2005

Why is it necessary

When person lacks capacity physicians have power and influence over them which could be abused

30% pts on acute medical wards may lack capacity

2 million people in UK lack capacity Until this act no statutory law

covered this area

Lack of capacity

• Causes– Mental illness– Acute physical illness– Learning difficulties– Dementia

• Just because a person has a condition that might mean they lack capacity does not mean that they are incapable of making all decisions

The new Act

Codifies previous common law Introduces a code of practice A criminal offence for wilful neglect

or ill treatment of people without capacity

A new role of independent mental capacity advocate service - IMCA

Advanced decisions

Key Principles

• Capacity should always be assumed• Persons ability to make decisions should be

optimised before concluding capacity is absent

• Patients are entitled to make unwise decisions• Decisions and actions made for people lacking

capacity must be in their best interests• Such decisions must always be the least

restrictive options for their basic rights and freedoms

The code of practice

Designed to guide those responsible for interpreting the act

Clinicians are legally required to “have regard to” its guidance and if later asked prove they did

Any departures form it will be hard to justify

Is available online

Independent mental capacity advocate A person who is assigned to support

and represent “unbefriended” people who lack capacity

Clinicians do not have to adhere to their decisions but must take them into account as part of the decision making process

The code specifies when to instruct an independent mental capacity advocate

IMCA

• They should can be instructed for– Care reviews– Adult protection cases

• They must be instructed and then consulted when– Serious medical treatment is being

proposed• Ventilation, major surgery, chemotherapy, etc.

– When accommodation for > 28 days in hospital or 8/52 in a care home is being considered

Lasting power of attorney A person can appoint a named

person “the donee” with the authority to make decisions on their behalf if they lost capacity

It applies to Property and affairs Personal welfare Health care Social affairs

Lasting power of attorney• It includes all decisions except those

about withdrawal of life saving treatment unless explicitly authorised in the agreement

• Property and affairs lasting power of attorney can start before the person looses capacity

• Clinicians treating people without capacity must follow the decision of the “donee” unless they are thought not to be acting in the persons best interest

Lasting power of attorney The limits of the power granted are

specified Decisions about life sustaining

treatment must be specified A signed statement from the attorney

and a certificate completed by an independent third party are required

The court of protection can appoint a deputy for someone who already lacks capacity

Advanced decisions

Can be drawn up by anybody to specify treatments they would not want if they lost capacity

They cannot demand treatments As long as they were drawn up when

person still had capacity and are specific enough to cover the person’s current predicament they must be respected

They can be reversed if the person regains capacity

Advanced decisions

They can be made verbally Decisions that refuse life

sustaining treatment have to be written, signed and witnessed to be valid

Court of Protection

Adjudicates on the following for people who lack capacity Financial matters Health Welfare decisions

Legal protection

Section 5 of the act protects from legal liability those providing Health and personal care

For people without capacity provided they had “reasonable belief” that the person lacked capacity and their actions were in the persons best interest

Documentation is key Does not protect those who have been

negligent or who have gone against the wishes of an attorney or deputy acting within the scope of their power

Assessment of capacity

Stage 1 Person must have an impairment of or

disturbance in the functioning of the brain or mind resulting in an inability to retain, use or weigh information relevant to a decision.

Stage 2 Can only be assessed in relation to a

particular decision Must be reassessed for each decision People are entitled to make unwise

decisions

Best interests

When deciding on best interests consider Intervention likely to lead to best clinical

outcome Plus Put yourself in the person position and ask

what they would have wanted if they still had capacity

Views of relatives or others who know the person well might be crucial to decision making

The least restrictive option should be used

Use of restraint

Restraint is use or threat of force to make someone do something they are resisting

Is also the restriction of a person’s freedom of movement, whether they are resisting or not

Restraint must reasonably be believed to be necessary to prevent harm

Must be proportional to the likelihood and seriousness of the harm

Relationship to mental health act Mental health act is only relevant

when treating a mental disorder Patients detained under the mental

health act who refuse physical health treatments need to have their capacity assessed

Incapacity should not be assumed in those with mental illness

Relationship to mental health act The mental capacity act cannot be

used to give care involving loss of liberty

Treatments that are prohibited in advanced decisions or treatments that are not consented to by an attorney can still be given under the mental health act if they are to treat a mental disorder