WORCESTERSHIRE MENTAL HEALTH PARTNERSHIP NHS TRUST MENTAL CAPACITY ACT 2005 SUMMARY AND GUIDANCE FOR STAFF

WORCESTERSHIRE MENTAL HEALTH PARTNERSHIP NHS TRUST MENTAL CAPACITY ACT 2005 SUMMARY AND GUIDANCE FOR STAFF

Worcestershire Mental Health Partnership NHS Trust Policy Data Unique Identifier: CP0096 Ratified by: Governance Committee Ratification Date: 12th October 2009 Review Interval: Three Years Version Update: October 2009 Review Date: October 2013 Owner: Director of Medical Development Responsible Forum: Mental Health Act Monitoring Group Document Type: Clinical Policy Superseded Policy: Search Criteria If printed, copied or otherwise transferred from its originating electronic file, this document must be considered to be an uncontrolled copy. When documents are updated, notification will be circulated throughout the organisation. Policy amendments may occur at any time and you should always consult the PDF file held on the Trust s Intranet.

Contents Page 1 Introduction 2 2 Purpose 2 3 Scope 2 4 Five Key principles 2 5 Assessing lack of capacity 3 6 Independent Mental Capacity Advocate 4 7 Factors which may affect capacity 5 8 Best interests 6 9 Restraint/ deprivation of liberty 8 10 Ill-treatment 8 11 Research 8 12 Provisions implemented in the second phase [October 2007] 9 Appendix 1 - Assessment guidance 10 Appendix 2 - Worcestershire Mental Capacity Act 2005 Checklist 13 Appendix 3 IMCA Referral Form Herefordshire & Worcestershire 15 Appendix 4 - Best interests guidance 19 Mental Capacity Act 2005 and the Code of Practice: www.dca.gov.uk/menincap/legis.htm (Department of Constitutional Affairs) 1

1 Introduction 1.1 The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who may not be able to make their own decisions. It makes it clear who can take decisions in which situations and how they should go about this. It enables people to plan ahead for a time when they may lose capacity. 1.2 The Act enshrines in statute current best practice and common law principles concerning people who lack mental capacity and those who take decisions on their behalf. It provides for reform and updating of the current statutory schemes for enduring powers of attorney and Court of Protection receivers. 1.3 A national Code of Practice has been drawn up and forms the basis for this guidance. 2 Purpose 2.1 We have a key role in helping and supporting people with impaired mental functioning to understand what decisions need to be made and why, and what the consequences of those decisions are. We are sometimes the only people in a position to provide information to service users about the options available to them, or where they can get other help and or advice. This guidance should increase staff awareness of the different options available to people to help them in this situation. 2.2 We also need to be able to determine a person s mental capacity in relation to the decisions they face both throughout the adult care process and more widely in their lives. This guidance helps staff to understand the factors that affect capacity. 3 Scope This guidance is for information for staff, and should be read in conjunction with the other related policies highlighted in the text. 4 Five key principles Assume capacity unless it is proved otherwise Give all appropriate help before concluding someone cannot make their own decisions Accept the right to make what might be seen as eccentric or unwise decisions 2

Always act in the best interests of people without capacity Decisions made should be the least restrictive of their basic rights and freedoms 5 Assessing lack of capacity 5.1 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 decision-specific test. No one can simply be labelled incapable as a result of a particular medical condition or diagnosis. It is intended that anyone involved in the care of an individual should be able to use the test to determine whether there is capacity in relation to the decision in question - Appendix 1. The date, the nature of the decision in question and the outcome of any assessment should be recorded, both as part of the tracking of the decision making process and as a possible (but not definitive) guide for the future Appendix 2. 5.2 Defining a lack of capacity 5.2.1 A person lacks capacity in relation to a matter if at the material time s/he is unable to make a decision for him/herself in relation to the matter because of an impairment, or a disturbance in the functioning, of the mind or brain. 5.2.2 It does not matter whether the impairment or disturbance is permanent or temporary. 5.2.3 A lack of capacity cannot be established merely by reference to: a person's age or appearance, or a condition, or an aspect of their behaviour, which might lead others to make unjustified assumptions about their capacity. Any question as to whether a person lacks capacity must be decided on the balance of probabilities. 5.3 Inability to make decisions A person is unable to make a decision for him/herself if s/he is unable to meet any one of the following criteria: understand the information relevant to the decision, 3

retain that information, use or weigh that information as part of the process of making the decision, or communicate their decision (whether by talking, using sign language or any other means). 5.4 A person is not to be regarded as unable to understand the information relevant to a decision if s/he is able to understand an explanation of it given to him/her in a way that is appropriate to their circumstances (using simple language, visual aids or any other means). 5.5 The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him/her from being regarded as able to make the decision. 5.6 The information relevant to a decision includes information about the reasonably foreseeable consequences of: deciding one way or another, or failing to make the decision. Remember however that capacity should be presumed unless there is clear evidence to the contrary. 6 The Independent Mental Capacity Advocate 6.1 The role of the Independent Mental Capacity Advocate (IMCA) is introduced for the first time in the Act, and is crucial in helping to determine the preferences of someone who lacks capacity at specific points in their life when an important decision needs to be made. POHWER have been appointed as IMCA Provider for Herefordshire & Worcestershire. Details of this service, the situations in which it must or may be used, eligibility, and how to access the service, can be found in on the POhWER web site: http://www.pohwer.net/our_services/herefordshire_.html IMCA can be contacted by telephone on 0845 223 0443. A copy of the IMCA referral form is attached at Appendix 3. 6.2 At key stages in life, such as a change of accommodation or the need for serious medical treatment, the statutory agencies providing care for adults in have a duty to 4

provide suitable independent specialist advocates for people who lack mental capacity. These advocates must be able to identify as far as possible the service user s views and preferences, and present them to those responsible for providing care. 6.3 The duty is triggered when the proposed move in question is: To or between hospitals for a period likely to exceed 28 days, or To or between care homes for a period likely to exceed eight weeks. There is a similar duty where serious medical treatment may be provided, withdrawn or withheld. The criteria for serious medical treatment are: there is a fine balance between the benefits and the risks, or the choice between treatments is finely balanced, or what is proposed would be likely to involve serious consequences for the patient. The only situation in which the duty to seek advice from an IMCA could be dispensed with is where the proposed treatment needs to be provided as a matter of urgency, for example to save the person s life or prevent a serious deterioration in his/her condition. 6.4 The commissioners have the power to appoint an advocate in Adult Protection procedures, where protective measures are being put in place and the person concerned lacks capacity. Where these criteria are met, there is a duty to consider the provision of an advocate. The individual lacking capacity may be either the abused or the alleged abuser. They may not necessarily be unbefriended (i.e. having no friend or family member able and/or willing to represent their best interests or preferences), but it may be appropriate to have an entirely independent advocate for them. 6.5 In addition the commissioners may provide an advocate for a care review where they made the current placement arrangement, the service user has lost capacity, and there is no one else appropriate to consult. 6.6 The IMCA will record the referral on their Inform system. 7 Factors which may affect capacity 7.1 A person s mental capacity can vary or be temporarily impaired due to mood or depression. In these circumstances, it may be possible to put off a decision until such 5

time as the person has regained capacity. 7.2 A person may have the capacity to make some decisions but not others. We must weigh up a person s capacity against the specific decision that needs to be made. For example a person who cannot weigh up the implications of entering long term care might still have the capacity to make a choice about which home they would prefer. 7.3 A lack of information. We need to make sure that any information relevant to the decision is provided in a format that the person can understand. 7.4 Pressure. Carers or other family members may sometimes exert undue pressure when the person being cared for is actually capable of making their own decisions or where expert help may help them do so. 7.5 A lack of trust. A person may feel anxious about dealing with staff from social services, so we must ensure that they have access to independent support, advice or advocacy in these circumstances. 8 Best Interests 8.1 The Act provides a 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, carers and family members gain a right to be consulted. 8.2 Checklist. (See also Appendix 4). In determining for the purposes of this Act what is in a person's best interests, the person making the determination must not make it merely on the basis of: the person's age or appearance, or a condition of his/hers, or an aspect of his/her behaviour, which might lead others to make unjustified assumptions about what might be in his/her best interests. 8.3 They must consider all the relevant circumstances and, in particular, take the following steps. S/he must consider: whether it is likely that the person will at some time have capacity in relation to the matter in question, and 6

if it appears likely that s/he will do so, when that is likely to be. S/he must, so far as reasonably practicable, permit and encourage the person to participate, or to improve his/her ability to participate, as fully as possible in any act done for them and any decision affecting them. 8.4 In conjunction with an IMCA where appropriate: S/he must consider, so far as is reasonably ascertainable: a b c 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. S/he must take into account, if it is practicable and appropriate to consult them, the views of: a b c d 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/her welfare, any done of a lasting/enduring power of attorney granted by the person, and any deputy appointed for the person by the court, as to what would be in the person s best interests. 8.5 The duties imposed in 7.1 above also apply in relation to the exercise of any powers which: may be exercised under a lasting/enduring power of attorney, or may be exercised by a person under this Act where s/he reasonably believes that another person lacks capacity. 8.6 In the case of an act or a decision by a person other than the court, it is sufficient if (having complied with the requirements of section 4.2 of the Act in relation to best 7

interests) s/he reasonably believes that what s/he does or decides is in the best interests of the person concerned. 8.7 "Relevant circumstances" are those which: the person making the determination is aware of, and it would be reasonable to regard as relevant. 9 Restraint/deprivation of liberty 9.1 Section 6 of the Act defines restraint as the use or threat of force where an incapacitated person 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 incapacitated person, and if the restraint used is proportionate to the likelihood and seriousness of the harm. 9.2 Section 6(5) makes it clear that it does not provide any protection for an act depriving a person of his or her liberty within the meaning of Article 5(1) of the European Convention on Human Rights. 9.3 The Mental Health Act, amended in 2007, includes an amendment to the Mental Capacity Act which sets out the procedure to safeguard the interests of someone who lacks capacity and may be detained without the protection afforded by the Mental Health Act 1983. This closes the Bournewood gap. 10 Ill treatment The Act introduces 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. 11 Research The Act lays down clear parameters for research where people without capacity may be the subjects. 12 Provisions implemented in the second phase [October 2007] 12.1 Lasting powers of attorney (LPA) The Act allows a person to appoint an attorney to 8

act on their behalf if they should lose capacity in the future. This is like an Enduring Power of Attorney (EPA), but the Act also allows people to let an attorney make health and welfare decisions. The financial and welfare duties may be combined or shared between different people. 12.2 Court appointed deputies - The Act provides for a system of court appointed deputies to replace the receivership in the Court of Protection. Deputies are able to take decisions on welfare, healthcare and/or financial matters as authorised by the Court, but are not be able to refuse consent to life-sustaining treatment. As in the case of LPAs, the welfare and finance responsibilities may be combined or shared. They can only be appointed if the Court cannot make a one-off decision to resolve the issues. 12.3 Advance decisions to refuse treatment Statutory rules with clear safeguards confirm that people may make a decision in advance to refuse treatment if they should lose capacity in the future. 12.4 The Act provides for two public bodies to support the statutory framework, both of which were designed around the needs of those who lack capacity: 12.4.1 Court of Protection The Court will have jurisdiction relating to the whole Act and is the final arbiter for capacity matters. It has its own procedures and nominated judges. 12.4.2 Public Guardian The Public Guardian and his/her staff are the registering authority for LPAs and deputies. They supervise deputies appointed by the Court and provide information to help the Court make decisions. They also work together with other agencies, such as the police and social services, to respond to any concerns raised about the way in which an attorney or deputy is operating. A Public Guardian Board has been appointed to scrutinise and review the way in which the Public Guardian discharges his/her functions 9

1 Assessment of Capacity Appendix 1 1.1 In order to determine whether or not someone has capacity in relation to a specific decision, following the pattern below will be helpful in reaching a conclusion. Should an IMCA be appointed as a result of this assessment, the information should be shared with them. 1.2 Remember that capacity should be assumed in the first place; evidence of incapacity must relate to the matter in hand. 1.3 Do not rely solely on questions with a yes/no answer, as they can often produce an affirmative as an automatic response. 2 Communication How does this person communicate? How do they indicate yes / okay? How do they indicate no / stop? How easily can they make their needs / preferences known? How can information be presented to them to enable maximum comprehension? 3 Information sharing Have they been told about the decision which needs to be made? How was the information presented? 4 Decision making Ask the following questions, recording all responses or noting if no response. Use the communication methods they prefer when asking the questions (these are prompts and not definitive questions). 10

Question One Response Can you tell me about...? (the proposed action) What is going to happen? Question Two Response What would happen if you did not have / receive / do...? Question Three Response What are the benefits / good things? Question Four Response What are the risks / bad things? Question Five Response Is it okay to...? 11

5 Demonstrating capacity If they have answered questions 1, 2, 3 and 4 appropriately and demonstrated a basic understanding of the procedure then capacity has been confirmed. If they have shown little response to questioning or have not shown a basic understanding of the proposed action, then capacity has not been demonstrated. If this is the case complete the form at Appendix 2. 12

Appendix 2 WORCESTERSHIRE MENTAL CAPACITY ACT 2005 CHECKLIST 1 DETAILS OF PERSON BEING ASSESSED FOR CAPACITY Name DOB ID Address 2 DETAILS OF PERSON ASSESSING CAPACITY Name Relationship or Job Title 3 DESCRIBE THE DECISION TO BE TAKEN Date Time Name of Assessor 3 DEFINITION 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 a disturbance in the functioning of, the mind or brain. 4 To help determine if a person lacks capacity to make particular decisions, the Act sets out a two-stage test of capacity. 5 STAGE ONE EVIDENCE Please provide the evidence which has led you to believe that the person lacks capacity at this time Section 2(1) of the Act & Code of Practice 4.3 Code of Practice 4.10 Ref. 6 But first people must be given all practical and appropriate support to help them make the decision for themselves. Please describe the actions taken. Code of Practice 4.13 7 STAGE TWO THE FUNCTIONAL TEST Yes No Does the person understand the information relevant to the decision? and Can the person retain the information? and Can the person use or weigh the information to arrive at a choice? and Can the person communicate the decision? 13

IF THE ANSWER TO ANY ONE QUESTION IS NO THEN THE PERSON DOES NOT HAVE CAPACITY 8 Outcome of the functional Test answer question a or b a It is my assessment that the person lacks capacity to make the decision Go to Q9 & Q10 Assessor Name Signature b It is my assessment that the person has capacity to make the decision Go no further Assessor Name Signature 9 Does the person have an EPA Ref. 10 Does the person have an LPA Ref. 14

Appendix 3 IMCA Referral Form Herefordshire and Worcestershire Client Name: Client Contact: Address, postcode, tel. Date referral made: Issue (please tick) Serious Medical Treatment Move to accommodation provided by an NHS body Move to accommodation provided by a Local Authority Safeguarding Vulnerable Adults Procedure Care Review Significant dates When does the decision need to be made by? Please give details of any impending meetings or deadlines Referrer and Decision Maker s (If not referrer) Contact: Job title, address, postcode, tel, mobile, email Person to contact to arrange meeting with client (if different from above): Specific Needs (Communication methods, access issues etc.) 15

Decision Maker s Confirmation The decision maker is the individual within either the Local authority or the NHS body who has the responsibility for making the decisions on issues of change of accommodation or serious medical treatment on behalf of the client who has been assessed as lacking capacity on either issue. Therefore only the decision maker is able to confirm the following. * I confirm that for the above issue I am the Decision Maker on behalf of (insert NHS body or local authority).... for decisions regarding (insert client name) Name Signature Date * I also confirm that I deem(insert client name). to be unbefriended, with no-one appropriate to consult regarding this issue. Name Signature Date * I also confirm that (insert client name). has been deemed to lack capacity to make a decision regarding the above issue. The person making the decision with regard to the client s lack of capacity in this issue is (insert name).. Their relationship to the client is.. Name Signature Date Please note that it is permissible for 3 rd party referrers to send the referral form prior to the decision maker s confirmation being obtained. Please return this form to the IMCA team by fax to 0845 337 3052, or by email to IMCA@pohwer.net. If you have any queries you can also contact the team by phone on 0845 223 0443. Thank you. 16

Best Interests Appendix 4 In order to be clear whether an individual s best interests have been adequately considered, the following checklist may be useful. 1 Details of proposed intervention. 2 Will capacity be regained in the future? If yes When? If no Why not? 3 What are the benefits/justification for the intervention? 4 What are the risks / adverse effects of carrying it out? 5 Is there a less restrictive option or any alternatives to consider? 6 What are the individual s wishes and feelings? 7 How has the person been involved in the decision making process? How has capacity been maximised? 8 How has information about the intervention been shared with them? 17

9 What are the views of other significant people involved in their life? 10 Is there an advance directive? Summary/Best Interest Decision: Name Title.. Signature. Date.. 18