The Mental Capacity Act 2005 The Mental Capacity Act (The Act) 2005 came into force in England and Wales in 2007. The Act provides a statutory framework for assessing whether a person, aged 16 or above, has the mental capacity to make certain decisions ‘…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.’ How many of you feel competent to assess a patients capacity? Their capacity to choice a cup of tea or coffee?

https://www.youtube.com/watch?v=syhKx6pxkxw

The 5 Principles of the MCA 1. 3. 4. 2. 5. A person must be assumed to have Capacity A person is not to be treated as unable to make a decision unless all practical steps to help them do so have been taken without success An unwise decision does not indicate a lack of capacity An act or decision made on behalf of a person who lacks capacity must be made in their best interests When a person lacks capacity any act or decision should aim to be the less restrictive option

Decision Maker The decision maker is the person proposing the treatment or intervention. Anyone may be a decision maker and anyone can assess capacity, for example: Wash and shave – Healthcare assistant Catheter insertion – Nurse Surgery – Consultant Discharge package or care / location – Onward Care Blanket statements such as “Mr Smith lacks capacity” or “Mr Smith does not have capacity to decide on treatment” are not acceptable. Mr Smith maybe able to consent to some treatment but not others.

Assessing capacity Level 1: Day to day decisions Activities of daily living, observations and simple diagnostic tests – record in nursing notes Level 2: More complex decisions Invasive procedures, complex diagnostic tests, treatments, self discharge – Level 2 MCA sticker Level 3: Significant decisions Serious medical treatment – Level 3 MCA form and Consent form 4 RCHT has a level 2 and level 3 assessment forms available on the documents library or to order (CHA2915 & CHA3114) to guide you through the assessment and accurately record your findings. If you do not use the Trust documentation you must ensure you write a clear and thorough account of your assessment and finding in the medical/nursing records. 5

Assessing capacity Level 2 stickers are available from EROS (CHA3065) Level 3 forms and Consent form 4s are available on the intranet

Assessing capacity There are two questions to be asked if you are assessing a person’s capacity. This two-stage test must be used, and you must be able to show it has been used. Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain? If so: Is the impairment or disturbance sufficient to cause the person to be unable to make that particular decision at the relevant time?

A Person must be able to: Understand the information Retain the information Use or weigh the information Communicate the decision Failure on any one part indicates a lack of capacity to make the specific decision at that particular time Reasonable belief is sufficient Anyone can assess capacity - the assessment should be carried out by the person proposing the decision i.e. a care worker might need to assess if the person can agree to being washed, a district nurse might need to assess if the person can consent to having a dressing changed, a surgeon will need to assess if the person can consent to an operation. A person must be able to understand the nature of the decision, the purpose for which it is needed and the consequences, risks or outcomes of making the decision. The Act states every effort should be made to provide information in a way that is most appropriate to help the person understand. In determining risks the person only needs to consider the reasonably foreseeable risks. It is acceptable for the information to be understood in broad terms, case law indicates the level of understanding does not need to be of a particularly high standard. The information for making a decision only has to be retained long enough to make the decision, the information could be forgotten an hour later and the decision would remain valid. The ability to use of weigh information means the person accepts the information and takes it into account. A person can communicate their decision using any method recognised by those undertaking the assessment i.e. hand signals, gestures, writing etc. To make a decision based on a capacity assessment it is sufficient that the person making the assessment holds a reasonable belief that the person either has or lacks capacity with regard to a particular decision. You do not have to be 100% certain the person lacks capacity – reasonable belief is 51% so if you feel based on your assessment (which you have clearly documented!) that the person lacks capacity then that is acceptable and your are working within the Act.

BEST INTERESTS A decision made on the behalf of someone should always be in their BEST INTERESTS You must consider what the person lacking capacity would have wanted if they had the ability to make a decision, rather than the personal views of the decision maker. Consider the person’s past and present wishes and feelings (in particular if they have been written down). Consider any beliefs and values (e.g. religious, cultural or moral) that would be likely to influence the decision in question and any other relevant factors. It is important to note that what is in a person’s best interests may not be what is in the best clinical interest for that person. Decisions concerning the provision or withdrawal of life sustaining treatment the must not be motivated by a desire to bring about the person’s death. Can be motivated by reducing suffering dignity issues but not to end someone’s life to get the money or free up a bed!!! 9

Best Interest Decisions Consider if capacity may be regained in the future… if so wait! Consider the patients past and present wishes, beliefs and values Consult people who have an interest in the welfare of the patient Encourage the person to participate… even if they lack capacity Consider less restrictive options Do not solely base the decision on age, appearance or behaviour Do not be motivated by a desire to bring about the persons death Consider whether the person is likely to regain capacity. If so can the decision or act wait until then? For example alcohol or infection. Emergency decisions might be needed but long term ones can be put off until capacity regained Decision makers have a duty to consult and take into account the views of others, there is no set hierarchy of who to consult it could be family, friends neighbours etc, the act states any person with an interest in the welfare of the individual concerned can be consulted. There is no duty to follow what is said by those consulted if in the decision makers opinion, their views are not in the person’s best interests. Ensure that you have done whatever is possible to permit and encourage the person to take part, or to improve their ability to take part, in making the decision. Decisions concerning the provision or withdrawal of life sustaining treatment the must not be motivated by a desire to bring about the person’s death. Can be motivated by reducing suffering dignity issues but not to end someone’s life to get the money or free up a bed!!! 10

IMCAs referrals must be made when: Independent Mental Capacity Advocates - IMCA IMCAs referrals must be made when: A person has been assessed as lacking capacity to make a major decision about serious medical treatment or a longer-term accommodation move and they have no family or friends to consult with Referrals can be made by telephone on 0845 2799019 or referral forms are available on the RCHT intranet or the SEAP website: www.seap.org.uk/imca IMCAs are also required when it is not appropriate to consult with family or friends, for example if the family or friends are abusive to the person, or they do not have the persons best interest in mind and have other motives such as financial gain in a will or the sale of a house.

Deprivation of Liberty Safeguards The deprivation of liberty safeguards (DOLS) provide legal protection for those vulnerable people who are, or may become, deprived of their liberty within the meaning of Article 5 of the European Convention of Human Rights (ECHR) in a hospital or care home, whether placed under public or private arrangements. The safeguards exist to provide a proper legal process and suitable protection in those circumstances where deprivation of liberty appears to be unavoidable, in a person’s own best interests. From April 2009, the Mental Capacity Act has allowed the deprivation of liberty of people who lack capacity. A deprivation of liberty is not in itself illegal, but it is, if not sanctioned by legal processes. The deprivation of liberty safeguards cover patients in hospitals, and people in care homes registered under the Care Standards Act 2000. Whether placed under public or private arrangements

Eligibility The person is 18 or over The person assessed as suffering from a mental disorder The person has been assessed as lacking capacity to make decisions about their admission to hospital The person does not have any other existing authority for decision making in place which relates to the DOLS The person is not detained under the Mental Health Act (or could be e.g. 5/2) The person needs to be deprived of their liberty, in their best interests, to prevent harm to themselves

The way the a Deprivation of Liberty is defined changed significantly on the 19th of March 2014 The Cheshire West Ruling ://www.youtube.com/watch?v=Nq1G9C7hKWk Pre Cheshire West Intensity v Degree Clinicians judgement Compliance Post Cheshire West The ‘Acid test’

According to the law (specifically recent case law, known as Cheshire West) the ‘acid test’ to determine if there is a Deprivation of Liberty is:    - Does the person have a mental disorder?  "mental disorder means any disorder or disability of the mind" MHA 1983 (amended 2007)  - Is the patient under continuous supervision and control and not free to leave? Due to the hospital environment all patients in an acute hospital are under continuous supervision and control. From April 2009, the Mental Capacity Act has allowed the deprivation of liberty of people who lack capacity. A deprivation of liberty is not in itself illegal, but it is, if not sanctioned by legal processes. The deprivation of liberty safeguards cover patients in hospitals, and people in care homes registered under the Care Standards Act 2000. Whether placed under public or private arrangements

“A gilded cage is still a cage” Whether the person is trying or able to leave and the purpose of the treatment is not relevant… “A gilded cage is still a cage” If the patient meets the acid test they are deprived of their liberty and this must be authorised by law. As a result many patients who would not have been considered for DOLS prior to the Cheshire West judgement are now, according to the law, Deprived of their Liberty. From April 2009, the Mental Capacity Act has allowed the deprivation of liberty of people who lack capacity. A deprivation of liberty is not in itself illegal, but it is, if not sanctioned by legal processes. The deprivation of liberty safeguards cover patients in hospitals, and people in care homes registered under the Care Standards Act 2000. Whether placed under public or private arrangements

It is the responsibility of the clinical team caring for the patient to apply for a DOLS authorisation. The DOLS application forms can be found on the RCHT website, the ‘Sister’s shelf’, or requested form the RCHT Safeguarding adults team. Completed DOLS applications must be sent to both: dolsapplication@cornwall.gov.uk RCHT.Dols@Cornwall.NHS.UK Trust signatories for DoLS forms are: Medical staff (ST3 and above), Ward Managers, Nurse in Charge, Matrons, Site Coordinators and Specialist Nurses

The patient must have a Mental Capacity Assessment indicating they lack the capacity to consent to their admission The patient and their NOK must be given a letter informing them about the DOLS and an accompanying information leaflet. The Trust has a legal duty to provide this information. The patient must also be given a verbal explanation and this should be documented in the medical records. All the paperwork required will be emailed in response to an application, it can also be found on the RCHT intranet, ‘Sister’s Shelf’ or requested form the adult safeguarding team.

Out of Hours contact the Clinical Site Co-ordinators We are here to help! Various tools are available on the RCHT intranet to support the correct application of the Mental Capacity Act For advice and support contact: Lerryn Hogg - Specialist Nurse for Mental Health and Wellbeing Ext 2638 Mobile 07789 876247 GroupWise: Lerryn.hogg@rcht.cornwall.nhs.uk Out of Hours contact the Clinical Site Co-ordinators RCHT has a level 2 and level 3 assessment forms available on the documents library or to order (CHA2915 & CHA3114) to guide you through the assessment and accurately record your findings. If you do not use the Trust documentation you must ensure you write a clear and thorough account of your assessment and finding in the medical/nursing records. If you would like any advice, support or information discuss the situation with your team or contact the Specialist Nurse for Mental Health and Wellbeing.