The Mental Capacity Act 2005 Implications for Front Line Staff Richard Williams Professor of Mental Health Strategy, University of Glamorgan Professor of Child and Adolescent Mental Health, University of Central Lancashire Scientific Adviser to the Emergency Preparedness Division, Department of Health Richard Williams Professor of Mental Health Strategy, University of Glamorgan Professor of Child and Adolescent Mental Health, University of Central Lancashire Scientific Adviser to the Emergency Preparedness Division, Department of Health

My agenda for today 1. The Mental Capacity Act 2005 and its Code of Practice 2. Mental capacity 3. Assessing capacity 4. What to do in emergencies 4. What to do in emergencies 5. Best interests 6. Protection of carers 7. Other instruments, offices and relationships 8. Concluding comments 1. The Mental Capacity Act 2005 and its Code of Practice 2. Mental capacity 3. Assessing capacity 4. What to do in emergencies 4. What to do in emergencies 5. Best interests 6. Protection of carers 7. Other instruments, offices and relationships 8. Concluding comments

The Mental Capacity Act 2005 and its Code of Practice

The Mental Capacity Act 2005 Covers a wide range of decisions or actions taken on behalf of people who MAY lack capacity to make decisions fore themselves Covers a wide range of decisions or actions taken on behalf of people who MAY lack capacity to make decisions fore themselves There are certain decisions that can NEVER be made on behalf of a person who lacks capacity and some are related to health and healthcare There are certain decisions that can NEVER be made on behalf of a person who lacks capacity and some are related to health and healthcare Covers a wide range of decisions or actions taken on behalf of people who MAY lack capacity to make decisions fore themselves Covers a wide range of decisions or actions taken on behalf of people who MAY lack capacity to make decisions fore themselves There are certain decisions that can NEVER be made on behalf of a person who lacks capacity and some are related to health and healthcare There are certain decisions that can NEVER be made on behalf of a person who lacks capacity and some are related to health and healthcare

Statutory principles A person must be assumed to have capacity unless it is established that they lack capacity A person 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 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 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 oin behalf of a person who lacks capacity must be done, or made, in his best interests An act done, or decision made, under this Act for or oin 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 persons rights and freedom of action 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 persons rights and freedom of action A person must be assumed to have capacity unless it is established that they lack capacity A person 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 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 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 oin behalf of a person who lacks capacity must be done, or made, in his best interests An act done, or decision made, under this Act for or oin 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 persons rights and freedom of action 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 persons rights and freedom of action

Mental Capacity

Mental capacity Mental capacity is the ability to make a decision Mental capacity is the ability to make a decision Lack of capacity Lack of capacity For the purposes of this Act, 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 For the purposes of this Act, 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 This means that a person lacks capacity if: This means that a person lacks capacity if: They have an impairment or disturbance (for example, a disability, condition or trauma) that affects the way their mind or brain works, and They have an impairment or disturbance (for example, a disability, condition or trauma) that affects the way their mind or brain works, and The impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made The impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made May be: May be: Permanent Permanent Partial Partial Temporary Temporary Change over time Change over time Mental capacity is the ability to make a decision Mental capacity is the ability to make a decision Lack of capacity Lack of capacity For the purposes of this Act, 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 For the purposes of this Act, 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 This means that a person lacks capacity if: This means that a person lacks capacity if: They have an impairment or disturbance (for example, a disability, condition or trauma) that affects the way their mind or brain works, and They have an impairment or disturbance (for example, a disability, condition or trauma) that affects the way their mind or brain works, and The impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made The impairment or disturbance means that they are unable to make a specific decision at the time it needs to be made May be: May be: Permanent Permanent Partial Partial Temporary Temporary Change over time Change over time

Assessing Capacity

Assessing capacity Stage 1: Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? Stage 1: Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? Stage 2: Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to? Stage 2: Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to? Stage 1: Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? Stage 1: Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? Stage 2: Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to? Stage 2: Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to?

Stage 1: Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? Examples of conditions Examples of conditions Conditions associated with mental illness Conditions associated with mental illness Dementia Dementia Significant learning disabilities Significant learning disabilities Long-term effects of brain damage Long-term effects of brain damage Physical or medical conditions that cause confusion, drowsiness or loss of consciousness Physical or medical conditions that cause confusion, drowsiness or loss of consciousness Delirium Delirium Concussion following a head injury Concussion following a head injury The symptoms of alcohol or drug use The symptoms of alcohol or drug use Examples of conditions Examples of conditions Conditions associated with mental illness Conditions associated with mental illness Dementia Dementia Significant learning disabilities Significant learning disabilities Long-term effects of brain damage Long-term effects of brain damage Physical or medical conditions that cause confusion, drowsiness or loss of consciousness Physical or medical conditions that cause confusion, drowsiness or loss of consciousness Delirium Delirium Concussion following a head injury Concussion following a head injury The symptoms of alcohol or drug use The symptoms of alcohol or drug use

Stage 2: Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to? A person is unable to make a decision if they cannot: A person is unable to make a decision if they cannot: Understand the relevant information about the decision to be made Understand the relevant information about the decision to be made Retain that information in their mind Retain that information in their mind Use or weigh that information as part of the decision- making process, or 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) Communicate their decision (by talking, using sign language or any other means) A person is unable to make a decision if they cannot: A person is unable to make a decision if they cannot: Understand the relevant information about the decision to be made Understand the relevant information about the decision to be made Retain that information in their mind Retain that information in their mind Use or weigh that information as part of the decision- making process, or 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) Communicate their decision (by talking, using sign language or any other means)

Understanding the information What information is relevant What information is relevant The nature of the decision The nature of the decision The reason why the information is needed The reason why the information is needed The likely effects of deciding one way or another, or making no decision at all The likely effects of deciding one way or another, or making no decision at all Advice Advice Take time to enable the person to take in the information Take time to enable the person to take in the information Try to give the most appropriate amount of information (avoid confusion and under informing Try to give the most appropriate amount of information (avoid confusion and under informing Provide info on risks and benefits Provide info on risks and benefits Explain effects of the decision on themselves and on close persons and carers Explain effects of the decision on themselves and on close persons and carers If there is a choice present the info in a balanced way If there is a choice present the info in a balanced way Consider if the person requires advice from another source Consider if the person requires advice from another source What information is relevant What information is relevant The nature of the decision The nature of the decision The reason why the information is needed The reason why the information is needed The likely effects of deciding one way or another, or making no decision at all The likely effects of deciding one way or another, or making no decision at all Advice Advice Take time to enable the person to take in the information Take time to enable the person to take in the information Try to give the most appropriate amount of information (avoid confusion and under informing Try to give the most appropriate amount of information (avoid confusion and under informing Provide info on risks and benefits Provide info on risks and benefits Explain effects of the decision on themselves and on close persons and carers Explain effects of the decision on themselves and on close persons and carers If there is a choice present the info in a balanced way If there is a choice present the info in a balanced way Consider if the person requires advice from another source Consider if the person requires advice from another source

What To Do in Emergencies

Emergencies Clearly, in emergency situations (for example, where a person collapses with a heart attack or for some unknown reason and is brought unconscious into a hospital), urgent decisions will have to be made and immediate action taken in the persons best interests Clearly, in emergency situations (for example, where a person collapses with a heart attack or for some unknown reason and is brought unconscious into a hospital), urgent decisions will have to be made and immediate action taken in the persons best interests In these situations, it may not be practical or appropriate to delay the treatment while trying to help the person to make their own decisions, or to consult with any known attorneys or deputies In these situations, it may not be practical or appropriate to delay the treatment while trying to help the person to make their own decisions, or to consult with any known attorneys or deputies However, even in emergency situations, healthcare staff should try to communicate with the person and keep them informed of what is happening However, even in emergency situations, healthcare staff should try to communicate with the person and keep them informed of what is happening Clearly, in emergency situations (for example, where a person collapses with a heart attack or for some unknown reason and is brought unconscious into a hospital), urgent decisions will have to be made and immediate action taken in the persons best interests Clearly, in emergency situations (for example, where a person collapses with a heart attack or for some unknown reason and is brought unconscious into a hospital), urgent decisions will have to be made and immediate action taken in the persons best interests In these situations, it may not be practical or appropriate to delay the treatment while trying to help the person to make their own decisions, or to consult with any known attorneys or deputies In these situations, it may not be practical or appropriate to delay the treatment while trying to help the person to make their own decisions, or to consult with any known attorneys or deputies However, even in emergency situations, healthcare staff should try to communicate with the person and keep them informed of what is happening However, even in emergency situations, healthcare staff should try to communicate with the person and keep them informed of what is happening

Best Interests

Best interests Not defined in the law … but … Provides a checklist of common factors that must be considered when coming to a view as to a persons best interests Encourage participation Identify all relevant circumstances Find out the persons views Avoid discrimination Assess whether the person might regain capacity Make no assumptions about quality of life or be motivated by a desire to bring about death in the case of life- sustaining treatment Consult others Avoid restricting the persons rights Weigh up all of the foregoing factors Not defined in the law … but … Provides a checklist of common factors that must be considered when coming to a view as to a persons best interests Encourage participation Identify all relevant circumstances Find out the persons views Avoid discrimination Assess whether the person might regain capacity Make no assumptions about quality of life or be motivated by a desire to bring about death in the case of life- sustaining treatment Consult others Avoid restricting the persons rights Weigh up all of the foregoing factors

Protection of Carers

Protections for providers of care Section 5(1) of the Act provides possible protection for actions carried out in connection with care and treatment carried out on behalf of someone who is believed to lack capacity for the action so long as it is in that persons best interests and that includes diagnostic or other procedures is included in treatment Steps for carers to bear in mind Acting in connection with the care or treatment … Checking whether the person has capacity to consent Acting in the persons best interests Understanding possible limitations on protection from liability Paying for necessary goods and services Section 5(1) of the Act provides possible protection for actions carried out in connection with care and treatment carried out on behalf of someone who is believed to lack capacity for the action so long as it is in that persons best interests and that includes diagnostic or other procedures is included in treatment Steps for carers to bear in mind Acting in connection with the care or treatment … Checking whether the person has capacity to consent Acting in the persons best interests Understanding possible limitations on protection from liability Paying for necessary goods and services

Other Instruments, Offices and Relationships

Other instruments, offices & relationships Lasting Power of Attorney Advance decisions to refuse treatment Role of Court of Protection and court-appointed deputies Independent Mental Capacity Advocate service Research involving persons who lack capacity Children and young people Relationship of MCA with Mental Health Acts 1983 and 2007 Lasting Power of Attorney Advance decisions to refuse treatment Role of Court of Protection and court-appointed deputies Independent Mental Capacity Advocate service Research involving persons who lack capacity Children and young people Relationship of MCA with Mental Health Acts 1983 and 2007

Concluding Comments