Mental Capacity Act
The Mental Capacity Act has been in place since 1 October 2007. It applies to all sorts of situations where health and social care (such as contact, living arrangements, and financial decisions) are made by and for people aged 16 and over. It requires that people are involved as much as is possible in decisions about them. People should be enabled to make decisions for themselves where they have capacity to do so.
The Act sets out a framework for decision making where the person does not have the capacity to make their own decision. The Act enables people to plan ahead for their care and treatment if they think they may lack capacity in the future. The Act is supported by a Code of Practice, more information about which can be found by following this link.
The Act requires all people who are paid to work with people who may lack capacity to use Code of Practice.
What is mental capacity?
Every day, we make decisions about our lives. These decisions could be about simple things like what we eat and what we wear. They could also be about major issues, such as our health, our care and our finances. Our ability to make a decision is known as mental capacity.
Who does the Mental Capacity Act affect?
People who may have difficulty making a decision including people:
- who have a learning disability
- who have a mental health condition such as depression, dementia, or schizophrenia
- who have a brain injury or have had a stroke
- who are under the influence of alcohol or drugs
This list is not exhaustive and most importantly, it does not mean that because a person has a condition similar to the above, that they do in fact lack capacity to make a decision.
The Mental Capacity Act also affects people who have to make a decision on behalf of those who lack capacity to make it. These people might be:
- carers/family members
- doctors (GPs and psychiatrists)
- nurses and healthcare assistants on the ward or in the community
- social workers
- advice workers
- any of us
How does the Mental Capacity Act affect families and carers?
- It helps everyone to understand how and when they can act on behalf of someone who lacks capacity.
- It makes clear the safeguards and limitations if you are making a decision for someone else.
- It says that families and carers should be consulted when professionals make decisions for others e.g. a doctor making a decision about treatment.
What is an Independent Mental Capacity Advocate (IMCA)?
An IMCA supports and represents people who lack capacity to make a decision when there is no one else to consult and when certain serious decisions might be about to be made on their behalf. Those decisions are either about serious medical treatment or a change of accommodation. The IMCA looks at the way the decision is being made but does not make the decision on behalf of the person they represent. They are independent of Nottinghamshire Healthcare NHS Foundation Trust, and always aim to ensure that the best interests of the person who lacks capacity are being considered by the decision maker.
As at January 2020, the Trust receives IMCA services from ‘POhWER’ and ‘Together’.
What are the main principles of the Mental Capacity Act?
The five key principles of the Mental Capacity Act are:
- A person must be assumed to have capacity to make a decision unless it is shown otherwise.
- Someone cannot be treated as lacking capacity until all practicable steps have been taken to help them to make their own decision. This could include help from a speech therapist, using sign language, having information provided in different formats, or giving treatment which will improve their mental condition. Even if someone finds some decisions difficult, they may still be able to take other decisions themselves. If someone has to make a decision for someone else they should still involve that person as much as possible.
- Just because someone wants to do something which most people consider unwise, strange or eccentric, this does not necessarily mean they lack capacity.
- If a decision is made for someone else it must be in their best interests.
- Any interference in someone's right to make decisions must take the form of the least restrictive option, and respect their basic rights and freedoms.
What else does the Mental Capacity Act do?
- The Act set up a Court of Protection and an Office of the Public Guardian to safeguard people who lack capacity.
- The Act contains a criminal offence of ill treatment or wilful neglect of a person who lacks capacity. Several prosecutions have resulted in convictions since the Act came into force.
Where can you get more information?
The Government has produced a lot of information on their website for professionals and for members of the public. You can also read the information sheet below:
What are the Mental Capacity Act Deprivation of Liberty Safeguards?
The Mental Capacity Act Deprivation of Liberty Safeguards (DOLS) are procedures which were incorporated into the Mental Capacity Act in 2009. These Safeguards protect those people in care home or hospital accommodation who lack capacity to consent to their care, are not detained under the Mental Health Act but need to be looked after in a particularly restrictive way in their best interests.
The term ‘deprivation of liberty' means that the person is both under continuous supervision and control and in addition, is not free to leave. Deprivation of liberty can only be lawful under the Mental Health Act, the Mental Capacity Act DOLS process or by an order of the Court.
The MCA DOL Safeguards are particularly applicable to patients who have dementia or who have learning disabilities but may apply to patients who have other conditions. Where a patient is deprived of their liberty (and the Mental Health Act is not applicable) the Trust must apply to the Local Authority for permission to deprive the person of their liberty. The care regime in the hospital will then be examined by the Local Authority.
Following their assessor's visit to the patient in the hospital, the Local Authority may (or may not) give permission for the restrictions to continue for a defined length of time and may place conditions on the Trust. This is known as a DOL Safeguards Authorisation. The authorisation is reviewable and is open to challenge by the patient or those representing the patient. Any patient who is then subject to the Deprivation of Liberty Safeguards is allocated a Relevant Person's Representative (RPR) whose role it is to support the patient and if necessary, to challenge the authorisation. The Government has produced a lot of information about deprivation of liberty on their website. You can also read the information sheet below:
The Mental Capacity (Amendment) Act 2019 has provided for the replacement of DOLS. This will be the Liberty Protection Safeguards. More information will be available ahead of the current projected date of implementation which is 1 October 2020.
How can I plan ahead with the Mental Capacity Act?
There are three key ways which you might want to use in order to plan for a time when you may lack capacity.
Lasting power of attorney
The Mental Capacity Act enables you (if you are over 18 and have the capacity to do so) to appoint someone to make decisions about your personal welfare (health/social care etc.) or property and affairs (finances etc.) should you ever lack the capacity to make these decisions yourself. This is called a lasting power of attorney (LPA). You are known as the donor. The person or persons you appoint are known as the done.
Advance decisions to refuse treatment (ADRT)
You can also make a decision in advance to refuse (not request) particular medical treatment. This decision would become especially relevant should you lack capacity to refuse such treatment in the future. You must be over 18 when you make your advance decision. It must be valid and applicable. Your intentions concerning the treatment that you want to refuse and the circumstances of refusal must be clear. Other than for decisions about life sustaining treatment (such as resuscitation in the event of a heart attack) advance decisions need not be in writing. Refusals of life sustaining treatment are governed by strict rules in the Act. For more information click here and view chapter 9 of the Mental Capacity Act Code of Practice.
You can refuse mental disorder treatment by way of an advance decision, but if you were to be detained under the Mental Health Act, the decision about the mental health treatment may need to be overridden under the provisions of that Act, though that is not always the case. Even if you are detained under the Mental Health Act, refusal of treatment relating to an unrelated physical condition might still be upheld as long as it is valid and applicable to the treatment in question. There are also rules relating to the refusal of electroconvulsive therapy which in some circumstances enable refusal even when detained under the Mental Health Act.
You might wish to discuss the making of an advance decision to refuse treatment with your doctor or other health professional. You may benefit from the advice that you receive, but you do not have to ask anyone's permission to make an advance decision to refuse treatment.
An advance statement (or statement of wishes and feelings) is about anything else other than refusal of specific medical treatment. For example, you could request a treatment that has worked well for you in the past. An advance statement is simply anything that you may have said or written down concerning your care and or treatment.
If you are over 16, you might wish to write down your wishes and preferences about care or other aspects of your life that you want clinicians to be aware of when they are looking after you and you may not be able to tell them yourself.
The Trust has forms that you could use (available to download below) – although you are not legally required to use these or any forms if you don't want to. The booklets do give a helpful reminder of things that you can put in your advance statement. Should you lack capacity to make a decision for yourself, a decision maker is required to take this statement into account when considering your best interests.
You should note that an advance statement not legally binding, but a decision maker should give reasons why it was not possible to carry out your requests.