whilst verbalising his wish to have sex with them. Has notable expressive dysphasia but still manages a few words to express his wish to have sex Unable to procure sex for himself as at risk of exploitation and abuse amongst others given the severe decline in multiple spheres of his mental activity 39

Consent to sexual Acts A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or disturbance in the functioning of, the mind or brain" Section 2(1) Mental Capacity Act (England and Wales) So capacity to consent to sexual intercourse depends upon a person having sufficient knowledge and understanding of the nature and character the sexual nature and character of the act of sexual intercourse, and of the reasonably foreseeable consequences of sexual intercourse, to have the capacity to choose whether or not to engage in it, the capacity to decide whether to give or withhold consent to sexual intercourse Re MM; Local Authority X v MM & KM [2007] EWHC 2003 (Fam) The jurisprudence has consistently interpreted consent as requiring a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act. The jurisprudence also establishes that there is no substitute for the complainant s actual consent to the sexual activity at the time it occurred. It is not sufficient for the accused to have believed the complainant was consenting: he must also take reasonable steps to ascertain consent, and must believe that the complainant communicated her consent to engage in the sexual activity in question R. v. J.A., 2011 SCC 28, [2011] 2 S.C.R. 440 Similar requirement for contemporaneous consent to sex in other Jurisdictions http://www.dailymail.co.uk/news/article-3051134/jury-iowa-man-not-guilty-abusing-wife-dementia.html?ito=email_share_mobile-masthead http://metro.co.uk/2015/06/22/exclusive-87-year-old-man-is-banned-from-kissing-his-wife-at-dementia-care-home-where-she-lives-5257634/ 40

Consent to sexual acts - No exceptions Right to respect for private life and family life Everyone has the right to have respect for his private and family life, his home and his correspondence There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Article 8 European Convention on Human Rights Rights of People with disabilities Signatories take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity Signatories: provide for appropriate and effective safeguards to prevent abuse United Nations Convention on the Rights of People with Disabilities (UNCORPD, 2012), Article 12.3, 12.4 Precedent autonomy: advance statement of wishes, Lasting Power of Attorney Does not cover future intimacy Best interests decisions for non-capacitous individuals does not cover: consenting to marriage or a civil partnership consenting to have sexual relations amongst others section 27(1) MCA England and Wales Contemporaneous consent to sex still required in all civilised society 41

Embedding the Mental Capacity Act Shifting our Thinking Culture promotion - always ask yourself- With what Authority am I attending to this individual? Their consent MCA MHA Court Order A combination of the above Common law Health and Social Care Act 42

Summary Mental Capacity Act The MCA is not about complicating care MCA is about ensuring autonomy/safe and lawful care MCA applies to all decisions It is about [decisional autonomy] enshrining in law the rights of every citizen (over 16) in E&W to exercise choice and to receive assistance to do so when their ability is limited: quite simply No decision about me without me Final Report of the Public Guardian Board, 2012/13 Under MCA: a person is presumed to have capacity in the relevant regard unless it is established that they do not and if they have capacity then they also have autonomy to make a decision which may be unwise or which others do not agree with Holman J in Re SB [2013] EWHC 1417 (COP) paragraphs 9 and 10 Consent simply put is saying Yes or No to what I have understood Embed the culture of always asking oneself what authority do I have to carry out an Act on, and or, on behalf this person MCA applies to us in much the same way as it applies to our patients 43

An illustration video and exercise https://www.youtube.com/watch?v=ccz5x0z6egc&feature=youtu.be Self help web site planning for future care and treatment: www.mydecisions.org.uk Exercise Can I ask someone to kindly suggest a 6 or 7 letter word? We will use the word as an acronym to summarise what we have learnt today 44

Thank you Dr Oluwatoyin Sorinmade Trust Clinical Lead Mental Capacity Act oluwatoyin.sorinmade@oxleas.nhs.uk 0208 629 4900 Dr Sunita Sahu Consultant Psycho Geriatrician Sunita.Sahu@oxleas.nhs.uk 0208 836 8521 Dr Adrian Treloar Consultant in Old Age Psychiatry Adrian.Treloar@oxleas.nhs.uk 0208 462 0170