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Mental Capacity Act 2005

Residential Accommodation Training Set

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Gateway reference 8082

Title Mental Capacity Act 2005: ResidentialAccommodation Training Set

Author DH

Publication date May 2007

Target audience PCT CEs, NHS Trust CEs, Care Trust CEs,Foundation Trust CEs, Local Authority CEs

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Description One of five sets of training materials to supportthe implementation of the Mental CapacityAct 2005

Cross reference N/A

Superseded documents N/A

Action required N/A

Timing N/A

Contact details [email protected]

www.dh.gov.uk/mentalcapacityact

For recipient’s use

mailto:[email protected]

http://www.dh.gov.uk/mentalcapacityact

Mental Capacity Act 2005Residential Accommodation Training Set

May 2007

AuthorsUniversity of Central Lancashire

Nicky Stanley

Christina Lyons

Social Care Workforce Research Unit,King’s College London

Jill Manthorpe

Joan Rapaport

Phillip Rapaport

Trafford Law Centre

Michelle Carrahar

Catherine Grimshaw

Simone Voss

Independent consultant

Linda Spencer

AcknowledgementsThe authors wish to thank the following people who contributed to thesetraining materials:

Tony Beresford, Andy Bilson, James Blewett, Debbie Brenner, Mark Brookes,Robert Brown, Marian Bullivant, Jeanne Carlin, Wesley Dowdridge, David Ellis,Debbie Ford, Bill Fulford, Paul Gantley, Marie Girdham, Paul Greenwood, Ann Hartill, Steve Iliffe, Carl Jackson, Jan James, Deborah Klee, Andrew Mantell, Nicola Maskrey, Jasbir Mungur, Lesley Peplar, Liz Price, Vicki Raymond, Dorothy Runnicles, Dennis South, Helen Spandler, Brian Waddelow, John Woolham, Linda Wright and Hester Youle.

The quotations from users and carers were spoken by the Shoestring Theatre Company.

ContentsForeword 1

1 Introduction 3

1.1 Who is this training for? 31.2 Using this training 31.3 Introducing the Mental Capacity Act 41.4 A person-centred approach 51.5 Which staff will be affected by the Mental Capacity Act? 7

2 Defining mental capacity 8

3 Using the Mental Capacity Act in practice 10

3.1 Admission to residential accommodation 103.2 When is an assessment of capacity required? 10

4 Assessing capacity 12

4.1 How is capacity assessed? 124.2 Who assesses capacity? 134.3 Legal tests under the common law and other legislation 154.4 Excluded decisions 164.5 Assessing capacity in practice 174.6 How do I assess capacity? 194.7 Record keeping 20

5 Planning care and support for individuals 23

5.1 Best interests decisions 235.2 Who can be the decision maker? 24

6 Delivering day-to-day care, treatment and support 26

6.1 Acts in connection with care and treatment 266.2 Delivering day-to-day care and support 28

7 Independent mental capacity advocates 32

8 Restraint 35

8.1 Limitations on restraint 358.2 When might restraint be ‘necessary’? 368.3 The Bournewood Case 38


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9 Planning for future care and treatment 39

9.1 Advance decisions to refuse treatment 399.2 When are advance decisions valid and applicable? 419.3 Lasting Powers of Attorney (LPA) 439.4 Who can be an attorney? 449.5 Limitations on LPAs 469.6 Enduring Powers of Attorney 46

10 Safeguards 47

10.1 New criminal offences of ill-treatment or wilful neglect 4710.2 The Court of Protection 4810.3 What is a court-appointed deputy? 4910.4 Resolving disputes 5010.5 The Public Guardian 5010.6 Court of Protection visitors 5110.7 Raising concerns and complaints 52

11 Sharing information 53

12 Research 55

13 Using the Mental Capacity Act to improve practice 57

Glossary 58

Useful sources and references 60

Certificate of Completed Learning Hours 62


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ForewordI am pleased to introduce these excellent new training materials on the MentalCapacity Act 2005 (MCA). They have been developed by the University ofCentral Lancashire (UCLAN) and the Social Care Workforce Research Unit atKing’s College London, and provide in-depth information and guidance onwhat the new MCA will mean to people like you working in health and socialcare. The MCA will apply to everyone who works in health and social careand is involved in the care, treatment or support of people who lack capacityto make their own decisions or to consent to the treatment or care thatis proposed.

The MCA puts the individual who lacks capacity at the heart of decisionmaking and places a strong emphasis on supporting and enabling theindividual to make their own decisions or involving them as far as possible inthe decision-making process.

You will all have a vital role to play in the implementation of the MCA.Your role will begin in April when some parts of the MCA come into force –including the new Independent Mental Capacity Advocate (IMCA) serviceand the new criminal offences of ill-treatment or wilful neglect of a personwho lacks capacity.

The MCA Code of Practice, recently passed by Parliament, provides thefoundation of the training materials. It will be useful to become familiarwith the Code, which explains how the MCA will work on a day-to-day basis.As you will know, because you work in a professional or paid capacity withpeople who lack capacity, you have a duty of regard to the Code. The trainingmaterials complement the Code and are a wide-ranging and comprehensivepackage, which, together with the Code, will ensure that you have therelevant knowledge and skills to meet the demands of the new MCA.

The new MCA will play an important part in safeguarding and protectingthose people in society who lack capacity to do so for themselves. Workingin health and social care, you will be playing a vital part in supporting andcaring for some of the most vulnerable people in society, and I am confidentthat you will rise to the challenge posed by the new MCA.


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The training is interactive and I know that you will be engaged andstimulated by the material. I hope that the training will leave you with a fullunderstanding of your new role in relation to the MCA, and, mostimportantly, of your responsibilities to those in your care who lack capacity.


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Rt Hon Rosie Winterton MPMinister of State (Health Services)

1 Introduction1.1 Who is this training for?

This training is for staff working with the Mental Capacity Act 2005 (MCA) inresidential accommodation in England and Wales. It is designed to be used asthe basis for training sessions for staff working with people whose capacity tomake particular decisions may be uncertain or questionable, and for trainingthose working with people who wish to plan ahead or make their decisions inadvance. It can be used in three main ways:

• as the basis for staff training sessions

• for individual learning and continuing professional development

• as a resource that staff can consult in the course of their day-to-daypractice.

This set of materials is designed to cover the knowledge needed by thoseworking in residential accommodation. The training focuses on how the MCAwill be used in practice. You may also be interested in the other training sets.These are:

• a core set

• a mental health services set

• an acute hospitals set

• a community and primary care set.

For information about how the MCA affects children and young people aged16 and 17, see the Core Training Set.

This training set represents five learning hours for continuing professionaldevelopment purposes and there is a certificate included in the back of thispack which you can complete and forward to your professional trainingorganisation or employer when you have worked through these materials.

1.2 Using this training

The case studies and exercises are included here for discussion and to showhow the MCA and the Code of Practice will work in practice. They are notprovided as examples of what must be done, as each assessment of capacityand best interests-led decision will be determined by individual circumstances.


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http://www.opsi.gov.uk/acts/acts2005/20050009.htm

http://www.opsi.gov.uk/acts/acts2005/20050009.htm

http://www.opsi.gov.uk/acts/en2005/ukpgaen_20050009_en_cop.pdf





This training is focused on the MCA and the Code of Practice. The assessmentof capacity and the process of making decisions are described in the MCA andthe Code of Practice. These can be found at: www.dh.gov.uk/mentalcapacityact

If you are using the PDF version of this training set you can move around itand to other documents mentioned in the text, such as the Code of Practice,by clicking on the underlined chapter headings or references. Where the PDFfeatures recordings of the service users’ and carers’ quotations you can clickon these to hear their words spoken.

In some places this training set employs language and phrases used in thelegislation. References to the relevant sections are included in the text. Youcan find an accessible glossary of relevant terms at the end of this training set.

This training has been developed in collaboration with service users, carersand practitioners who have provided some of the case examples we haveused. We are grateful for their comments and have used some of theirexperiences and views to develop the examples and illustrations in thistraining set. The quotations included here express their opinions of the MCA.These are their views and are not a guide as to how the Act will be applied inspecific situations.

1.3 Introducing the Mental Capacity Act

The MCA is being implemented in two distinct phases in 2007.

In April 2007:

• the new Independent Mental Capacity Advocate (IMCA) service becameoperational in England only

• the new criminal offences of ill-treatment or wilful neglect came into forcein England and Wales

• Sections 1–4 of the Act (the principles, assessing capacity and determiningbest interests) which are essential to how IMCAs do their work also cameinto force but only in situations where an IMCA is involved, and for thepurposes of the criminal offences. Sections 1–4 of the Act will not apply inany other situations until October 2007

• the Code of Practice for the Act was issued and should be followed bythose who must have regard to it in situations where an IMCA is involvedor in relation to the new criminal offences.


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http://www.opsi.gov.uk/acts/acts2005/50009--b.htm#1



In October 2007:

• all other parts of the Act come into force, including the IMCA servicein Wales

• the Code of Practice will have statutory force for all of the Act, not solely inrelation to where an IMCA is involved and/or the criminal offences.

The MCA is different from the Mental Health Act 1983. Some people maybe affected by both Acts. See the training set on mental health forfurther details.

The MCA has been developed to co-ordinate and to simplify the law aboutthe care and treatment of people who lack capacity to make a particulardecision. It is designed to protect the rights of individuals and to empowervulnerable people. The Act introduces new powers and new bodies to protectindividuals and helps to clarify what is expected of staff.

In the past, it was not unusual for some people, for example people withsevere learning disabilities, severe or enduring mental health needs, ordementia, to have decisions made for them. This resulted in numerousinjustices, such as mass institutionalisation, loss of individuality, damage toself-esteem, involuntary sterilisation, loss of control of their own finances andloss of the right to vote.

1.4 A person-centred approach

The underlying philosophy of the MCA is to ensure that individuals who lackcapacity are the focus of any decisions made, or actions taken, on their behalf.This means that staff should adopt an individual approach which centresaround the interests of the person who lacks capacity, not the views orconvenience of those caring for and supporting that person. Staff should makeevery effort to ensure that vulnerable people are helped to make as manydecisions as possible for themselves.

Service users and carers consulted during the development of these trainingmaterials were very positive about the potential role of the MCA in protectingthe rights of people who lack capacity. They expressed the hope that theMCA will contribute to the empowerment and protection of vulnerablepeople. In talking to us, they have emphasised how service users who needhelp with day-to-day care, often of an intimate nature, such as bathing andtoileting, can feel powerless and frightened. They often don’t know how tochange things or complain.


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Jenny, a mental health service user, said:

“It’s about empowerment and protection of vulnerable people, or basicallypeople who are in situations where they become vulnerable and don’tnecessarily have the capacity or might not have the capacity to makeinformed decisions themselves. I think they are very good principles.”

Eileen, an older woman who has been undergoing medical treatment inhospital, commented:

“I think it should be very helpful to have an explicit framework to empowerand protect people who may not be able to make decisions because ofincapacity.”

Service users were very interested in the role of the IMCAs (see Part 7 ofthese materials). Many felt that this type of advocacy should be available to abroader group of people. They noted that family and friends are not alwaysbest placed to act in their best interests or to challenge the recommendationsor decisions made by professional staff.

Jenny commented:

“The most helpful are the IMCAs, because they are trained, because they areknowledgeable, and because they are independent.”

Service users and carers were also very positive about advance decisions (seePart 9 of these materials).

Karen, a woman with severe disabilities who works as a disability awarenesstrainer, says:

“I think everybody should have an advance decision regardless of impairmentor even if you’ve not got an impairment. And I think it’s really very importantfor people to talk about it and I think a very important part of this is thatpeople start to talk about it; because people don’t.”

Isabel, a retired woman in her 80s who has been a service user and carer,says:

“Advance decisions, well I’m seriously thinking about a living will myself ...I think my family want me to make known my wishes and perhaps the Actwill advance decision-making in that way so that people can take moreresponsibility.”

Service users and carers commented that the attitudes and practices of manystaff will have to change and better communication between service providersand service users will be essential.


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Marcus, father of two adult children with mental health problems, says:

“I am afraid to make a complaint as I may be labelled as a busybody orlacking understanding of staff pressures.”

Martin has learning disabilities. He describes the qualities that he thinks staffneed to work with the MCA:

“To be patient and understanding, to be able to look at the person who’sasking the question and not the person that’s supporting them.”

1.5 Which staff will be affected by the Mental Capacity Act?

The MCA applies to all people making decisions for or acting in connectionwith those who may lack capacity to make particular decisions. The staff whoare legally required to have regard to the Code of Practice when acting inrelation to a person who lacks, or who may lack, capacity are as follows:

• people working in a professional capacity, e.g. doctors, nurses, socialworkers, dentists, psychologists and psychotherapists

• people who are being paid to provide care or support, e.g. care assistants,home care workers, support workers, staff working in supported housing,prison officers and paramedics

• anyone who is a deputy appointed by the Court of Protection

• anyone acting as an IMCA

• anyone carrying out research involving people who cannot make a decisionabout taking part.

Exercise: How do you currently manage issues of mental capacity in your work, forexample, when a resident needs hospital treatment but may not understandwhat is happening?

At this point, you have:

• learnt why the MCA was introduced

• identified which staff will be affected by the MCA

• been alerted to the importance of the Code of Practice.


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2 Defining mental capacityMental capacity within the context of the Mental Capacity Act 2005 (MCA) isthe ability to make a decision. A person lacks capacity if he or she is unable tomake a particular decision because of an impairment or disturbance of themind or brain, whether temporary or permanent. This may affect people withdementia, with brain injury, with a learning disability or with mental healthneeds, and those who are unconscious or barely conscious whether due to anaccident, being under anaesthetic or as a result of other conditions. A range offactors such as a stroke can affect a person’s capacity to make a decision, andphysical conditions such as an intimidating or unfamiliar environment can alsodo so. Trauma, loss and physical health problems can also alter a person’scapacity to make a decision.

Most people with mental health problems will have capacity to make decisionsmost of the time. Do not assume that a person with a mental health problemlacks capacity. Information about the MCA and mental health problems,including the Mental Health Act 1983, is available in the Mental HealthTraining Set.

The five core principles of the MCA (Mental Capacity Act, Section 1; Code ofPractice, Chapter 2) should guide all decisions about mental capacity.

BOX 1

The five core principles

1. A person must be assumed to have capacity unless it is establishedthat they lack capacity.

2. A person is not to be treated as unable to make a decision unless allpracticable (doable) steps to help them to do so have been takenwithout success.

3. A person is not to be treated as unable to make a decision merelybecause they make an unwise decision.

4. An act done, or decision made, under this Act for or on behalf of aperson who lacks capacity must be done, or made, in their bestinterests.

5. Before the act is done, or the decision is made, regard must be hadto whether the purpose for which it is needed can be as effectivelyachieved in a way that is less restrictive of the person’s rights andfreedom of action.


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Remember, capacity can vary over time and according to what decisionsneed to be made.

BOX 2

Example

Jacob is a man with multiple impairments – both cognitive andphysical. He lives in a care home. He has no understanding oflanguage. However he does communicate using emotional responsessuch as eye contact, laughter, grimacing, turning his head away, andnot eating.

Jacob’s capacity to make decisions varies according to the decision tobe made. For example, he likes to go to the park on sunny days butdislikes going out when it is windy or raining. He has made this clear tohis care workers by the way that he behaves. He is also very clear aboutwhat food he likes and dislikes. It is important that this is respected.

There are some things that he is not interested in making decisionsabout, for example when to wash and what to wear, and thesedecisions are made for him by the care workers.


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A lack of capacity cannot be established by a person’s age, appearance,condition or any aspect of their behaviour that might lead to unjustifiedassumptions about capacity. In Jacob’s case, he can make some decisions butnot others. Staff meeting him for the first time must not assume that hislimited communication means that he is unable to make any decisions forhimself. Ability to make decisions is also time specific: this means that people’sability to make a decision has to be considered at the relevant time, not inrelation to any future event.

Exercise:Think of some service users you have been involved with in your work whomight lack capacity at the moment. Does their capacity to make decisionsvary over time; does it vary according to the decision they are making?


• learnt how mental capacity is defined

• been introduced to the five core principles of the MCA

• discovered that capacity is time and decision specific.

3 Using the Mental CapacityAct in practice

3.1 Admission to residential accommodation

Assessing whether someone has the ability to make decisions should be partof the initial assessment before a person first moves into any residentialaccommodation. Any preliminary assessment forms, application forms orstandardised tools should include questions that consider matters of capacity.Any staff referring the person to your service should ensure that you areinformed if he or she has difficulties in making decisions. For example, whendiscussing a place in a group home for a disabled person, the care managershould tell the unit manager if the person might not be able to understand orsign the contract.

This is also a good time to check whether any advance decisions have beenmade about treatment (see Part 9 of these materials – Planning for future careand treatment).

3.2 When is an assessment of capacity required?

The core principles of the Mental Capacity Act 2005 (MCA) state clearly thatstaff should always start from an assumption of capacity. However, doubtsabout a person’s capacity may arise because of:

• their behaviour

• their circumstances

• concerns raised by someone else.

BOX 3

Example

Kathryn, who is 83, has severe pain in her legs that restricts hermobility. She has been living in a care home for the last four years anduntil recently has coped well. She has no family in the UK. Over the lastfew weeks, Sarah, her key worker, has noticed that Kathryn has startedto look very dishevelled. She has also become noticeably confused andhas begun getting up and walking around the corridors at night. Shehas stumbled on a number of occasions, although she has not hurtherself. Concerned about Kathryn, Sarah tells her manager about thesituation.


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Exercise:Write down some triggers that might make you think that a person forwhom you are providing care may lack ability to make a decision.


• identified when an assessment of capacity is required

• learnt that you should always start from an assumption of capacity.


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4 Assessing capacity 4.1 How is capacity assessed?

(Code of Practice, 4.49–4.54)

Assessment of capacity needs to be integrated into your usual assessmentprocedures, care planning, reviews and monitoring. For some staff, it willbecome part of the single assessment process or the unified assessment; forothers, it may be part of reviews and monitoring.

There are two questions to be asked if you are assessing a person’s capacityor ability to make a decision:

BOX 4

The two-stage test of capacity (Code of Practice, 4.11–4.13)

1. Is there an impairment of, or disturbance in, the functioning of theperson’s mind or brain?

2. If so, is the impairment or disturbance sufficient that the personlacks the capacity to make that particular decision?

This two-stage test must be used and your records should show it hasbeen used.

It is important to note that an unwise decision made by the person does notin itself indicate a lack of capacity.

All professional staff involved in an assessment should keep adequate recordsthat explain the grounds on which a person is found to have, or lack, capacityto make a specific decision.

The presumption is always that a person has capacity to make a decision.Deciding that a person lacks capacity is a serious step. A formal, clear andrecorded process should be followed where an important decision is to bemade. Day-to-day assessments of capacity may be relatively informal butshould still be written down if a new decision about capacity in a particularsituation is being made.



Any assessment of a person’s capacity must consider the following factors:

• whether they are able to understand the information

• whether they are able to retain the information related to the decision tobe made

• whether they are able to use or assess the information while consideringthe decision.

The person has to be able to do all three to make a decision, and they have tohave the ability to communicate that decision. This could include alternativeforms of communication, such as blinking an eye or squeezing a hand, whenverbal communication is not possible.

If the person being assessed is unable to do any one of the above, they areunable to make the decision for themselves.

4.2 Who assesses capacity?

Anyone caring for or supporting a person who may lack capacity could beinvolved in assessing capacity. This will include family members and carers aswell as nursing and residential care staff, housing, health, social care andprobation staff. In some circumstances, where there are no family or carers, anindependent mental capacity advocate (IMCA) will be assigned. See Part 7 ofthese materials.

The more significant or complex the decision, the greater the number ofpeople likely to be involved. Expert testing by doctors or psychologists will berequired in some cases but, even when used, may not be the only form ofassessment. Who is involved depends on individual circumstances.


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BOX 5

Example

Jim is a 60-year-old man who is currently living in a bail and probationhostel having served a prison sentence for theft. Jim has a history ofalcohol addiction which has caused him to have both physical problems(one of his lower legs has been amputated) and psychological problems(such as short-term and occasional memory problems). Since leavingprison he has begun drinking heavily and often has difficultyunderstanding what is going on, even when he is sober. He has ahistory of getting into debt and borrowing money from vulnerablepeople, some of whom act violently.

Jim is short of cash because he often buys drinks for the other residentsas well as himself. He decides that he will pay his rent in the future,when his luck changes. Staff at the hostel are aware that Jim feels thathe needs to ‘buy the friendship’ of other residents and have concernsthat his inability to manage his money will result in him being evictedfrom the hostel when he is clearly unable to pay his rent. If the issue isnot addressed he may have to go to a care home – an option that Jimhates because he sees it as restrictive. Staff have also heard severalresidents bragging that it is easy to get money from Jim when he isdrunk.

Jim’s probation officer and outreach community mental health nurse arecontacted. They also share the concerns of the hostel staff.

Exercise:You are Jim’s key worker in the hostel – what do you do? How would you assess Jim’s capacity to manage his finances?Who would you involve in the assessment?Where would you record your decision?

It is important to assess whether Jim has the capacity or ability tomanage his own finances and to make the decision that he will not payhis rent.

Remember, there are two questions to be asked if you are assessing aperson’s capacity. Check these again in Box 4 at the beginning of thispart if you have forgotten them.


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BOX 5 (continued)

The key worker decides that Jim is at great risk of homelessness, as heis likely to refuse a care home place, if offered, and will sleep rough.This will exacerbate his physical and mental health problems and leavehim even more vulnerable. The key worker decides to include Jim’sprobation officer in a discussion with Jim about the possibility of Jim’sweekly pension and benefits being paid in a different way. This willallow them to manage his money, and get the rent paid.

At this time Jim appears to be making unwise decisions, rather thandecisions for which he clearly lacks capacity, and if so, the MCA cannotbe used to take over his ability to manage his finances for himself.


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4.3 Legal tests under the common law and other legislation

Although the Mental Capacity Act 2005 (MCA) brings together much of theexisting common law and establishes the way in which capacity must beassessed, some decisions will continue to be dealt with under common law,that is, law established through decisions made by courts in individual cases.Where a legal decision needs to be made, staff must be fully aware of thosedecisions that are covered by the MCA and those which are covered bycommon law and other legislation.

There are several tests of capacity that have been produced followingjudgments in court cases: these are known as common law tests. They covercapacity to:

• make a will

• make a gift – but attorneys can also make gifts (see Part 9.5 of these materials)

• enter into litigation (take part in legal cases)

• enter into a contract

• enter into marriage.

Other professionals will need to be involved in administering these tests ofcapacity under common law. For example, it is advisable that legal advice issought when people who may lack capacity are making a will, and registrarswill continue to decide if somebody has the necessary capacity to understandthe marriage vows.

Other Acts, for example, the Juries Act 1974, have been amended to includethe MCA’s definition of lacking capacity. A lack of capacity to serve on a jurydisqualifies somebody from jury service.

For more information on common law tests and their use see the BMA andLaw Society book Assessment of Mental Capacity – Guidance for Doctors andLawyers, second edition. Please check that you use the latest edition – as thelaw develops and decisions are made about individual cases, some of theguidance will change.

4.4 Excluded decisions

Other decisions excluded from the MCA include:

• consent to sexual relations

• consent to divorce or dissolution of a civil partnership

• consent to a child being placed for adoption or to makingan adoption order

• voting.

Other people can never make these decisions on behalf of another person,regardless of the person’s capacity to make these decisions themselves.

BOX 6

Example

Doris lives in a care home and wishes to get married to a fellowresident, Ted. Her family are appalled at the idea and insist that thehome ‘does something’ to prevent this.

Exercise:You are the manager: what do you do?

Discussion: It is not the responsibility of the home manager to prevent the marriage.

The right to get married is a basic right which is enshrined in lawthrough the Human Rights Act 1998. Although the family maydisapprove, as long as Doris and Ted understand what is involved inmarriage, i.e. that it is a voluntary union for life with rights (e.g. tofidelity) and responsibilities (e.g. to financially maintain each other),they are free to marry. Neither person must be put under any pressureto enter into or not enter into the marriage. If the relatives continue tobe unhappy with the situation, the manager should advise them tocontact a solicitor.


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http://www.bma.org.uk/ap.nsf/Content/Assessmentmental

http://www.bma.org.uk/ap.nsf/Content/Assessmentmental

4.5 Assessing capacity in practice

You must always bear in mind the five core principles and ensure that no oneis treated as unable to make a decision unless all practical steps to help themhave been exhausted and shown not to work.

Steps to be taken (Code of Practice, 3.10–3.16)

• Provide all relevant information but do not burden the person with moredetail than required. Include information on the consequences of making,or not making, the decision. Provide similar information on any alternativeoptions.

• Consult with family and other people who know the person well on thebest way to communicate, e.g. by using pictures or signing. Check if thereis someone who is good at communicating with the person involved.

• Be aware of any cultural, ethnic or religious factors which may have abearing on the individual. Consider whether an advocate (in Part 7 of thesematerials you will see that an IMCA is only likely to be involved in a limitednumber of cases, so we mean a general advocacy service here) or someoneelse could assist, e.g. a member of a religious or community group to whichthe person belongs.

• Make the person feel at ease by selecting an environment that suits them.Make sure it is quiet and unlikely to be interrupted. Arrange to visitrelevant locations; for example, if the decision is about a hospital or short-break stay, visit the place with them. See if a relative or friend can be withthem to support them.

• Try to choose the best time for the person. Try to ensure that the effects ofany medication or treatment are considered. For example, if any medicationmakes a person drowsy, see them before they take it, or after the effect hasworn off.

• Take it easy. Make one decision at a time, don’t rush and be prepared to trymore than once.


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BOX 7

Example

Mrs Aziz is a 73-year-old woman who lives in a care home. English isnot her first language. She has a heart condition which requires regularmonitoring at the local hospital. Mrs Aziz is usually happy to attendhospital appointments with her grandson and a member of staff fromthe home. However, one afternoon she is adamant that she will not goand she will not tell her grandson why. She becomes increasinglyagitated and distressed. Staff and her grandson are concerned, as sheappears to be confused.

You are the home matron, you are anxious about the fact that an extramember of staff is on duty to escort Mrs Aziz to her appointment andthat a taxi is waiting for them but you are also aware that Mrs Aziz isvery distressed. It seems unlikely that she will attend without a lot ofpersuasion.

Exercise:What do you do? Do you think you should assess Mrs Aziz’s capacity?

Discussion:There are a number of issues that should be considered:

1) At this time, Mrs Aziz may not have the capacity to decide whethershe should attend her hospital appointment. However, it may not benecessary for her to attend the appointment today so, if possible, itshould be rebooked for a time by when it may have been possible toassess calmly why Mrs Aziz is so distressed.

It may be inconvenient for the home that additional staff will againhave to be on duty so that Mrs Aziz can attend the appointment, butthe MCA specifically cautions staff not to make decisions that arebased on their convenience.

2) If it is urgent that Mrs Aziz attends the appointment, then it may benecessary to assess her capacity; however, Mrs Aziz is clearlydistressed, so it is unlikely that she will be at her best level offunctioning (remember the five core principles and the good practicepoints outlined above).


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BOX 7 (continued)

3) There may be a simple explanation as to why Mrs Aziz has becomeconfused and refuses to attend the appointment. For example,she may have a urinary tract infection which is causing her to beincontinent and giving rise to mild confusion. This may be why sheis unwilling to explain what the problem is to her grandson as shemay not feel comfortable explaining this to him. Her English may notbe good enough to explain to staff. If Mrs Aziz is not happy to haveanother family member translate, consider whether translation/interpretation services or an independent advocate or communityrepresentative could assist.


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4.6 How do I assess capacity?Anyone who is being assessed for capacity or ability to make a decision shouldbe tested at their best level of functioning for the decision to be taken.This will be achieved by means similar to those listed above. Be aware thatcircumstances may change and an assessment of capacity may have to berepeated or reviewed, over time and for different decisions.

The following list shows the range of areas to be considered. As always, therange of areas to be assessed will be specific to the individual and theircircumstances and the two-stage test of capacity must be applied. Do youremember what this is (see Box 4)?

Factors to be considered in assessing for capacity

• General intellectual ability

• Memory

• Attention and concentration

• Reasoning

• Information processing

• Verbal comprehension and expression

• Cultural influences

• Social context

• Ability to communicate.

Not all of these factors need to be considered in every assessment of capacityalthough, for some formal assessments, a number of these factors will berelevant. A reasonable belief in a person’s lack of capacity to make a particulardecision should be supported by judgements about some of these factors.

Each assessment of capacity will vary according to the type of decision and theindividual circumstances. The more complex or serious the decision, the greaterthe level of capacity required. The questions in Box 8 must be addressed.

BOX 8

Questions to consider (Code of Practice, 4.44–4.49)

• Does the person have a general understanding of what decision theyneed to make and why they need to make it?

• Do they understand the consequences of making, or not making,the decision, or of deciding one way or another?

• Are they able to understand the information relevant to thedecision?

• Can they weigh up the relative importance of the information?

• Can they use and retain the information as part of the decision-making process?

• Can they communicate their decision?


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It is important that all staff involved in assessing a person’s capacity shouldunderstand the nature and effect of the decision and any actions relating tothe assessment.

Exercise:In relation to day-to-day care, how do you currently assess capacity? Does your home or organisation have guidelines on assessing capacity? How might these change because of the MCA?

4.7 Record keeping

All professional staff – that is, nursing home managers, social workers, caremanagers, nurses, doctors, and so on – involved in the care, treatment andsupport of a person who may lack capacity should keep a record of long-termor significant decisions made about capacity. Once a decision about capacityhas been made this should be subject to review because people’s capacityfrequently changes.


The record should be made in the place where you regularly record detailsabout a service user, resident or patient, such as a care plan, file or case notes.The record should show:

• what the decision was

• why the decision was made

• how the decision was made – who was involved? what information wasused?

Such records will be a way to show that staff have acted in accordance withthe MCA and the Code of Practice.

BOX 9

Examples

1. Bethany Jones wants to buy a lottery ticket so she can join in thefun of the draw with other residents on Saturday evening whenwatching TV. She has severe learning disabilities and does notunderstand money. Her care worker writes the following in the casenotes:

“Bethany got very excited about the lottery last week and seems towant her own ticket, I have bought her a ticket and she is holdingon to it. I will tell her if the ticket wins or not when we watch theTV tonight.”

2. Trevor Freeman, who has severe autism, has been troubled byaccumulations of earwax and has been putting sharp objects in hisear. His support worker thinks that he needs some advice and asksthe local pharmacist to suggest some treatment. The pharmacistknows Trevor and suggests some eardrops to soften the wax mightwork. The support worker puts the following in the case notes:

“Just before lunch I helped Trevor with the drops recommended bythe pharmacist. I told Trevor what I was doing but he made nocomment. He was still while I put the drops in and they did notseem to bother him.”


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BOX 9 (continued)

3. After a stay at an activity centre, staff at the group home find thatMandy, who is 20 and has brain damage, is keen to smoke. She asksthe staff to buy her cigarettes and lighters. Her parents are upset andsay that Mandy cannot understand the health risks. The key workerputs the following in Mandy’s file:

“Mandy’s parents have expressed great concern about her smoking,and Mandy has been told about the risks. However, she is adamantthat she has a right to smoke. I have explained to her the areas of thehome where this is possible and that she can spend her money on[cigarettes] but will not be able to pay for other things as a result.”

Exercise:What do you think of these notes? Would you have written anythingdifferently?


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• been introduced to the two-stage test of capacity

• identified what needs to be considered when assessing capacity

• discovered when a legal practitioner should be consulted about assessingcapacity

• noted the importance of recording decisions about assessing capacity.


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5 Planning care and supportfor individuals

5.1 Best interests decisions

Making decisions for people who have been assessed as lacking capacity willbecome an important part of care planning or support planning as a result ofthe Mental Capacity Act 2005 (MCA). All decisions made on behalf of peoplewho lack capacity need to be made in their best interests.

The MCA does not define best interests but identifies a range of factors thatmust be considered when determining the best interests of individuals whohave been assessed as lacking capacity to make a particular decision orconsent to acts of care or treatment. There are a number of steps involvedin deciding what a person’s best interests are.

BOX 10

Determining best interests – the statutory (legal) checklist

• Avoid making assumptions about someone’s best interests merely onthe basis of the person’s age, appearance, condition or behaviour.

• Consider a person’s own wishes, feelings, beliefs and values and anywritten statements made by the person when they had capacity.

• Take account of the views of family and informal carers.

• Can the decision be put off until the person regains capacity?

• Involve the person in the decision-making process.

• Demonstrate that you have carefully assessed any conflictingevidence or views.

• Provide clear, objective reasons as to why you are acting in theperson’s best interests.

• Take account of the views of any independent mental capacityadvocate (see Part 7 of these materials).

• Take the less restrictive alternative or intervention.

BOX 11

Example

Siobhan, who has brain damage, lives in a group home with three otherpeople. The staff are taking some of the service users sailing on thelocal reservoir where there is a centre which provides lessons for peoplewith special needs. Siobhan’s mother, Mary, is extremely anxious abouther daughter participating in such an activity but is also keen forSiobhan to have fun with her friends. Siobhan is a little nervous aboutthe trip, but she is also very excited.

Having discussed the trip with Siobhan, the staff think that she shouldbe encouraged to participate in group activities and that if she decideson the day that she wants to sail then she should be encouraged to joinin. They arrange to meet with Mary to discuss her concerns and agreethat Patrick, Siobhan’s brother, of whom she is very fond, willaccompany her on the trip. He will sail with her if she wants him to orsit with her while the others sail if she decides that she does not wantto join in.

In this case, staff have considered Siobhan’s own wishes and takenaccount of her family’s views before making a best interests decision.

Isabel, who has been a service user and a carer, commented:

“I think that our risk-averse society has got to be really careful not to be toorisk-averse, which is where I think we’ve moved to, which relates to people’sfreedoms.”

5.2 Who can be the decision maker?

The person who makes decisions on behalf of someone who lacks capacity isdescribed in the Code of Practice as ‘the decision maker’.

A decision maker for someone who lacks capacity will vary depending on theindividual’s circumstance and the type of decision involved. Staff working inresidential settings and family members will be decision makers for many day-to-day situations. They also may act as decision makers for longer-termdecisions regarding the care of an individual who lacks capacity. Medicalpractitioners may be decision makers for treatment but are unlikely to bedecision makers for day-to-day social care.


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Exercise:Write down three instances when you might have recently been a decisionmaker for service users or residents.

There are safeguards in the MCA for staff making decisions on behalf ofpeople who lack capacity (Code of Practice, 5.59–5.61).

Staff have statutory or legal protection for best interests decisions providingthat they can demonstrate they:

• have taken reasonable steps to assess capacity to make a decision

• reasonably believe that the person lacks capacity to make that decision

• reasonably believe that the decision is in the person’s best interests.

However, staff will not be protected if they act negligently.

BOX 12

Example

Following a discussion with the home manager, staff make a best interestsdecision on behalf of Esther, a care home resident with severe dementia.Esther has asked the staff to buy a Christmas present for her daughter;however, she cannot remember what her daughter likes. The staff useEsther’s personal allowance to buy the present for her daughter, as theydid in the past when Esther was able to ask them to buy her daughter herfavourite soap. They keep the receipt, give it to the home administratorand write down what they have done in Esther’s file. As they havesufficient information to explain why and what they did, staff will beprotected if anyone asks why they bought such an expensive soap.


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Anyone making a decision in the best interests of a person who lacks capacityis required by the MCA not to make assumptions that cannot be clearlyjustified. This means not letting any prejudices affect the decision. Staff arealso required to involve the person in the decision-making process and mustencourage and enable their participation wherever possible.


• learnt the key elements of consultation and engagement whenestablishing a person’s best interests

• clarified the role of the decision maker

• identified that staff are protected when they make best interests decisionsas long as certain conditions are met.


6 Delivering day-to-day care,treatment and support

6.1 Acts in connection with care and treatment (Mental Capacity Act, Section 5; Code of Practice, Chapter 6)

Staff do not always realise when they are delivering care and treatment in thebest interests of a person who lacks capacity to consent to that care ortreatment. Many of the acts of care they perform are day-to-day ones thatstaff are already undertaking on behalf of others.

Exercise:In relation to day-to-day activities, what care are you already giving onbehalf of people who lack the capacity to consent to that care? How mightyou change what you do because of the Mental Capacity Act 2005 (MCA)?

Acts in connection with personal care may include:

• assistance with physical care, e.g. washing, dressing, toileting, changing acatheter and colostomy care

• help with eating and drinking

• help with travelling

• shopping

• paying bills

• household maintenance

• those relating to community care services.

Acts in connection with healthcare and treatment may include:

• administering medication

• diabetes injections

• diagnostic examinations and tests

• medical and dental treatment

• nursing care

• emergency procedures.

Exercise:You must also consider whether you could provide the care or treatment in aless restrictive way – for example, could a person be given a shower thatthey can manage themselves rather than a bath for which they will need tobe supervised? The three conditions described in Part 5.2 of these materialsmust be met. What are these conditions?


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BOX 13

Example

Viktor is a 79-year-old Ukrainian man who has severe chronicobstructive pulmonary disease which makes it difficult for him tobreathe. He is also a little confused at times. Viktor lives in a carehome. Every winter the local GP visits the home to give the residentsflu immunisation. When the GP tells Viktor that he has come to givehim his flu jab, Victor refuses to have the injection. The GP explainsthat it is particularly important for him to have the flu jab because ofhis breathing problems but Viktor is adamant that he does not want the vaccine.

Exercise:What should Viktor’s key worker do?

Discussion: Both the key worker and the GP might be concerned that Viktor will beparticularly vulnerable to flu without the vaccine because of hisrespiratory problems but they are also aware that Viktor has the rightunder the MCA to make an unwise decision. They are unsure aboutwhether he has the capacity to make the decision.

The MCA is clear that no one should be treated as unable to make adecision unless all practical steps to help them have been exhausted.

Exercise:What are your thoughts on this example? Have you come across asimilar situation in your work? If so, how did you decide what was inthe person’s best interests?

In Viktor’s case, the timing of the two-stage test will be particularlyimportant because of the fluctuations in his confusion.


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BOX 13 (continued)

Remember, any assessment of a person’s capacity must consider thefollowing factors:

• their ability to understand and retain information related to thedecision to be made

• their ability to use or assess the information while considering thedecision

• their ability to communicate the decision – by any means.

Involving a Ukrainian speaker or interpreter may be helpful. However, ifViktor is assessed as being unable to do any of the above, then he isunable to make the decision himself. The GP will then have to decidewhat is in Viktor’s best interests.


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6.2 Delivering day-to-day care and support

For care assistants or support staff making day-to-day decisions on a regularbasis, no formal assessment procedures or records are required. For example,in the case of Mrs Ali, a 72 year old resident of a care home who hasdementia and needs a care assistant to help her with breakfast, to get washedand dressed, to go to the toilet and many other tasks, frequent recording ofeach decision is not required. However, her care plan should show that hercapacity to make decisions about these activities has been assessed at somepoint and that such decisions are being made in her best interests, andcontinually reviewed until such time as she gains the capacity to refuse orconsent herself.

If a decision is challenged, staff must be able to explain why they had areasonable belief in the person’s lack of capacity to make the decision inquestion. It is therefore advisable to make notes of new decisions in a person’sfile or case notes. This applies even to those day-to-day decisions which mightnot previously have been recognised as decisions about capacity.

The example in Box 14 highlights some of the practical issues staff might facein clarifying the law and in respecting the rights of individual service userswhile maintaining their duty of care to others. It may be helpful for courseparticipants to have some of the information relating to this case prior to atraining day with a view to them coming to discuss the issues with otherparticipants. If you are reading these training materials on your own, then wesuggest that you work though the case, pausing to respond to the points ateach section of these materials.

BOX 14

Example

Wayne is a 26-year-old man living in supported accommodation in thecommunity. He suffered a severe brain injury in a road traffic accidentfive years ago. After surgery, he underwent a long period of hospitalrehabilitation before moving to adapted accommodation with two othermen, with 24-hour staff support. He attends college one day a weekand participates in other community activities on a regular basis.

Wayne is a wheelchair user, who gets on well with people. He hasproblems understanding some situations. In the course of hiscompensation case, Wayne was assessed as not being capable ofmanaging his financial affairs, which were then placed under the (then)Court of Protection and managed by receivers (his parents) who will, fromOctober 2007, become his deputies.

Wayne arranges for a prostitute to visit him at the supported house.Staff are initially unaware that she is anything other than a friendvisiting. However, after one such visit, they realise that Wayne ispaying her for sex.

Staff want to know:

• Wayne’s legal position

• what the implications are for staff and for the other residents

• whether Wayne is fully aware of any risks.

A member of staff says:

“This place is turning into a brothel.”


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BOX 14 (continued)

However: 1. A brothel is legally defined as a place: ‘where two or more

individuals are working together to provide sexual services’, whichclearly does not describe this situation. It is not illegal to pay forsexual services, and therefore Wayne, who has organised this forhimself and paid for the service, has not committed any illegal act.

2. Furthermore, as the staff have not been involved in any of thearrangements, they have therefore not been involved in procuringsexual services. Despite this, some staff are still concerned abouttheir role and their duty of care in particular in relation to issues ofmental capacity:

• Wayne’s financial vulnerabilityWayne is considered at risk of financial exploitation. He has beenconsidered not capable of managing his finances and staff say hehas difficulty understanding the value of money and budgeting.

• Wayne’s sexual healthStaff are unsure whether Wayne will take responsibility for hisown sexual health, and whether he has explained to the prostitutehis particular special needs as a wheelchair user with limitedmobility and some sensory impairment.

• The safety of other residents and staffFurther staff anxieties are raised when on another occasion (alsoarranged by Wayne without discussion with staff) a second womanarrives unaware that Wayne is a wheelchair user and refuses tocontinue. As a result of this, concern was raised about the possibleimpact on the other residents and staff if there is confrontation orconflict arising from Wayne’s arrangements. The woman concernedwas verbally abusive to Wayne and made comments about wastedtime and loss of income.

• How to manage the needs and concerns of the other residentsWhen the nature of Wayne’s visitors becomes apparent, the otherresidents, neither of whom is capable of independently organisingsomething similar, request staff help to organise similararrangements.

Assessment:In discussion with Wayne, it becomes apparent that his views on sexualhealth are somewhat naïve (according to the staff) but that he is


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BOX 14 (continued)

capable of thinking through these issues with some staff support. Thediscussions with Wayne include an acknowledgement of his right toorganise such visits but emphasise his responsibility to those withwhom he shares his accommodation and his need to recognise the dutyof care imposed on staff by his residence in the group home. The staffask Wayne to consider discussing the matter with his parents as theyhave queried why he has not participated in some routine activities andstaff have told his parents that he has chosen to spend his money onother things. Routine discussions with his parents about hisexpenditure form part of a pre-existing contract between Wayne,his parents and staff.

Following these discussions, an agreement is proposed whereby Waynewill talk with his key worker in advance when he wishes to organise avisit by a prostitute, and that it might be timed to coincide with anouting or other activity which involves the other residents being awayfrom the building. The advance notice also gave staff an opportunity toremind Wayne about the importance of safe sex and the dangers ofputting himself in a financially vulnerable position.

Critical reflectionAlthough there is no question in this case as to Wayne’s capacity toconsent to sexual relationships, the issues the case raises are importantin terms of the staff’s understanding of their position and theirobligations not just to Wayne but also to other residents.

Exercise:What do you think about this example? What would happen in yourservice setting?

Source: Summary and development of an example from the BritishPsychological Society (2006), Assessment of Capacity in Adults: InterimGuidance for Psychologists, pp.111–113.


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• identified instances of care and treatment where staff are permitted tomake best interests decisions

• explored some of the practical issues that staff face in clarifying the lawand respecting the rights of individual service users while maintainingtheir duty of care.

http://www.bps.org.uk/downloadfile.cfm?file_uuid=8B5A05CE-1143-DFD0-7E4E-65C98DAF0CA1&ext=pdf

http://www.bps.org.uk/downloadfile.cfm?file_uuid=8B5A05CE-1143-DFD0-7E4E-65C98DAF0CA1&ext=pdf

The Mental Capacity Act 2005 (MCA) introduces a duty on the NHS and localauthorities to involve an independent mental capacity advocate (IMCA) incertain decisions. This ensures that, when a person who lacks capacity tomake a decision has no one who can speak for them and serious medicaltreatment or a move into accommodation arranged by the local authority orNHS body (following an assessment under the NHS and Community Care Act1990) is being considered, an IMCA is instructed.

The IMCA has a specific role to play in supporting and representing a personwho lacks capacity to make the decision in question. They are only able to actfor people whose care or treatment is arranged by a local authority or theNHS. They have the right to information about an individual, so they can seerelevant health and social care records.

The duties of an IMCA are to:

• support the person who lacks capacity and represent their views andinterests to the decision maker

• obtain and evaluate information, both through interviewing the person andthrough examining relevant records and documents

• obtain the views of professionals and paid workers providing care ortreatment for the person who lacks capacity

• identify alternative courses of action

• obtain a further medical opinion, if required

• prepare a report (that the decision maker must consider).

In England, regulations have extended the role of IMCAs so they may also beasked to represent the person lacking capacity where there is an allegation ofor evidence of abuse or neglect to or by a person who lacks capacity. In adultprotection cases, an IMCA can be appointed even though the person hasfamily or friends.

Similarly, the regulations also allow IMCAs to contribute to reviews for peoplewho have been in accommodation arranged by the local authority or NHSbody or who have been in hospital for more than 12 weeks and who havenobody else to represent them.

The local authority or NHS body may instruct an IMCA to represent theperson lacking capacity in either adult protection cases or accommodationreviews if they consider that it would be of ‘particular benefit’ to the person.


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7 Independent mental capacityadvocates(Mental Capacity Act, Sections 35–41; Code of Practice, Chapter 10)



The National Assembly for Wales has also extended the role of IMCAs inWales to cover accommodation reviews and adult protection cases.

BOX 15

IMCAs always represent the interests of:

• those who have been assessed as lacking capacity to make amajor decision about serious medical treatment or a longer-termaccommodation move, if they have no one else to speak for themother than paid carers, and if their care or accommodation is arrangedby their local authority or NHS.

IMCAs may represent the interests of:

• those who have been placed in accommodation by the NHS or localauthority, and whose accommodation arrangements are beingreviewed, and/or

• those who have been or are alleged to have been abused orneglected or where a person lacking capacity has been alleged orproven to be an abuser (even if they have friends or family).


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An IMCA is not a decision maker for the person who lacks capacity. They arethere to support and represent that person and to ensure that decision makingfor people who lack capacity is done appropriately and in accordance withthe MCA.

In England, the local authority area where a person currently is (e.g. inhospital) is responsible for making the IMCA service available. In Wales,local health boards have this responsibility. If the decision is about treatment,the relevant NHS body must instruct an IMCA, if it is about a move it will beeither the local authority or the NHS body.

To contact an IMCA, look for details on the IMCA website.

BOX 16

Example

Tony is 62 and has severe learning disabilities. He lives in supportedaccommodation funded by the local authority. For some time Tony hasbeen unhappy in his current home, and so when a place becomesavailable in another house in another local authority, Tony’s caremanager suggests Tony go and visit the house to see if he would liketo move there.

Tony’s sister has recently died. There is now no one to take an interestin Tony’s welfare outside the professional circle.

Exercise:You work with Tony as his key worker. You are concerned that there isno one except the care manager to see that his interests are beingprotected.

Why is Tony entitled to an IMCA? Which local authority should providethis; the one where he now is or the one he may be moving to? Findout how to contact your local IMCA service.


34


• noted that there is a duty to instruct an IMCA in certain circumstances

• identified who an IMCA can represent

• noted that an IMCA is not a decision maker

• confirmed that the local authority or (in Wales) local health board wherethe person is currently living is responsible for commissioning the IMCAservice

• identified who instructs an IMCA

• noted that the IMCA’s report must be considered.

http://www.dh.gov.uk/en/Policyandguidance/Healthandsocialcaretopics/Socialcare/IMCA/index.htm


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8 Restraint (Mental Capacity Act, Sections 5–6; Code of Practice, 6.11–6.19)

8.1 Limitations on restraint

In circumstances where restraint needs to be used, staff restraining a personwho lacks capacity will be protected from liability (for example, criminalcharges) if certain conditions are met. There are specific rules on the use ofrestraint, whether verbal or physical, and the restriction or deprivation ofliberty, as outlined in the Code of Practice, 6.11–6.19 and 6.40–6.53 andDepartment of Health and Welsh Assembly Government guidelines(www.dh.gov.uk/assetRoot/04/06/84/61/04068461.pdf andhttp://new.wales.gov.uk/docrepos/40382/40382313/childrenyoungpeople/childrenfirst/603793/framework-rpi-e.pdf?lang=en).

If restraint is used, staff must reasonably believe that the person lacks capacityto consent to the act in question, that it needs to be done in their best interestsand that restraint is necessary to protect the person from harm. It must also bea proportionate or reasonable response to the likelihood of the person sufferingharm and the seriousness of that harm. Restraint can include physical restraint,restricting the person’s freedom of movement and verbal warnings, but cannotextend to depriving someone of their liberty (the difference between restraintand deprivation of liberty is discussed in Part 8.3 of these materials).

Restraint may also be used under common law in circumstances where there isa risk that the person lacking capacity may harm someone else.

BOX 17

Conditions that may justify restraint

• The person taking action must reasonably believe that it is necessaryto perform an act which involves restraint in order to prevent harm tothe person lacking capacity.

• Restraint must be a proportionate response (i.e. be only as seriousand go on only as long as necessary) to the likelihood of the personsuffering harm and to the potential seriousness of that harm.

http://www.dh.gov.uk/assetRoot/04/06/84/61/04068461.pdf

http://new.wales.gov.uk/docrepos/40382/40382313/childrenyoungpeople/childrenfirst/603793/framework-rpi-e.pdf?lang=en

http://new.wales.gov.uk/docrepos/40382/40382313/childrenyoungpeople/childrenfirst/603793/framework-rpi-e.pdf?lang=en




8.2 When might restraint be ‘necessary’?

Section 5 of the Mental Capacity Act 2005 (MCA), which provides protectionfrom liability in certain circumstances as discussed above, will not protect stafffrom liability for any action they take that conflicts with a decision made bysomeone acting under a Lasting Power of Attorney or a deputy appointed bythe Court of Protection whose authority extends to such decisions: thisincludes the use of restraint. For more information, see Chapter 6 of theCode of Practice.

BOX 18

Example

Sid is a 52-year-old man with brain damage. He has severeconstipation, which is causing him discomfort. The GP prescribes anenema, but when the staff at the care home where he lives try toadminister it, Sid becomes extremely agitated and distressed. Althoughstaff try to explain to Sid why he needs the enema, Sid does not appearto understand and refuses to lie down for the procedure.

Exercise:You are the nurse who is supposed to administer the enema. What doyou do?

Discussion:All other ways of relieving Sid’s constipation need to be considered.If this is not possible and Sid still refuses, staff will need to assesswhether Sid has the capacity to consent to this treatment. If it isdetermined that he does not, then staff need to be clear thatadministering the enema is in Sid’s best interests and any restraint usedis proportionate to Sid’s problem. If challenged, staff will need to beable to demonstrate that to the best of their knowledge there was noother way of resolving Sid’s problem.


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BOX 19

Example

Cynthia is a 78-year-old woman who has dementia. For the last threeweeks she has stayed in Mill House care home where she is having ashort break.

One morning she puts on her coat and tells the staff that she is goinghome because she misses her husband. She has not seen him since herfirst day at Mill House when staff told him not to visit again becauseCynthia had become very distressed when he left.

Cynthia tries to leave but finds that she cannot open the door as itappears to be locked and no one will open it for her. She becomesagitated and tearful. Staff distract Cynthia by switching on her favouriteTV programme and very soon Cynthia has forgotten the incident.

Exercise:You are the senior care worker in charge for the day. What do you do?

Discussion: Cynthia may not have the capacity to decide whether she can leave thehome, but the decision to physically stop her leaving by locking thedoor and refusing to open it may amount to a deprivation of her liberty,as may be the earlier decision to stop her husband from visiting if theserestrictions are ongoing.

Moreover Cynthia’s situation may contravene the European Court’sdecision in relation to the Bournewood Case (see Part 8.3 below). Ifit is still appropriate for Cynthia to remain at Mill House, the homemanager should consider changing her decision and allow Cynthia’shusband to visit her. If this still causes Cynthia distress, staff will needto work with her to reduce the distress when his visit ends. Specialistadvice may be helpful here (e.g. from the local dementia team, theclinical psychology service and so on).


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Exercise:Think about your work and the situations where you have used restraint.How would you justify your actions? If you were unsure about usingrestraint with or restricting an individual in a particular situation, whatwould you do?

8.3 The Bournewood Case

This is a legal case that tested the boundary between appropriate restraintor restriction and the loss of human rights under Article 5 of the EuropeanConvention on Human Rights – the right to liberty. The government isseeking to amend the MCA to take into account the issues raised by this case.

The patient was in hospital and lacked the capacity to say whether he wouldstay in hospital or accept treatment. He was not detained under the MHA.

The European Court of Human Rights determined that “the key factor in thepresent case [is] that the health care professionals treating and managing theapplicant exercised complete and effective control over his care andmovements”. The Court found that “the concrete situation was that theapplicant was under continuous supervision and control and was not freeto leave”.

The distinction between restraint and the loss of liberty, which took this caseinto the European Court, is “one of degree and intensity, not one of natureand substance”. Any deprivation of liberty can only be lawful if accompaniedby safeguards similar to those surrounding detention under the MHA.

The Department of Health (December 2004) and the Welsh AssemblyGovernment (January 2005) have issued guidance and a briefing sheet whichshould already be included in service providers’ policies. At the time of writing,the Government is taking legislation through Parliament to establish a new setof safeguards in the MCA for people who need to be deprived of their libertyin their best interests and who cannot make the necessary decisions forthemselves.


• confirmed that restraint may only be used in limited circumstances

• learnt that the use of restraint must always be recorded

• been alerted to the Bournewood Case and the need to seek advice insuch circumstances.


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http://www.wales.nhs.uk/sites3/Documents/438/WHC%5F2005%5F005The%20BournewoodCase%2Epdf

http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4136790


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9 Planning for future care andtreatment(Mental Capacity Act, Sections 24–27; Code of Practice, Chapter 9)

9.1 Advance decisions to refuse treatment

The Mental Capacity Act (MCA) requires that advance decisions are made in aparticular way. It is essential that professionals involved in the care of a personwho lacks capacity understand the difference between an advance decisionto refuse treatment and other expressions of an individual’s wishes andpreferences.

An advance decision to refuse treatment enables an adult to make treatmentdecisions in the event of their losing their capacity at some time in the future.Such a decision properly made is as valid as a contemporaneous decision(made at the time) and so it must be followed, even if it would result inthe person’s death. If an advance decision involves refusing life-sustainingtreatment, it has to be put in writing, signed and witnessed but, otherwise,advance decisions can be verbal or if written neither signed nor witnessed.

Even in the absence of an advance decision, people’s views and wishes,whether written down or not, should be used to assist in planning appropriatecare for the individual and making decisions in their best interests. Suchstatements of wishes and feelings are important, particularly if they are writtendown, but are not legally binding in the same way as advance decisions.



BOX 20

Example

Miriam, aged 82, lives in a nursing home. She is physically disabledand uses a wheelchair. She has become increasingly deaf in recent yearsand, in order to improve her hearing, she has her ears syringed at thelocal health centre. She finds this procedure painful and distressing andtells the care assistant who accompanies her there that she never wantsto have this done again. The care assistant makes a note of this inMiriam’s file when they return to the home. Three years later, Miriam isincreasingly confused, and she is also very deaf. The GP suggests thatshe has her ears syringed again and considers that Miriam lackscapacity to consent to this treatment. However, the nursing homemanager notes from Miriam’s file that she has said in the past that shedoes not want this treatment ever again. This is an advance decisionthat must be followed as Miriam had the capacity to make the advancedecision at the time it was made.


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Jenny, a mental health service user, says:

“In terms of advance decisions, where someone’s anticipating that at somepoint they’re going to lack capacity, I think that’s a really good thing. Becauseyou often get situations where people verbally express what their wishes areto relatives, or carers, or people who have an emotional attachment andthen, if they’re in a situation where they lack capacity that person’s notnecessarily able to make a decision in the best interest for them because theyare too emotionally involved. And so if someone can put something inwriting beforehand and make sure that that is followed then that’s essentiallya really good idea, it’s a really good thing.”

9.2 When are advance decisions valid and applicable?(Code of Practice 9.40)

An advance decision is valid when:

• it is made when the person has capacity

• the person making it has not withdrawn it

• it is not overridden by a later Lasting Power of Attorney (LPA) that relatesto the treatment specified in the advance decision

• the person has acted in a way that is consistent with the advance decision.

An advance decision is applicable when:

• the person who made it does not have the capacity to consent to or refusethe treatment in question

• it refers specifically to the treatment in question

• the circumstances the refusal of treatment refers to are present.

An advance decision to refuse life-sustaining treatment is applicable when:

• it is in writing, including being written on the person’s behalf or recorded intheir medical notes

• it is signed by the person making it (or on their behalf at their direction ifthey are unable to sign) in the presence of a witness who has also signed it

• it is clearly stated, either in the advance decision or in a separate statement(which must be signed and witnessed), that the advance decision is toapply to the specified treatment, even if life is at risk.

But an advance decision is not applicable if there are reasonable grounds forbelieving that circumstances now exist which the person did not anticipate atthe time they made the advance decision and which would have affected theirdecision had they been able to anticipate them (e.g. new treatment), or if theyhave behaved in a way that raises doubts about or contradicts theiradvance decision.

Staff must be able to recognise when an advance decision to refuse treatmentis both valid and applicable. A best interests decision to provide treatmentcannot override a valid and applicable advance decision that refuses thattreatment. Protection from liability will not apply if a valid and applicableadvance decision is ignored.


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The decision of an attorney acting under a registered LPA will override anadvance decision if the LPA has been made after the decision and gives theattorney the right to consent to or refuse the treatment specified. There arespecial rules for people who are detained under the Mental Health Act 1983 –in some circumstances their refusal of treatment for a mental disorder may beoverridden (see the training set for staff working in mental health settings forfurther discussion of this).

Advance decisions may not be valid if the individual made the decision whilethey had capacity and if they then did something clearly inconsistent with theadvance decision.

BOX 21

Example

Marvin is a 78-year-old man with cancer of the larynx. He has lived in acare home for the last three years. When his cancer was diagnosed hemade an advance decision indicating that he did not wish to havechemotherapy or radiotherapy at any time. Staff at the home andMarvin’s GP are aware that he has made an advance decision.

When Marvin’s condition deteriorates and he becomes unconscious,staff contact his sister who is his next of kin, and she insists that anoncologist sees Marvin so that he can be assessed for chemotherapyor radiotherapy.

Exercise:What do you do?

Discussion:It is important to establish that the advance decision is both valid andapplicable. If the staff are sure that the conditions for establishing thevalidity of Marvin’s advance decision have been met (see above) thenhis wishes must be respected. Staff will need to explain this to Marvin’ssister and, of course, make arrangements for palliative care with thelocal services.


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As part of the empowering of residents and patients, staff need to developmeans of promoting, implementing and recording this form of advanceplanning. For example, many Mental Health Trusts and voluntaryorganisations are developing guidance on the use of advance decisionsand expressions of wishes.

Exercise:Think about your own health care in the future. Are there aspects oftreatment you might not want to receive? How would you describe thecircumstances under which you would want treatment to be withheld?

9.3 Lasting Powers of Attorney (LPA)(Mental Capacity Act, Sections 9–14; Code of Practice, Chapter 7)

What is Lasting Power of Attorney?

Under an LPA an individual can, while they still have capacity, appoint anotherperson to make decisions on their behalf about financial, welfare or healthcarematters. The person making the LPA chooses who will be their attorney.They can allow the attorney to make all decisions or they can choose whichdecisions they can make. LPAs replace Enduring Powers of Attorney (EPAs)(made under the Enduring Power of Attorney Act 1985). Guidance on LPAscan be found at: www.guardianship.gov.uk or www.publicguardian.gov.uk(from October 2007).

When acting under an LPA, an attorney has the authority to make decisionson behalf of the person who made it, if they can no longer make thesedecisions for themselves. In these cases, an attorney is not there simply to beconsulted (although they should still be consulted if appropriate where otherdecisions are being made). Attorneys must act in accordance with the Code ofPractice.

In order to be valid, an LPA must be registered with the Public Guardian andon the prescribed form. There are two different forms of LPA to cover a rangeof circumstances. These are:

• personal welfare (including healthcare decisions)

• property and affairs (financial matters).

A personal welfare LPA will only take effect when a person has lost capacityto make these sorts of decisions and the LPA has to be registered with theOffice of the Public Guardian. If it is not registered, it cannot be used. An LPAconcerning financial matters will take effect immediately it is registered unless


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http://www.guardianship.gov.uk

http://www.publicguardian.gov.uk



the donor specifies that it should not take effect until they lose capacity tomake these decisions.

The person making the LPA is the donor who donates or hands overresponsibility to make decisions under specified circumstances. The personappointed to make the decisions under the LPA is the donee, also known asthe attorney. One attorney may hold a number of LPAs for different people;for example, a daughter can have an LPA for each of her parents. A bankofficial can have LPAs for a number of clients. A person can choose one or anumber of people to hold his or her LPA, such as a partner and adult children.

Donors can authorise their attorney(s) to act in relation to all mattersconcerning their property and financial affairs or they can list specific matterswhere they wish the attorney(s) to have power to act. So Jack, a 45-year-oldman with multiple sclerosis who lives in supported accommodation, hasappointed his brother as a financial attorney under an LPA to manage hisfinancial investments, while Jack retains control of his day-to-day expenseswith support from the staff.

It is important to remember that an LPA may describe treatment that theindividual doesn’t want but it cannot give attorneys the power to demand orinsist upon a specific treatment that healthcare professionals do not believe tobe clinically necessary or appropriate.

9.4 Who can be an attorney?

An attorney could be a family member, friend, carer or professional, such as alawyer. The Code of Practice advises that health and social care staff shouldnot act as attorneys for people they are supporting unless they are also theclose relatives of the person who lacks capacity.

Frances has an eating disorder and has been admitted to hospital forcompulsory treatment over the past years:

“I think the MCA could be used by people with eating disorders to promptthem to choose an LPA, and to facilitate discussion about their wishes shouldthey be deemed to lack capacity to make decisions in their best interests inthe future.”


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Attorneys must be over 18 years old and must not be bankrupt (for propertyand affairs LPAs only). Most attorneys will be named individuals. However, forproperty and affairs LPAs, the attorney could be a trust or part of a bank.

BOX 22

Example

Mrs Singh has been a resident of Ivy House, a care home, for the lastfive years. The manager of the home thinks that she should move fromthe residential side of the home to the nursing part of the home as herdisabilities have increased and her needs can no longer be met by theresidential care section.

Funding is available for the transfer but Mrs Singh does not appear tounderstand what the manager is telling her. Sometime ago, Mrs Singhasked her daughter Sanita to act as her personal welfare attorney tomake decisions about personal welfare and healthcare (this wasregistered with the Office of the Public Guardian on the prescribedform). When the manager talks to Sanita about the situation, Sanitaadvises the manager that she can make the decision on her mother’sbehalf because she is an attorney for her mother.


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Exercise:You are the manager of the home, what should you do?

Discussion: It is important to establish the legality of the LPA. To be legally binding itneeds to have been registered at the Office of Public Guardian and thecontents need to be applicable to the decision being made. Providing theserequirements are met and that her mother lacks capacity (you need to ensurethat the two-stage test applies), Sanita can agree to or refuse the transfer.

Exercise: How will you record this? Who needs to know?

9.5 Limitations on LPAs

An attorney can only make certain gifts from the property and estate of theowner, for example, to friends and relatives, including the attorney, oncustomary occasions such as birthdays, Christmas, Diwali or any religiousfestival the person lacking capacity would be likely to celebrate. Anycustomary gift or charitable donation must be reasonable in the circumstancesand take into account the size of the estate. Limitations may also be specifiedin the LPA.

9.6 Enduring Powers of Attorney (Mental Capacity Act, Schedule 4; Code of Practice, Chapter 7)

Enduring Powers of Attorney (EPAs) were established by the Enduring Powersof Attorney Act 1985. They allow the appointed attorney to manage propertyand financial affairs on behalf of the donor. At the onset of the donor’sincapacity, the attorney must register the EPA with the Office of the PublicGuardian in order for their authorisation under the EPA to continue. No newEPAs can be set up after the MCA is implemented, but existing EPAs willcontinue to be valid whether registered or not (Code of Practice, Chapter 7).Donors can choose to replace their existing EPA with an LPA if they stillhave capacity.


• learnt when an advance decision is valid

• learnt when an LPA is valid

• identified who can be an attorney

• discovered that LPAs can be used for a variety of decisions but can’t beused to demand specific care or treatment

• confirmed that existing EPAs will continue to be valid.


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http://www.opsi.gov.uk/acts/acts2005/50009--p.htm#sch4




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10 Safeguards (Code of Practice, Chapter 14)

This part of the Code of Practice describes the way in which staff and peopleacting with formal powers under the Mental Capacity Act 2005 (MCA)(i.e. attorneys and deputies), need to work with agencies responsible for theprotection of adults who lack capacity to make decisions. All health and caresettings, such as a care home, should have their own formal protocols andprocedures for the protection of vulnerable adults (adult protection or adultsafeguarding policy). The MCA needs to be incorporated into them.

Staff need to know what safeguards are available for those affected by theMCA so that they can inform service users and carers about opportunities toraise complaints and resolve disputes. They also need to feel confident thattheir concerns will be addressed.

10.1 New criminal offences of ill-treatment or wilful neglect

The MCA introduces the new criminal offences of ill-treatment or wilfulneglect (Mental Capacity Act, Section 44; Code of Practice, Chapter 14).

BOX 23

It is now a criminal offence if the following ill-treat or wilfullyneglect anyone in their care:

• people who have the care of a person who lacks capacity

• an attorney under a Lasting Power of Attorney (LPA) or EnduringPower of Attorney (EPA) (see Part 9.3 of these materials)

• a deputy appointed by the court (see Part 10.3 of these materials).

Allegations of offences may be made to the police or the Office of thePublic Guardian. They can also be dealt with under adult protectionprocedures (via adult services in social services departments). The penalty forthese criminal offences may be a fine and/or a sentence of imprisonment forup to five years.

Isabel said:

“I was pleased to see that the Act introduces a new criminal offence of ill-treatment or neglect of a person. I’m so pleased to see that within the Actbecause we’ve found it very difficult to pinpoint how some retribution cantake place and this makes it a criminal offence. It’s a step forward.”




BOX 24

Example

Marjorie is 83 and has dementia; she lives in a care home. A newmember of the night staff assists Marjorie at bedtime. She is concernedthat Marjorie has bruises on her upper arm and that her incontinencepads do not appear to have been changed during the day. The otherstaff give no good reason, and the care plan notes are sketchy andappear to be incomplete. Marjorie is frightened and tearful.

The care assistant alerts the manager who contacts the police and thelocal Adult Protection Service and Inspection Unit (Commission forSocial Care Inspection or Care Standards Inspectorate in Wales). A jointpolice investigation with social services is carried out and a member ofstaff is suspended while the police refer the matter to the CrownProsecution Service. An independent mental capacity advocate (IMCA)may be instructed in these circumstances even if Marjorie has familyand/or friends.


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Exercise:You are a home manager, what will you tell staff about the new offences?What might be the benefits and disadvantages of telling them? How willyou protect the rights of people in your home to refuse care, without leavingyourself open to an allegation of wilful neglect?

10.2 The Court of Protection (Mental Capacity Act, Part 2; Code of Practice, Chapter 8)

The Court of Protection is a specialist court with powers to deal with mattersaffecting adults who may lack capacity to make particular decisions. The Courtis able to hear cases at a number of locations in England and Wales. It coversall areas of decision making under the MCA and can determine whether aperson has capacity in relation to a particular decision, whether a proposedaction would be lawful, whether a particular act or decision is in a person’sbest interests and the meaning or effect of an LPA in disputed cases.

The Court of Protection plans to be an accessible, regional court. It aims to beinformal and quick. It takes over the duties of the former Court of Protectionand matters regarding healthcare and personal welfare that were previously

http://www.opsi.gov.uk/acts/acts2005/50009--c.htm



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dealt with by the High Court. The Court charges a fee for applications –information on fees and forms are available on the Court’s website.

It is expected that the Court of Protection will only be involved whereparticularly complex decisions or difficult disputes are involved.

Either the Court of Protection or the Family Court may deal with health andwelfare decisions concerning 16- and 17-year-olds who lack capacity to makeparticular decisions (see Part 13 of the Core Training Set of these trainingmaterials).

The Public Guardian is the registering authority for LPAs and court-appointeddeputies (see Part 10.5). The Public Guardian also investigates complaintsabout how an attorney under an LPA or a deputy is exercising their powers.

10.3 What is a court-appointed deputy?

Court-appointed deputies are professionals or people (or a trust corporation inproperty and affairs cases) appointed by the Court of Protection to makedecisions on behalf of an incapacitated adult in their best interests. This wouldtake place, for example, where there is a serious dispute among carers.

BOX 25

Example

The son and daughter of Mrs Ryan, who has Lewy body dementia,argue fiercely over which care home their mother should move to.Although she lacks the capacity to make this decision herself, she hasa significant amount of money and can easily pay the care home fees.Her solicitor acts as attorney in relation to her financial affairs under anearlier registered EPA, but has no power and is unwilling to getinvolved in this family dispute, which is becoming increasingly bitter.The Court of Protection makes an order in Mrs Ryan’s best interests,having taken account of her children’s views and decides which carehome will best meet her needs. Due to the ongoing dispute overfinancial matters between Mrs Ryan’s children, a deputy is appointedto act on Mrs Ryan’s behalf because the solicitor is no longer willingto be involved.


The appointment of a deputy will be limited in scope and duration. This is toreflect the principle of the less restrictive intervention. A deputy could be afamily member, care worker or any other person the Court finds suitable.

10.4 Resolving disputes

The Court of Protection will only act in disputes when alternative solutionsto resolving them have been considered and tried. This should happen beforeany application to the Court of Protection. The Court will consider ifappropriate alternatives have been pursued when an application is made.The Court determines which applications it will accept.

Alternative methods for resolving disputes include the following:

• Disputes between family members may be dealt with informallyor via mediation.

• Disputes about health, social care or other welfare services may be dealtwith by informal or formal complaints processes.

• Advocacy services may be able to help resolve a dispute.

Disputes regarding certain medical treatments – ones that are extraordinaryor irreversible – may go directly to the Court of Protection.

10.5 The Public Guardian

The MCA creates a new public office – the Public Guardian – with a range of functions that contribute to the protection of people who lack capacity.These functions include:

• keeping a register of Lasting Powers of Attorney and Enduring Powersof Attorney

• monitoring attorneys

• receiving reports from attorneys and deputies

• keeping a register of orders appointing deputies

• supervising deputies appointed by the Court

• directing Court of Protection visitors

• providing reports to the Court

• dealing with enquiries and complaints about the way deputies or attorneysuse their powers

• working closely with other agencies to prevent abuse.


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Isabel says:

“I think the new Public Guardian opportunity for complaints is a good one.But I fear it will remain hidden from the people who need to know about itas have many of the complaints systems in the past. And I think that in orderto make that part of the Act meaningful, a new think, a rethink will have totake place as to how we inform people at the grass roots, as to how they canaccess those processes which they find intimidating.”

Marcus, speaking about the role of the Public Guardian, sees it as:

“An excellent idea for service users and carers to be offered the opportunityto make complaints; however, this information needs to be made availableto users and their carers before admission, and help with understanding theprocess should be given.”

10.6 Court of Protection visitors

These are individuals appointed by the Lord Chancellor who provideindependent advice to the Court and the Public Guardian. They will have arole in the investigation of allegations of abuse of a person who lacks capacity.Their visits will include checks on the general well-being of a person who lackscapacity. They will also help and support attorneys and deputies.

Further information and guidance on their role and how to contact them willbe provided by the Office of the Public Guardian as it becomes moreestablished. These details are likely to be included in local adult protectionpolicies and procedures.


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http://www.guardianship.gov.uk/

BOX 26

Example

Mrs Williams made an LPA some time ago, appointing her nephew,Glyn, as her attorney with a general power to make personal welfareand financial decisions on her behalf. The power has now beenregistered on the basis that Mrs Williams no longer has the capacity tomake many of these decisions herself. However, her niece Anwen isconcerned that Glyn is not acting in Mrs Williams’ best interests. Inparticular, Anwen suspects that Glyn is using much of Mrs Williams’income to pay off his debts. She addresses these concerns to the PublicGuardian, who then directs a Court of Protection visitor to visit MrsWilliams and Glyn. The visitor’s report provides an assessment of thefacts and recommends that the matter be referred to the Court toconsider whether the attorneyship should continue. On receipt of thereport, the Court makes an order revoking the LPA.


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10.7 Raising concerns and complaints

The Court of Protection only deals with complaints when all other avenueshave been tried. So if a care worker, for example, wants to complain that shehas been asked to do something that seems to be against the Act, she cancontact the Office of the Public Guardian, she can use whistle-blowingprocedures or contact the local adult protection service (via the local authority)or the Commission for Social Care Inspection or the Care StandardsInspectorate in Wales. Other sources of help include telephone advice fromthe Action on Elder Abuse helpline or Witness: www.popan.org.uk/


• been alerted to the new criminal offences of ill-treatment or wilful neglect

• been reminded of the need to refer to local adult protection procedures

• learnt about the work of court-appointed deputies and noted the roles ofthe Office of the Public Guardian and of Court of Protection visitors.

http://www.popan.org.uk

http://www.elderabuse.org.uk/

http://www.csci.org.uk/

http://www.csiw.wales.gov.uk/index.asp

http://www.csiw.wales.gov.uk/index.asp

11 Sharing informationPeople making decisions on behalf of people who lack capacity will often needto share personal information about the person lacking capacity. Thisinformation is required in order to ensure that decision makers are acting inthe best interests of the person lacking capacity.

When releasing information, the following must be considered:

• Is the person asking for the information acting as an agent on behalf of theperson who lacks capacity?

• Is disclosure in the best interests of the person who lacks capacity?

• What kind of information is being requested?

BOX 27

Example

Mr Shah is an older man who has dementia. Mr Shah’s son isresponsible for his care and welfare under a Lasting Power of Attorney(LPA). Mr Shah has lived in a sheltered housing scheme for a number ofyears and until recently has coped well, but his son has now becomeconcerned about whether sheltered housing is still an appropriateplacement, given an apparent recent deterioration in his father’scondition. He contacts the scheme’s manager and asks for specificinformation from his father’s file in respect of the support provided sothat he may make an informed decision in the best interests of hisfather. However, the scheme manager refuses, saying that he isprevented from disclosing personal information in respect of Mr Shahbecause of the Data Protection Act.

Exercise: What would you have done in these circumstances? Where might youget advice if you were not sure?

Discussion: Mr Shah’s son is a welfare attorney. Under the LPA he is, legally, hisfather’s agent. The LPA gives him authority to look after his father’swelfare. He needs to access specific personal data in order to ensurethat proper care is provided to his father. With the power under theLPA, the Data Protection Act 1998 requires the scheme manager toallow Mr Shah’s son access to personal data relating to his concernsabout whether his father’s accommodation is now suitable to his needs.


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Attorneys with an LPA are entitled to any information as if they were theperson lacking capacity as long as they are acting within the scope of theirauthority. This also applies to independent mental capacity advocates (IMCAs)(see Part 7 of these materials).


• identified the questions to ask when sharing information

• noted that attorneys and IMCAs are entitled to information.


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12 Research (Mental Capacity Act, Sections 30–34; Code of Practice, Chapter 11)

There are clear rules about involving people in health and social care researchstudies when they are not able to consent to taking part. A family member orcarer (the consultee) should be consulted about any proposed study. Peoplewho can be consultees include family members, carers, attorneys anddeputies, as long as they are not paid to look after the person in question andtheir interest in the welfare of the person is not a professional one. If they saythat the person who lacks capacity would not have wanted to take part, or tocontinue to take part, then this means that the research must not go ahead.

If there is no such person who can be consulted, the researcher must findsomeone who is not connected with the research who can fulfil this roleinstead. Guidance will be available to researchers about how to go about this.Again, if the consultee says that the person would not have wanted to takepart or continue to take part, the research must not go ahead.

The research has to be approved by the relevant research ethics committee.A researcher must stop the research if at any time they think that one ofthe MCA s31 requirements is not met (i.e. the research must relate to animpairing condition, have potential to benefit the person lacking capacityor be intended to provide knowledge about the same or a similar condition).This means that the researcher needs to understand the basis on which theresearch approval is given and ensure not only that the research is approvedbut that these requirements continue to be met throughout the period of theresearch. It is good practice for staff to ask to see evidence that the researchhas received approval.

If the person who lacks capacity appears to be unhappy with any of theactivities involved in the research, then the research must stop.

NB: There are separate rules for clinical trials.

BOX 28

Example

A local university lecturer is doing a study of continence services andwants to look at the care plans in the files of each resident in a carehome for older people, all of whom have very severe dementia. Shedoes not want to talk to residents. She has received approval for thisstudy from the relevant research ethics committee.

Exercise:You are the manager of the home. What do you do?


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http://www.mrc.ac.uk/PolicyGuidance/EthicsAndGovernance/ClinicalResearchGovernance/PolicyonUKClinicalTrialsRegulations/MRC002541

BOX 28 (continued)

Discussion:In this case, the research is not intrusive but the lecturer will have tofollow the consent procedures that she has committed herself to. Youdo not have to let her see any files, but if she has gained thepermission of relatives by seeking their permission through anotherroute (such as writing to them and asking you to forward her letters),then their permission will be sufficient. Asking to see the letters givingpermission from the research ethics committee, and the relatives, andkeeping a copy of them would be advisable.


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If the research were going to be intrusive, for example if there were going tobe DNA sampling for another study, then you would need to ensure that thisprocedure was undertaken safely and that anyone who appeared to objectwould be removed from the study. Again, you would want to check that therelevant research ethics committee approval had been granted.


• established that research can go ahead if it has approval from a relevantresearch ethics committee

• noted that if the individual appears unhappy with any aspects of theresearch, it must stop

• confirmed that if a consultee says the research must not go ahead becausethe person would have objected, then the research cannot proceed.

13 Using the Mental Capacity Actto improve practice The service users and carers involved in the development of these trainingmaterials were generally very positive about the Mental Capacity Act 2005(MCA). However, they wanted the Act to be fully implemented and werekeen that checks and balances are sufficiently strong to protect individuals.

Key aims of the MCA are to co-ordinate and simplify a complex area of law.Interviews with service users and carers suggest that the Act could help staffimprove their practice.

Service users and carers hoped that the Act would encourage staff toacknowledge their residents’ dignity and rights to make choices. Theyemphasised that all service users want to be treated with warmth and respect.

Marcus, father of two adult children with mental health problems, says:

“Professionals should not ignore the reality of what is happening to people.It’s not about a quick fix; it’s about being patient and sympathetic. It’s abouta relationship too. Never mind if you are at the most vulnerable point of yourlife like having an illness, it’s even worse if you’re not treated with dignityand respect and empathy.”

Karen, who has severe physical disabilities, described the qualities staff needto work with the MCA:

“They’d have to be very patient, be willing to listen, be willing to exploreways to communicate; particularly at that stage when they’re trying to makedecisions, they want to be sure they’re making decisions based on what theperson lacking capacity would really want, not what the professional thinksmight be easier for a friend, social services or whatever.”

The introduction of the MCA provides an ideal opportunity for staff to lookagain at their practice and find new ways of listening to residents andenabling them to make choices and decisions.

In conclusion, you have:

• learnt about the key elements of the MCA

• reflected on the implications for your own practice

• listened to the hopes and views of users and carers about the wayin which the MCA will improve practice.


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GlossaryAdvance decision – allows an adult with capacity to set out a refusal ofspecified medical treatment in advance of the time when they might lack thecapacity to refuse it at the time it is proposed. If life-sustaining treatment isbeing refused, the advance decision has to be in writing, signed and witnessedand include a statement saying that it applies even if life is at risk.

Attorney – the person you choose to manage your assets or make decisionsunder a Lasting Power of Attorney or Enduring Power of Attorney.

Best interests – the duty of decision makers to have regard to a wide range offactors when reaching a decision or carrying out an act on behalf of a personwho lacks capacity.

Capacity – the ability to make a decision.

Contemporaneous – at the same time – any person with capacity can refusetreatment at the time it is offered. An advance decision means you have toaccept what the person wanted some time ago is what they want now.

Court of Protection – where there is a dispute or challenge to a decisionunder the Mental Capacity Act, this Court decides on such matters as whethera person has capacity in relation to a particular decision, whether a proposedact would be lawful and the meaning or effect of a Lasting Power of Attorneyor Enduring Power of Attorney.

Court-appointed deputy – an individual appointed by the Court of Protectionto make best interests decisions on behalf of an adult who lacks capacity tomake particular decisions.

Decision maker – someone working in health or social care or a familymember or unpaid carer who decides whether to provide care or treatmentfor someone who cannot consent; or an attorney or deputy who has thelegal authority to make best interests decisions on behalf of someone wholacks the capacity to do so.

Donor – the person who is making a Lasting Power of Attorney to appoint aperson to manage their assets or to make personal welfare decisions.

Enduring Power of Attorney (EPA) – a power of attorney to deal withproperty and financial affairs established by previous legislation. No new EPAscan be made after the Mental Capacity Act is implemented, but existing EPAscontinue to be valid.


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Independent mental capacity advocate (IMCA) – has to be instructed when aperson who lacks capacity to make specific decisions has no one else who canspeak for them. They do not make decisions for people who lack capacity, butsupport and represent them and ensure that major decisions for people wholack capacity are made appropriately and in accordance with the MentalCapacity Act.

Lasting Power of Attorney (LPA) – a power under the Mental Capacity Actwhich allows an individual to appoint another person to act on their behalf inrelation to certain decisions regarding their financial, welfare and healthcarematters.

Public Guardian – this official body registers Lasting Powers of Attorney(LPAs) and court-appointed deputies, and investigates complaints about howan attorney under an LPA or a deputy is exercising their powers.


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Useful sources and referencesFurther information is available in the training sets that accompany thismaterial. Links to more information and reference to the Mental Capacity Act2005 (MCA) and Code of Practice are included in the text where relevant.The following list includes other articles or books that may be of interest.

Department for Constitutional Affairs Range of material including thestatutes and an easy read summary tothe MCA available on the website:www.dca.gov.uk/legal-policy/mental-capacity

Department of Health Website:www.dh.gov.uk/mentalcapacityact

Welsh Assembly Government Guidance issued for Wales availableon website:http://new.wales.gov.uk/topics/health/nhswales/healthservice/mental_health_services/mentalcapacityact/?lang=en

Ashton, G., Oates, L., Letts, P. and Terrell, M. (2006) Mental Capacity:The New Law, Bristol: Jordan Publishing Ltd.

Bartlett, P. (2005) Blackstone’s Guide to the Mental Capacity Act 2005,Oxford: Oxford University Press.

British Medical Association (2007) Withholding and Withdrawing Life-prolonging Medical Treatment: Guidance for decision making, third edition,Oxford: Blackwell Publishing.

British Medical Association and Law Society (2004) Assessment of MentalCapacity: Guidance for Doctors and Lawyers, second edition, London:BMJ Books.

British Psychological Society (2006) Assessment of Capacity in Adults: InterimGuidance for Psychologists, Leicester: British Psychological Society.

Department of Health (2000) No Secrets: guidance on development andimplementation of multi-agency policies and procedures to protect vulnerableadults, London: Department of Health.

Department of Health (2004) The Ten Essential Shared Capabilities:A Framework for the Whole of the Mental Health Workforce, London:Sainsbury Centre for Mental Health, NHSU and National Institute for MentalHealth England.


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http://www.dca.gov.uk/legal-policy/mental-capacity

http://www.dca.gov.uk/legal-policy/mental-capacity


http://new.wales.gov.uk/topics/health/nhswales/healthservice/mental_health_services/mentalcapacityact/?lang=en




Department of Health (2004) Advice on the Decision of the European Courtof Human Rights in the Case of HL v UK (The ‘Bournewood’ Case), London:Department of Health.

Department of Health (2006) Bournewood Briefing Sheet, London:Department of Health.

Griffith, R. (2006) ‘Making decisions for incapable adults 1: capacity and bestinterest’, British Journal of Community Nursing, Vol. 11, No. 3, 119–25.

Griffith, R. (2006) ‘Making decisions for incapable adults 2: advance decisionsrefusing care’, British Journal of Community Nursing, Vol. 11, No. 4, 162–6.

Griffith, R. (2006) ‘Making decisions for incapable adults 3: protection,guardians and advocates’, British Journal of Community Nursing, Vol. 11,No. 5, 214–21.

Hotopf, M. (2005) ‘The assessment of mental capacity’, Clinical Medicine,Vol. 5, No. 6, 580–4.

Jones, R.W. (2005) Mental Capacity Act 2005, London: Thompson, Sweetand Maxwell.

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