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Decision-Making and Mental Capacity

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Decision-Making and Mental Capacity 1 NATIONAL INSTITUTE FOR HEALTH AND CARE 2 EXCELLENCE 3 DRAFT GUIDELINE 4 5 Decision-making and mental capacity 6 7 [Issue date: month/year] 8 Draft for consultation, December 2017 Decision-making and mental capacity: consultation draft (December 2017) 1 of 433 9 Contents 10 Contents ..................................................................................................................... 2 11 Introduction ................................................................................................................ 3 12 1 Recommendations ................................................................................................ 6 13 1.1 Overarching principles ................................................................................... 6 14 1.2 Supported decision-making .............................Error! Bookmark not defined. 15 1.3 Advance care planning ....................................Error! Bookmark not defined. 16 1.4 Assessment of mental capacity .......................Error! Bookmark not defined. 17 1.5 Best interest decision-making .........................Error! Bookmark not defined. 18 Terms used in this guideline ................................................................................. 24 19 2 Research recommendations ............................................................................... 27 20 2.1 Training and support for practitioners ........................................................... 27 21 2.2 Equalities considerations ............................................................................. 28 22 2.3 Targeted interventions to support advance care planning ............................ 30 23 2.4 Targeted interventions to support and improve decision-making capacity for 24 treatment .............................................................................................................. 31 25 2.5 Advocacy and support for decision-making on the presumption of capacity 32 26 2.6 Using mental capacity assessment tools to assess capacity ....................... 34 27 2.7 Components of a mental capacity assessment ............................................ 35 28 2.8 Best interests decision-making processes ................................................... 36 29 3 Evidence review and recommendations ............................................................. 37 30 3.1 Planning in advance, including for people who experience fluctuating 31 capacity ................................................................................................................ 40 32 3.2 Planning in advance, including for people who experience fluctuating 33 capacity – additional search ................................................................................. 82 34 3.3 Supporting decision-making on the presumption of mental capacity .......... 147 35 3.4 Assessment of mental capacity .................................................................. 180 36 3.5 Best interests decision-making for those who have been assessed as lacking 37 the mental capacity to make a specific decision ................................................. 231 38 3.6 Evidence to recommendations ................................................................... 274 39 3.7 Evidence to recommendations ................................................................... 291 40 4 Implementation: getting started......................................................................... 399 41 5 References ....................................................................................................... 402 42 6 Related NICE guidance .................................................................................... 409 43 7 Contributors and declarations of interests ........................................................ 411 44 The Guideline Committee ................................................................................... 411 45 Co-opted members ............................................................................................. 412 46 NICE Collaborating Centre for Social Care technical team ................................. 412 47 NICE social care team ........................................................................................ 413 48 Declarations of interests ..................................................................................... 414 49 8 Glossary and abbreviations .............................................................................. 428 50 Glossary ............................................................................................................. 428 51 Abbreviations ...................................................................................................... 432 52 About this guideline ................................................................................................ 432 53 What does this guideline cover? ......................................................................... 432 54 Other information ................................................................................................ 432 55 Copyright ............................................................................................................ 432 56 Decision-making and mental capacity: consultation draft (December 2017) 2 of 433 57 Introduction 58 The Department of Health asked NICE to produce this guideline on Decision Making 59 and Mental Capacity for people using health and social services aged 16 and over 60 (see the scope). 61 What is the purpose of this guideline? 62 The guideline is intended to help health and social care practitioners to: 63 support people to make their own decisions as far as possible 64 assess people’s capacity to make specific health and social care decisions 65 make specific best interests decisions when people lack capacity, and maximise 66 the person’s involvement in those decisions. 67 This may include decisions about where and how people live, their support, care and 68 treatment, their security or safety and financial matters. 69 The guideline does not cover: 70 decision-making activities and support for children under the age of 16 71 Deprivation of Liberty Safeguards processes. 72 Why do we need this guideline? 73 The Care Quality Commission (CQC) estimates that around 2 million people in 74 England and Wales may lack the capacity to make certain decisions for themselves 75 at some point because of illness, injury or disability. Many of these people will be 76 supported to make those decisions, or if they are assessed as lacking capacity, have 77 best interests decisions made on their behalf, as part of their routine care and 78 support. The Mental Capacity Act 2005 was designed to empower and protect 79 individuals in these circumstances. However the Care Quality Commission identified 80 serious issues with the practical implementation of the Mental Capacity Act. This 81 subject was subsequently reported on by a House of Lords Select Committee in 82 2014, adding further momentum towards improvement and it is in this context that 83 the Department of Health commissioned this guideline. 84 Decision-making and mental capacity: consultation draft (December 2017) 3 of 433 85 What does it cover? 86 The guideline makes recommendations about practice in relation to people aged 16 87 years and over who - may lack mental capacity (now or in the future) and need 88 support from health or social care practitioners to make their own decisions; may 89 need to have their capacity to make specific decisions about aspects of their care 90 assessed; or may need a best interests decision to be made on their behalf if they 91 have been assessed as lacking capacity. 92 Who the guideline is for: 93 People using health and social care services who may (now or in the future) lack 94 mental capacity, and their families and carers. 95 Health practitioners working with people who may lack mental capacity. 96 Social care practitioners (including personal assistants) working with people who 97 may lack mental capacity. 98 Advocates, including Independent Mental Capacity Advocates, Care Act 99 advocates and Independent Mental Health Advocates. 100 The guideline is also relevant for: 101 Practitioners working in services (including housing, education, employment, 102 police and criminal justice) who may come into contact with people who lack 103 mental capacity. 104 Local authorities and clinical commissioning groups. 105 Social care and health providers. 106 Community and voluntary organisations representing or supporting people who 107 may lack mental capacity, and their families and carers. 108 Guardians (under the Mental Health Act), court appointed deputies and those who 109 hold power of attorney. 110 How has it been developed? 111 We used the methods and processes in Developing NICE guidelines: the manual 112 (2014). 113 Decision-making and mental capacity: consultation draft (December 2017) 4 of 433 114 What is the status of this guideline? 115 The guideline is not a comprehensive manual for frontline practice; rather, it focuses 116 on areas where practice needs to improve, and where there is a paucity of guidance 117 in existence. 118 How does it relate to statutory and non-statutory guidance? 119 Practitioners must comply with the statutory functions of the agencies they work for 120 under the Care Act 2014, the Mental Health Act 2007 and the Mental Capacity Act 121 2005, 122 In particular, under the Mental Capacity Act 2005, practice must be underpinned by 5 123 statutory principles:
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