Mental Capacity Act 2005 Decision making in relation Decision making in relation to people who lack capacity
Background to the Act February 1995 Law Commission Report on Mental Incapacity as part of 4 th programme of law reform It is widely recognised that, in this area, the law as it now stands is unsystematic and full of glaring gaps. It does not rest on clear or modern foundations of principle. It has failed to keep up with social and demographical changes. It has also failed to keep up developments in our understanding of the rights and needs of those with mental disability
Background to the Act Increasing number of older people in our population who are now surviving with impaired capacity Recommended that the existing law should be replaced with a carefully designed and well- constructed legal basket Report annexed a draft Bill, some of which is reflected in the 2005 Act.
Background to the Act 1999 Government publication Making Decisions 2003 draft Mental Incapacity Bill which was subject to scrutiny by a Joint Committee of both Houses November 2003 Joint Committee Report February 2004 Government response Bill introduced on 17 June 2004 Royal Assent on 7 April 2005 Some provisions in force April 2007 The remaining provisions in force October 2007
Not covering Mental Health Act 1983, as amended Also not covering the part of the MHA which amends the MCA to permit detention of people who lack capacity where that is in their best interests Also not covering the provisions on research there is guidance on this in the Code and further guidance is being prepared on this which will be available on DH website in due course www.dh.gov.uk
Introduction to what the Act does In part intended to codify the common law Balance an individuals right to make decisions for themselves with their right to be protected from harm if they lack capacity Some substantive changes Only generally applies in relation to people who are 16 and over Day to day decisions and more serious decisions buying house, whether to consent to surgery but not certain decisions eg marriage, voting etc
Basic principles section 1 Presumption of capacity Must take all practicable steps to help person make decision or do act before treat as lacking capacity A person is not to be treated as unable to make a decision because his decision is unwise Best interests more important principle Least restrictive option
Lack of capacity section 1(2) a person lacks capacity in relation to a particular matter if at the material time he is unable to make a decision for himself in relation to that matter because of an impairment of, or disturbance in, the functioning of the mind or brain
Lack of capacity section 2 Cannot be established merely by reference to age, appearance or a condition or behaviour which might prompt unjustifiable assumptions about capacity The assessment must be decision specific
Inability to make a decision section 3 An inability to make a decision is defined as an inability - to understand the information relevant to the decision to retain that information (even for a short period) to use or weigh information as part of the process of making the decision to communicate the decision (by any means)
Best interests section 4 the person s past and present wishes and feelings, beliefs and values must be considered Where possible suitable people (relative, close friend, carer, LPA, deputy) must be consulted about the person s best interests Decisions must not be made on the basis of unjustified assumptions based on the person s age, appearance, condition etc
Best interests continued Must consider all relevant circumstances of which aware and which it is reasonable to regard as relevant As far as possible, must permit and encourage the person to participate i t as fully as possible in any act done or decision made affecting him, or improve his ability to participate p as fully as possible It is sufficient if the person doing the Act/taking the decision i reasonably believes the Act/decision to be in the person s best interests
Protection for people providing care and treatment section 5 A person will be protected from liability (e.g. battery/assault) if they do an act in connection with the care or treatment of a person who lacks capacity to consent or refuse to consent if (a) before doing the act, D takes reasonable steps to establish whether P lacks capacity in relation to the matter in question, and (b) when doing the act, D reasonably believes (i) that P lacks capacity in relation to the matter, and (ii) that it will be in P s best interests for the act to be done. Not exempted from liability for negligence in relation to the care or treatment
Exceptions to principle that the decision i maker will determine best interests Where the patient has given someone (the donee) a lasting power of attorney (LPA) to make decisions on their behalf Where the court has appointed a deputy to make the decision in question (this may be the exception rather than the rule regarding healthcare decisions). Where the court has made the decision in relation to the patient or ruled as to the legality of a proposed decision (sections 15 and 16) In relation to decisions about medical treatment - where In relation to decisions about medical treatment where the person has made a valid and applicable advance decision
Advance Decisions medical treatment sections 24-26 Person 18 and over Can withdraw any time No need to be in writing but evidences decision Must be in writing and be signed and witnessed if to cover life-sustaining i i treatment t t must say so clearly While capable Refuse specified medical treatment in relation to future time when lose capacity If valid and applicable, has same effect as decision i made when have capacity
Independent Mental Capacity Advocates Must be instructed and consulted for people with no-one else to support them whenever - NHS body proposing serious medical treatment defined in regulations NHS body/local authority proposing accommodation (or change) in hospital (more than 28 days) or care home (more than 8 weeks) May be instructed care reviews when no-one else to consult or adult protection cases whether or not anyone else to consult
Lasting Powers of Attorney A person may decide to give another person authority to make decisions on their behalf should they lose capacity The Power of Attorney is the legal document which enables the other person to do so The LPA replaces the former Enduring Power of Attorney so that no new EPAs can now be made (they can however continue, but will need to be registered once the EPA thinks that t the donor lacks capacity) LPAs can cover a wider range of decisions in relation to a person who lacks capacity (EPA only covered property p and finance decisions)(lpa can also cover personal welfare decisions e.g. consent to medical treatment)
LPAs continued Can have different Attorneys in relation to different matters jointly, jointly and severally etc There are prescribed forms to use to create LPAs and to register EPAs and LPAs. EPAs and LPAs in relation to property and finances can be used while the donor still has capacity, as long as the donor does not say otherwise in the LPA Personal welfare LPAs can only be used once the donor lacks capacity to make the relevant decision Attorneys making decisions under an LPA or EPA must follow the Act s principles and act in the donor s best interests
LPAs continued Duties under the law of agency apply to attorneys of LPAs and EPAs (see code chapter 7.58 7.68) Decisions by courts on EPAs may also affect how people use LPAs Attorneys acting under an LPA have a legal duty to have regard to the Code, those acting under EPA do not, but helpful guidance
Creating an LPA Only adults over 18 can create an LPA Attorney must be willing to act Must have capacity when make LPA Certain formalities apply e.g. in writing in statutory form LPAs must be at least 18 Can be an individual or trust corporation for property and affairs LPAs but not for personal welfare LPAs Must register LPAs with Office of Public Guardian (OPG) prescribed form
LPA decisions personal welfare Examples where P should live and who with, day to day care, who may have contact with, medical treatment decisions, social activities, whether should have community care assessments, correspondence and papers, right of access to personal information about donor, complaints about donors treatment not exhaustive Donor can add conditions and restrictions LPAs intended d to authorise an attorney to make decisions i about life-sustaining treatment must specify this Cannot consent to medical treatment if the donor has made a valid and applicable advance decision i to refuse that treatment
LPA decisions property and affairs If not restricted by donor then the attorney will be able to make decisions about buying and selling property, opening and closing bank accounts, giving access to financial information, claiming, receiving and using benefits, receiving any income for donor, dealing with tax affairs, paying mortgage and expenses, insurance, investing, making limited gifts on donors behalf, paying for private healthcare etc etc not exhaustive Attorney must make decisions personally must specify if want Attorney to be able to instruct specialists Can appoint someone to go through accounts with the attorney to ensure managing affairs properly include in LPA
LPAs and Court of Protection Determine whether LPA is valid Give directions about using the LPA Remove and attorney (e.g. if not acting in best interests) Clarify meaning Prevent registration of LPA Order attorneys to produce records of dealings with donor s affairs Widen attorney s powers
Court of Protection Specialist court set up by section 45 to deal with decision making for adults (and in a few cases children) Replaces old court of the same name which only dealt with property and financial i affairs New court also has jurisdiction to deal with decisions about healthcare and personal welfare Superior court of record and able to establish precedent Same powers, rights, privileges and authority as High Court
Court of Protection Court must apply the statutory principles and must make decisions in the best interests of the person who lacks capacity to make the specific decision Who applies? Depends NHS Trust, family member, person who is thought to lack capacity Permission will usually be required (section 50) unless person listed in Act or Court of Protection Rules Court will consider connection, reasons, benefit to P and whether benefit could be achieved in another way Will usually be a fee for applications to the Court Difficult decisions, disagreements, ongoing decisions
Court of Protection Powers to decide whether a person has capacity to make a particular decision Make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity Appoint deputies to made decisions for people lacking capacity Decide whether an LPA or EPA is valid Remove deputies or attorneys who fail to carry out their duties properly
Deputies Court may appoint a deputy to take decisions in relation to a person who lacks capacity as agent duties Statutory principles apply On-going decision making Court should decide but if necessary to appoint limit it scope and duration Usually family member could be independent OPG panel of professional deputies re property and affairs Over 18, willing, individual id or trust t corp. Cannot make decisions to refuse life-sustaining treatment
Code of Practice Statutory force legal duty Attorney under an LPA Deputy appointed by Court of Protection Independent Mental Capacity Advocates Those who are carrying out research approved in accordance with the Act Those acting in a professional capacity for, or in relation to, a person who lacks capacity e.g. nurses, doctors, social care staff, housing workers, police officers, advice workers(?) Those who are being paid for acts for, or in relation to, a person who lacks capacity e.g. care assistants
Code of Practice The legal duty to have regard to the Code, rather than to comply with it, but anyone who fails to comply will be expected to give good reasons for departing from the code Failure to comply pycan be used in evidence in court or tribunal proceedings The Act applies to everyone who looks after people who may lack capacity, including family and unpaid carers but these are not legally required to have regard to the Code. Helpful l guidance.
Other guidance The Code is not an exhaustive guide or complete statement of the law. Other materials have been produced by the Ministry of Justice, the Department of Health and the Office of the Public Guardian to help explain the Act from different perspectives - http://www.justice.gov.uk/whatwedo/mentalcapacity.htm http://www.publicguardian.gov.uk/ http://www.dh.gov.uk/en/advancesearchresult/inde x.htm?searchterms=mental+capacity+act Also signposts to other information sources in the Code see footnotes and Annex A to the Code