Mental Capacity Act

Care workers and the Mental Capacity Act (2005)

Following a change in the law all care workers need to update themselves on the law around consent and capacity. The new Mental Capacity Act is important to all care workers because it mainly deals with people who are not necessarily mentally ill but who may well have difficulty making decisions for themselves.

The Mental Capacity Act (2005)

Background and related policies

The Mental Capacity Act is far from isolated in British policy-making. It is the latest in a range of new policies and pieces of legislation all aiming in the same general direction - to promote ‘person-centred care'. Everyone who works in social care in the UK will need to take heed of at least some of these changes which stretch back over 10 years.

It is also a large part of the government's response to the Bournewood judgement in the European Court of Human Rights (HL vs UK). This case, involving a man with learning disabilities, ruled that routine practice in Britain could be seen as unlawful deprivation of liberty under article 5 of the European Convention on Human Rights.

Like other policies and laws the Mental Capacity Act aims to build upon best practice and promote the best possible outcomes for people who may lack capacity. Together these policies and laws represent a major shift in the way that British culture treats people who need social care or who are vulnerable to exploitation by others.

Person-centred care

In the past services decided what they would offer and people took what they were given. Service-users had to adapt to fit services. Person-centred care means that service providers adapt to meet the needs of the service-user, not the other way around.

Principles of the Act

At the heart of the Mental Capacity Act 2005 are five underpinning principles that give us a simple way to understand the gist of the Act. The 5 principles are:

 An assumption of capacity - every adult has the right to make his or her own decisions and is assumed to have capacity until it is shown that they have not;
 The right for individuals to be supported to make their own decisions - people must be given all appropriate help before anyone concludes that they cannot make their own decisions;
 That individuals have the right to make eccentric or unwise decisions;
 Best interests - anything done for or on behalf of people without capacity must be in their best interests and;
 Least restrictive intervention - anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.

Elements of decision-making

The capacity to make decisions means being able to perform the four stages of decision-making as laid out by the Mental Capacity Act 2005. The four stages or elements are...

 to understand the information relevant to the decision,
 to retain that information,
 to use or weigh that information as part of the process of making the decision,
 to communicate his decision (whether by talking, using sign language or any other means).

Helping people to make decisions

Genuine attempts must be made to help the person complete the four stages. Even if they genuinely lack capacity we must still involve the person in decision-making.

Time and decision specific

People who lack capacity to make some decisions do not necessarily lack capacity to make other decisions. An elderly lady with Alzheimer's dementia may be unable to decide where she wants to live but she is probably more than able to decide what she would like to eat for her breakfast, for example. We can only say that people lack capacity to make this particular decision (or type of decision) at this particular time.

Elements of best-interests

There is a basic checklist of things to be considered by decision-makers. If you do not consider these things you may face civil or criminal proceedings. The checklist includes:

 Equal consideration and non-discrimination;
 Considering all relevant circumstances and information (including written information);
 The likelihood of the person regaining capacity;
 Permitting and encouraging participation;
 Special consideration for life-sustaining treatment;
 Advance decisions made by the individual when they had capacity;
 The person's wishes and feelings, beliefs and values;
 Lasting Powers of Attorney;
 The views of other people.

Obligation to consult carers etc

It is important to consult other interested parties. Remember that this is a delicate area because of confidentiality issues. If you are in any doubt about confidentiality be sure to seek advice from your manager or, if appointed, the person with Lasting Power of Attorney (more on LPAs later) before speaking to others. However, if it is permissible to speak to others, the law expects you to do so.

Do not do this without consent if the service-user
has capacity to decide for themselves.

Lasting Powers of Attorney

The new Lasting Power of Attorney (LPA) replaces the old Enduring Power of Attorney (EPA). It is a method people use to give someone else authority to make decisions on their behalf.

There are two types of Lasting Power of Attorney:

1. Property and Affairs;

1. Health and Welfare.

Advance Decisions

The Mental Capacity Act 2005 gives Advance Decisions statutory weight for the first time and makes it much more difficult to ignore them. This is a way for people to say what they want to happen in advance should they lose capacity in the future.

Statements of beliefs, values, feelings

Statements of beliefs help determine what is in the person's best-interests. These statements outline the beliefs, values and principles that people would use to decide for themselves. They can be about anything at all that the person would like decision-makers to take into consideration.

Disputes under the MCA

Sometimes decisions about capacity or best-interests will be disputed. The government has created several new offices and posts to help including the Independent Mental Capacity Advocate, the Court of Protection and the Office of the Public guardian.

IMCA (not decision-maker)

The Independent Mental Capacity Advocate (IMCA) acts on behalf of people who may lack capacity. IMCAs ensure that decisions around capacity are fair and in the person's best interests. IMCAs are not decision-makers but they must be taken seriously.

Court of Protection & Court Appointed Deputy

The Court of Protection (CP) deals with anything relating to the Mental Capacity Act (2005). It is a new type of court specifically created to accompany the Act. In particular the court will make decisions regarding capacity itself as well as about property, financial affairs and health and well-being.

The court has all the powers of the High Court which means that it can set precedents that other courts have to follow - it can make law in other words.

From time to time the court may appoint someone to make ongoing decisions on behalf of a person who lacks capacity. This person will be known as a Court Appointed Deputy (CAD).

Office of the Public guardian (www.publicguardian.gov.uk)

The Public Guardian (PG) is a new position to protect people without capacity from abuse. The Office of the Public Guardian (OPG) supports the guardian to work with IMCAs, Court Appointed Deputies, LPAs and EPAs to prevent abuse of people who lack capacity.

New criminal offence

The MCA creates a new criminal offence of ‘ill treatment or wilful neglect', a crime which carries a maximum penalty of five years imprisonment.

Ill treatment means abuse as already defined in the ‘No Secrets' document in England or in Wales ‘In Safe Hands'. Both these documents support the existing Care Standards Act. Anyone can be guilty of ill treatment under the Act.

Wilful neglect applies only to those of us who have a duty of care towards people who lack capacity. This includes paid and voluntary workers. Essentially it means not abiding by the new Act's code of practice.

Mental Health Act & MCA

The Mental Capacity Act does not affect the treatment of people detained and treated under the Mental Health Act (1983) if the decision is made under part 4 of the Mental Health Act. Also people detained under the Mental Health Act cannot refuse prescribed treatment for mental disorder under the Mental Capacity Act even if they have an advance decision saying that they want to.

However, the Mental Capacity Act principles and code of practice still apply to other aspects of their care whilst they are ‘sectioned'.

Websites and other references

For more information go to:

The MCA itself is free to download from:
www.dca.gov.uk/legal-policy/mental-capacity/publications.htm

The MCA Code of Practice can be downloaded from:
www.publicguardian.gov.uk

The government has produced a series of short guides explaining the code of practice in everyday terms. These guides called ‘Making decisions' are available from the public guardian website at www.publicguardian.gov.uk


The National Mental Capacity Act office is:
Mental Capacity Implementation Office
Department for Constitutional Affairs
5th Floor
Steel House
11 Tothill Street
London SW1H 9LH

Email: makingdecisions@dca.gsi.gov.uk
Telephone: 020 7210 0037 / 0038
Fax: 020 7210 0007.

Stop press: Deprivation of Liberty (DoL) Safeguards

The new Deprivation of Liberty Safeguards (Bournewood Safeguards) will come into effect on April 1st 2009. Named after the Bournewood case (HL vs UK) they will have a major impact upon hospitals and care homes throughout England & Wales.

These safeguards cover much more than simply the choice to leave the building.

The DoL safeguards cover all residential and hospital care settings and they provide a legal way to deprive a service user/client/patient of their liberty in their best interests so long as it genuinely is necessary.

Failure to follow the correct procedure when depriving a person of their liberty will be a criminal offence.

Examples of deprivation of liberty might include:

Deciding what someone will eat or wear;
Preventing people from going outside;
‘Over the top' observation;
Care and treatment decisions;
End of life planning (new hot topic);
Restrictions on visitors/associations.

There will be a strict protocol governing the deprivation of liberty and it will only be lawful if a Deprivation of Liberty assessor has granted a DoLS Authorisation:

1. Age: the person must be 18 or over;
2. Mental health: the person must have a mental disorder (which might include a learning disability if associated with ‘seriously irresponsible' or aggressive behaviour);
3. Mental capacity: the person must lack capacity for that decision;
4. Best interests: deprivation of liberty must be in the person's best interests;
5. Eligibility: the person is not ineligible to have his/her liberty deprived;
6. No refusals: there is no ‘valid and applicable' refusal such as an advance decision or a refusal under LPA.

All 6 conditions must be met before depriving a person of their liberty.

The Deprivation of Liberty Authorisation will normally come from the supervisory body (Primary Care Trusts for hospitals and Local Authorities for care homes). However, in emergency cases it will be possible for hospital or care home managers to grant the authorisation for a limited period of time. In this event they must obtain a proper authorisation as soon as possible afterwards.

The Deprivation of Liberty Safeguards are part of the Mental Health Act 2007 but they amend the Mental Capacity Act 2005 Code of Practice which means that it will be lawful to deprive a person of liberty under the Mental Capacity Act 2005 without using the Mental Health Act 2007.

This means that people in ‘the Bournewood gap' (not eligible for detention under the Mental Health Act but not able to make their own decisions either) are covered by the safeguards.

All residential and hospital care providers will need to understand the safeguards or risk criminal charges.