ACP Learning Pack Session Three 1 ACP Learning Pack Session Three:- The affect of the Mental Capacity Act 2005 on advance care planning

ACP Learning Pack Session Three 2 David Pennington Extracts from an interview with David Pennington, Lead for the Implementation of the Mental Capacity Act in the South West

ACP Learning Pack Session Three 3 1:Has the MCA made any changes in the way decisions about care and treatment are made in advance? The MCA has clarified some of the provisions that had previously been available through Common Law. Now the MCA actually covers things like the ability to make a decision in advance and gives some guidance on how that should be done.

ACP Learning Pack Session Three 4 2.Has the MCA brought about any changes in the term “next of kin”? The term “next of kin” will continue to be used by lots of people, but what the MCA has done is to introduce the ability to ask for somebody to be consulted on your behalf.

ACP Learning Pack Session Three 5 3.Do you think it would be good practice if this person, or consultee, is recorded in an advance care plan? Definitely. This could be someone who is related to us or somebody else that we might not see naturally as our ‘next of kin’.

ACP Learning Pack Session Three 6 4.Has the MCA brought about any changes about who can consent or refuse treatment on another person’s behalf? The MCA has introduced a Lasting Power of Attorney for Personal Welfare who we can appoint A consultee is somebody who you would discuss with and who you might ask to help you understand somebody’s best interests. But if they say “I refuse that treatment” for a person, it is not binding. Whereas an Attorney, if they have been authorised, can refuse treatment on a person’s behalf when the person is incapacitated.

ACP Learning Pack Session Three 7 5.Has the MCA made any changes as far as someone’s ability to request a treatment in advance? If we request a treatment in advance, it is not legally binding on the professionals involved in our care.

ACP Learning Pack Session Three 8 6.What conditions must be fulfilled if somebody is completing an advance decision to refuse treatment? There’s two types of advance decisions; there’s advance decisions to refuse treatment and there’s also advance decisions to refuse life-sustaining treatments. The requirements are different for both types. In both circumstances, the person making the decision needs to have the capacity to make it and they need to be over eighteen. For an advance decision to refuse life-sustaining treatment, there are some additional requirements which are that:- –it must be in writing –it must be witnessed and the witness must sign to say that they witnessed the person making that advance decision –it must have a statement that’s very clear that says “I’m refusing this treatment, even if life is at risk” For other advance decisions, they don’t have to be in writing. I think it’s good practice to record it, but if it’s refusing life sustaining treatment it must be recorded.

ACP Learning Pack Session Three 9 7.Are there any actions which a person can’t refuse in advance? There are aspects of basic care that people can’t refuse. These would be things like, shelter, warmth, being kept clean and the offer of hydration and food. A person can’t refuse those things in advance. That wouldn’t be binding on the professionals involved in the care.

ACP Learning Pack Session Three 10 8.What about if a person changes their mind after they’ve recorded an advance decision to refuse treatment? You can change your mind provided you’ve got the mental capacity at any point. Importantly, if you change your mind, you need to make sure that people are informed about that. If you make an advance decision and nobody knows, it’s very hard for anyone to find it. The people involved - family, friends, perhaps doctors or healthcare professionals you’re in contact with – you’d want them to be aware that you’ve made this advance decision because it’s a very important document.

ACP Learning Pack Session Three 11 9.What status does an advance decision have? An advance decision to refuse treatment is binding on the people who are proposing treatment in the future. It’s a document that projects a person’s wishes in the future and enables them to refuse a particular treatment when they don’t have capacity. But, within that, the advance decision must be valid and applicable.

ACP Learning Pack Session Three If an advance decision to refuse treatment appears to be valid and applicable, are there any circumstances where healthcare professionals may not actually abide by the decision? No. If however, they are concerned about whether that advance decision is valid and applicable, they could ask the Court of Protection to review whether it’s valid or whether it’s applicable in that situation. But, if they’re satisfied an advance decision is valid and that it’s applicable in this particular situation, it’s binding on them.

ACP Learning Pack Session Three And what about in an emergency situation? In an emergency situation, the key thing for the people involved in the care is not to delay treatment – to look for an advance decision that they’re not sure exists. They need to act in a way which appears to them to immediately be in the person’s best interests. If, however, they are fully aware that an advance decision exists then they’re bound by that in this emergency situation. The emergency situation doesn’t bypass this advance decision. Unless they’ve got information to the contrary they need to act in a way that immediately appears to them to be in the person’s best interests.

ACP Learning Pack Session Three 14 Lasting Power of Attorney The giving of authority by one person to another person to make decisions on their behalf in certain well defined circumstances. Two types of LPA:- -Personal welfare (PWLPA) -Property and affairs Can only be used if the person lacks capacity to make this particular decision Must be registered with the Office of the Public Guardian to be valid

ACP Learning Pack Session Three 15 Safeguards - 1 ‘Named persons’ ‘Certificate Providers’ – 2 types- knowledge- based and skills- based ‘Named persons’ and ‘Certificate Providers’ can raise concerns Donor can set limits on the Powers of LPA LPA can be registered at any time Fee of £ must be paid for each LPA LPAs must abide by MCA LPA can be de-registered by Office of the Public Guardian (OPG) Objections can be made to OPG and will be investigated.

ACP Learning Pack Session Three 16 Working with a PWLPA Confirm the type of LPA – personal welfare or property and affairs Is the LPA registered with the OPG? If a the LPA is for personal welfare (PWLPA) and registered, what remit does the LPA have? Request to see a copy of the document and/or carry out a search Remember an PWLPA can only make a decision for the resident if they lack the mental capacity to make the decision for themselves.

Other considerations Involvement of the Court of Protection Appointment of a ‘deputy’ to make decisions The Court will set the remit for the deputy ACP Learning Pack Session Three 17