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Palliative Care Conference4 July 2004

Briefing on Mental Capacity Act Advance Decisions Deprivation of Liberty The Lessons Learned

John Gibbons MCA-Operational lead

Telephone 01422 363561

john.gibbons@calderdale.gov.uk

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MCA Briefing

The IMCA provisions came into force on 1 April 2007.

The remainder of the Act came into force on 1 October 2007.

Underpinned by a Code of Practice. Specific staff have a statutory duty to have

regard to the code (s42) Family, friends and unpaid carers are also

expected to follow guidance contained in the code.

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Code of Practice

People who are paid for acts in relation to people who lack capacity.

Should be able to explain how they had regard to the code when making decisions.

If you don’t follow the code you must have good reasons for why you have departed.

Day to day decisions do not require recording however its good practice to record the steps taken when caring for a person.

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Principles of the Act

Assume a person has capacity unless proved otherwise.

Do not treat people as incapable unless you have tried all practical steps to help them.

Do not treat someone as incapable of making a decision because their decision may seem unwise.

Any act or decision on behalf of a person who lacks capacity must be in their best interests.

Least restrictive option.

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People who lack capacity

When does a person lack capacity (s2) Inability to make a decision (s3) Best interests checklist (s4) Acts in connection with care or treatment (s5) Limitations to s5 re restraint. A new criminal offence of ill treatment or neglect. Decision specific.

The concept of fluctuating capacity.

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Lasting Powers of Attorney Lasting Power of Attorney (LPA) Enables you appoint someone you know and trust to make

decisions on your behalf. Two types of LPA Property and affairs (replaces EPA’s) Personal welfare Must be made when a person has capacity. Must be registered with the Public Guardian.

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Court Appointed Deputies Could be used when a series of decisions are

needed and a single court order is insufficient. Two types of Deputy. Financial Welfare. Or to make both financial and welfare decisions. Court Receivers will be replaced by deputies

appointed by the Court

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Public Guardian

The Public Guardian and his/her staff are the registering authority for LPA’s and deputies.

They supervise deputies appointed by the Court and provide information to help the Court make decisions.

They will also work with other agencies to respond to any concerns about the way in which an attorney or deputy is operating.

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Guardians Protective Role Establishing and maintaining a register of

Lasting Powers of Attorney (LPA’s) Establishing and maintaining a register of orders

appointing deputies; Supervising deputies appointed by the court, in

co-operation with other relevant authorities (such as social

services if the person who lacks capacity is receiving social care).

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Guardians Protective Role Directing Court of Protection Visitors to visit

people lacking capacity and those who have formal powers to act on their behalf.

Receiving reports from attorneys acting under LPA’s and from deputies.

Providing reports to the court as requested and Dealing with representations (including

complaints) about the way in which attorneys or deputies exercise their powers.

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Court of Protection

Will have jurisdiction relating to the whole Act. Will be the final arbiter for capacity matters.

It has its own Court Rules and Judges. Public consultation has been held on Court

Rules.

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Independent Mental Capacity Advocate (IMCA) Duty to appoint an IMCA for people who are

“unbefriended” in specific situations. Provision of serious medical treatment by an

NHS body (s 37) Provision of accommodation by an NHS body

(s38) Provision of accommodation by a local authority

(s39)

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IMCA (continued)

Does not apply if action taken under Mental Health Act.

Right to interview the person. Access to records and the right to take copies. Views must be taken into account. Right to complain and ultimately to refer the

matter to the Court of Protection.

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Serious Medical Treatment Is defined as treatment which involves giving new

treatment ,stopping treatment that has already started or withholding treatment that could be offered in circumstances where:

If a single treatment is proposed there is a fine balance between likely benefits and the burdens to the patient and the risks involved.

A decision between a choice of treatments is finely balanced.

What is proposed is likely to have serious consequences for the patient.

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Serious Consequences

‘Serious consequences’ are those which could have a serious impact on the patient, either from the effects of the treatment itself or its wider implications. This may include treatments which:

cause serious and prolonged pain, distress or side effects • have potentially major consequences for the patient (for

example, stopping life-sustaining treatment or having major surgery

such as heart surgery), or • have a serious impact on the patient’s future life choices

(for example, interventions for ovarian cancer).

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IMCA Expansion of Role

LA and NHS have powers to instruct an IMCA. Where protective measures are being put in place

in relation to vulnerable adult from abuse and that person lacks capacity.

They do not need to be unbefriended. They may also be instructed in accommodation

reviews for people who lack capacity there is no one who is appropriate to consult.

In both cases there is a need to agree a policy statement outlining the eligibility criteria.

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Advance Decisions

The right of a person over 18 to refuse medical treatment at a point in the future when they lack capacity.

Can be an oral statement however people are advised to discuss with health professional and have decision recorded in their notes.

A decision to refuse life-sustaining treatment must be in writing (signed and witnessed).

No one has the right to demand specific treatment.

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Deprivation of Liberty

Introduced into Mental Capacity Act 2005 (MCA) through the Mental Health Act 2007 (1 April 2009)

Will prevent arbitrary decisions that deprive vulnerable people of their liberty

Safeguards are to protect service users and if they do need to be deprived of their liberty give them representatives, rights of appeal and for the “deprivation” to be reviewed and monitored.

Safeguards cover people in hospital and care homes registered under the Care Standards Act 2000

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Deprivation of Liberty.

The deprivation of liberty safeguards are in addition to and do not replace other safeguards in the MCA

Essential that hospital and care home managers and assessors understand the distinction between deprivation and restriction of liberty

Every effort should be made to avoid instituting deprivation of liberty care regimes wherever possible.

LAC (DH) 2008 4 The lessons so far. The feedback received to date is that a

first start has been made in the implementation of the MCA but that the Act still requires a large cultural shift in working with people who may lack capacity which has hardly begun.

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LAC (DH) (2008) 4

Statistical information suggests that nationally about half the number of people expected have received the IMCA safeguard. Half have not. Each eligible person who does not receive the safeguard means a breach of the Act.

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LAC (DH) (2008) 4

Assessments of capacity not being recorded.

The process and how Best Interest Decisions arrived at not being recorded.

The factors in reaching a decision i.e. show your working out.

L.A. responsibility to continue to offer training across the local economy

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