1. Mental Capacity Act (2005) Implications for General Practitioners Dr. Tracey Eddy Consultant Psychiatrist OPMH Southern Health NHS Foundation Trust

2. Key role of the MCA 2005 Codifies the law on capacity, doctrine of best interests and advance directives Supports adult autonomy with respect to health and social care decisions and challenges discrimination on the basis of age, appearance, disability or diagnosis. Enables adults to plan ahead for a time when they may lack mental capacity Strengthens safeguards (criminal and civil) for people who lack capacity to make a specific decision at the time it needs to be made Introduce a Code of Practice to support compliance with the Act to which professionals must pay due regard

3. Overview of the MCA Five statutory principles Definition of how to assess capacity Best interests Protection to people providing care and treatment – section 5 Substituted decision making – LPA, advance directives, Court of Protection deputies. IMCA Protection for those who lack capacity – ‘wilful neglect’or ‘ill treatment’

4. 4 Shared Understanding The 5 Statutory Principles 4 An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. 3 A person is not to be treated as unable to make a decision merely because he makes an unwise decision. 2 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. 1 A person must be assumed to have capacity unless it is established that they lack capacity. 5 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 least restrictive of the persons rights and freedom of action.

5. 5 Assessment of capacity – decision and time specific 1)Diagnostic test: Is there a disturbance or impairment in the functioning of the mind or brain? 2)Functional test: Is the individual unable to do any of the following – Understand the information Retain the information long enough to decide Weigh up the information Communicate the decision

6. 6 Best interests checklist Don’t make assumptions Consider the individual’s own wishes, feelings, beliefs and values, involve them if possible Consider any advance statements Views of family and informal carers Can the decision be put off until the person regains capacity? Take into account views of independent mental capacity advocate, attorney or deputy Show that it is in their best interests and is the least restrictive alternative or intervention

7. Acts in connection with care or treatment- section 5 Section 5 of the Act allows carers, healthcare and social care staff to carry out certain tasks without fear of liability Includes acts personal care - washing, dressing, personal care, doing shopping, arranging household activities etc healthcare and treatment – diagnostic examinations and tests, professional medical/dental treatment, medication, taking someone to hospital for assessment or treatment, providing nursing care, carrying out any other necessary medical procedures, providing care in an emergency Individual must lack capacity, MCA principles apply

8. Use of restraint – sec 6 (4) Sec 6(4) of MCA states that someone is using restraint if they: use force – or threaten to use force – to make someone do something that they are resisting, or restrict a person’s freedom of movement, whether they are resisting or not. Appropriate use of restraint falls short of deprivation of liberty.

9. Acts in connection with care or treatment – section 5 However the MCA does not permit: - inappropriate restraint. Any restraint must be a) necessary to protect the person who lacks capacity from harm and b) in proportion to the likelihood and seriousness of that harm. - treatment that goes against a valid and applicable advance decision to refuse treatment. treatment that goes against the donee of a valid LPA or deputy of the court. a person to be deprived of their liberty (Deprivation of liberty safeguards introduction (DOLS) April 2009 ).

10. 10 S5.1 ‘cloak of protection’ If you don’t have 3 buttons you’re undone! 5 statutory principles Assessment of capacity Best interests decision

11. Case Scenarios A 66yr old man admitted to elderly care ward with a cheat infection. He also has a history of hypertension, angina, a smoker. On day three of his admission he becomes more acutely confused, appears to be experiencing auditory hallucinations, resisting care and refuses medication. A 87 yr old woman living alone develops a severe chest infection / heart failure and becomes acutely confused. Her GP assess that further treatment in hospital is required and cannot be provided at home. The woman does not wish to go to hospital. The ambulance crew are reluctant to transport her to hospital. A 54 year old man with a history of heavy alcohol consumption becomes confused, agitated and paranoid 2 days post operatively.

12. Case scenarios – how to proceed Assess capacity to consent to care and treatment, Document capacity assessment Treat as appropriate under sec5 MCA – in best interests, least restrictive measure. Be aware of need to consider MHA if treating mental disorder

14. Substituted Decision making Lasting Power of Attorney financial LPA health and welfare LPA Advance Directive Court appointed deputies Court of protection – one off decisions

15. Lasting powers of attorney Two different LPAs -personal and welfare (including healthcare -property and affairs (financial) Donor and donee must be over 18 Donor may place restrictions on powers Not valid until registered with the office of public guardian Best interests principle applies

16. Personal and welfare LPA Donee empowered to make healthcare decisions once donor incapacitated Authority does not extend to refusing consent to life sustaining treatment unless expressly provided Advance refusal outranks LPA unless LPA both created later and is valid and applicable LPA may be specifically or automatically revoked Protection given to donees and third parties relying on LPAs which turn out to be invalid MHA can over-rule in the treatment of mental disorder

17. Implications for GPs Assessment of Capacity Request to be Certificate provider LPA Capacity assessments for COP3 Decision making with attorney / other professionals Advice / support Best interest decisions

18. Certificate provider for LPA Assess person on their own the donor understands the LPA’s purpose nobody has used fraud or undue pressure to trick or force the donor into making the LPA Statutory paperwork If life sustaining treatment needs to be specific authorising statement.

19. Case scenario LPA A 63-year old man with moderate Alzheimers disease MMSE 18/30)is assessed by his GP with hypotension secondary to suspected gastro-intestinal haemorrhage. The GP decides that he requires further assessment and urgent blood transfusion, however his wife states that she has been appointed his attorney in a lasting Power of Attorney (LPA) and that she does not want this to happen because he has dementia, and she knows from past discussions with him that he would not have wanted any treatment to prolong his life. Question?- what should the medical team do in this situation? Can they overrule the attorneys decision?

20. Checking LPA 1) Check patient lacks capacity - if not patient decides re the treatment. 2) Check LPA registered with the Office of Public Guardian and is valid 3)Ask to see LPA document and make sure attorney has authorisation to make relevant health care decisions regarding health. 4) Check there is a specific statement authorising life- sustaining treatment decisions. 5) If the team have concerns re attorney (e.g.suspect attorney motivated by desire to bring about death/ abusing them), they may proceed with the treatment provided it is considered to be in his best interests, and apply immediately to the Court of Protection for a decision. 6) If LPA valid and applicable, and no concerns, team must follow decision of the attorney

21. Testamentary capacity Understand what a will is and what its consequences are, Nature and extent of property Understand the nature and extent of the claims upon him, both of those included and excluded Free from abnormal state of mind that might distort feelings or judgements relevant to making the will.

22. Advance directives An advance statement that represents an actual decision to refuse treatment, albeit at an earlier date. P must be over 18. P must have capacity at the time of making. Decision must specify the treatment to be refused. Decision may specify the circumstances in which refusal will apply. Decision may be withdrawn or altered if P has capacity. Can only refuse treatment. Can be in writing or verbal ( except life sustaining treatment ). If AD is valid and applicable to the circumstances it must be followed ( can be over-ruled by MHA )

23. Case scenario – advance directives A 48 year old woman with leukaemia is acutely confused as she has an haemoglobin of 2.5g/dl. She lacks capacity to refuse a blood transfusion, although it transpires she made an advance directive to refuse blood transfusions because of news stories about CJD contamination of blood products. Question – How should the team proceed?

24. Advance Directive – check list 1 Does it exist?- Responsibility of patient to ensure brought to attention, but HCPs need to be aware one might exist. Is it valid? - a) Did they have capacity when it was made? b) Has the person since withdrawn decision? c) Has a subsequent LPA be made since making the decision nominating attorney to act? d) Are there reasonable grounds for believing that the circumstances that exist which the person did not anticipate at the time of making the advance decision and which would have affected his/her decision had she anticipated them? e)Has the person done anything that is inconsistent with the decision?

25. Advance Directive – check list 2 Is it applicable? a) Does the person have capacity? – if so can consent to treatment. b) Does the advance decision specify which treatment the person wishes to refuse? And is the treatment in question that specified in the advance decision? c) Do all circumstances specified in the AD exist? d) If treatment is for life-sustaining treatment it must -be in writing -signed by themselves or by somebody else on his behalf and at his direction, -witnessed -make a clear statement that the decision is to apply even if life is at risk.

26. 26 Independent Mental Capacity Advocacy (IMCA) Service Local service to represent the views of: People who have been or are being assessed as lacking capacity to make a serious decision about medical treatment or a change in accommodation People who have no-one to speak for them Can also be used for people having accommodation reviewed or where there are adult protection concerns www.hampshireadvocacy.org.uk

27. 27 S44 New Criminal Offences The Act introduces new criminal offences of the ‘ill- treatment’ or ‘wilful neglect’ of a person lacking capacity. Ill-treatment – deliberately or recklessly ill-treating someone. Wilful Neglect – failing to carry out a duty you knew you had to do, or should have known you had to do.

28. 28 Implications for GP’s (1) “capacity assessments Capacity is decision / time specific – Document clearly CQC Test of capacity – disturbance / impairment in the functioning of the mind, -unable to understand, retain, weigh up and communicate decision Observe 5 principles of MCA: assumption of capacity, best interests, least restrictive, can make unwise decision, all practicable steps to enable decision Section 5 –acts in connection with care and treatment

29. 29 Implications for GP’s(2) Clinical decision making” Patient’s right to support when making decisions to consent or not to treatment. If the person lacks capacity to consent to treatment or care themselves, only an attorney (personal and welfare) or a court appointed deputy can consent on their behalf A family member cannot consent unless they hold a ‘Health & Welfare Power of Attorney’ that covers the treatment If there is no one to provide consent, the relevant professional should lead decision making in the best interests of the person who lacks capacity Statutory involvement of an Independent Mental Capacity Advocate

30. 30 Implications for GP’s (3) working with other professionals” Support other professionals in Assessments of Capacity Certificate provide for LPA Provide evidence of a lack of capacity to the court of protection (COP3 form) Support /advice in advance directives or LPA Support Safeguarding Adults investigations, acting in accordance with the Mental Capacity Act