Tower Hamlets Multi-Agency Mental Capacity Policy and Procedure
Note on timetable for implementation
Not all parts of the Act come into force at the same time. On 1 April 2007; The new Independent Mental Capacity Advocate (IMCA) service will become operational in England only. The new criminal offence of ill-treatment or wilful neglect will come into force in England and Wales. Sections 1-4 of the Act (the principles, assessing capacity and determining best interests) which are essential to how IMCAs will operate also comes into force but only in situations where an IMCA could be involved, and for the purpose of the criminal offence. Sections 1–4 of the Act will not apply in any other situations until October 2007.
All other parts of the Act will come into force on 1 October 2007.
Therefore between April and September 2007 this policy will only apply in the situations listed in Section 4.8 where an IMCA may be necessary. Section 4.7 on ill-treatment and neglect will also apply, although in practice this will not make a major difference to the current Adult Protection Procedure.
Edition 2, May 2007
Author: Mike Webb, Policy Officer, Adults, Health and Well-being Directorate, London Borough of Tower Hamlets
Revision History: Edition 1 May 2007 Edition 2 May 2007 – procedure for engaging IMCA changed
Signed off by: John Goldup, Corporate Director, Adults Health and Wellbeing, LBTH 08/05/07 Review date: September 2007
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 2 of 47 Table of Contents 1. Introduction...... 4 1.1. Purpose of this policy...... 4 1.2. Who is covered by this policy?...... 4 1.3. Definition of capacity...... 5 1.4. Guiding principles...... 6 1.5. Summary of the Act...... 6 2. All service users and mental capacity...... 7 2.1. New service users...... 7 2.2. Recording LPAs, Deputyships, Advance Decisions etc...... 8 2.3. Supporting service users who appear to lack capacity to make decisions...... 8 3. Assessing capacity...... 9 3.1. The two-stage test of capacity...... 9 3.2. Who can make an assessment?...... 10 3.3. Establishing a lack of capacity...... 10 3.4. Disputes about capacity...... 11 3.5. Recording the results of an assessment...... 12 4. Working with people who lack capacity...... 12 4.1. Overview...... 12 4.2. Types of decision you can make in a person’s best interests...... 12 4.2.1. Paying for goods and services...... 12 4.2.2. Acts in connection with care and treatment...... 13 4.2.3. Excluded decisions...... 14 4.3. The Best Interests Checklist...... 14 4.4. Recording decisions...... 15 4.5. Interface with the Mental Health Act 1983...... 15 4.5.1. Detention under the Mental Health Act 1983...... 15 4.5.2. Guardianship and Aftercare under supervision...... 16 4.5.3. Implications of the Mental Capacity Act for patients subject to the Mental Health Act 1983...... 16 4.5.4. Advance Decisions under the Mental Health Act 1983...... 17 4.5.5. The role and powers of Attorneys and Deputies...... 17 4.6. Restraint and restriction of liberty...... 17 4.7. Ill-treatment and neglect...... 18 4.8. Using the IMCA service...... 19 4.8.1. When to instruct an IMCA...... 19 4.8.2. Duties and powers of an IMCA...... 20 4.9. Court of Protection (from 1 October 2007)...... 20 4.10. Lasting Power of Attorney (from 1 October 2007)...... 20 4.11. Resolving disagreements about best interests...... 21 4.12. Information Disclosure...... 22 5. Research involving people who lack capacity...... 22 Appendix 1: Flowchart...... 24 Appendix 2: Mental Capacity Assessment Form...... 25 Appendix 3: Determining best interests – the checklist...... 26 Appendix 4: IMCA referral form and guidance...... 40 Appendix 5: Further information...... 46 Reading...... 46 Local contacts...... 46
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 3 of 47 Appendix 6: Glossary...... 47
1. Introduction
1.1. Purpose of this policy
The Mental Capacity Act 2005 provides a legal framework to empower and protect vulnerable people aged over 16 who lack capacity to make their own decisions. It makes it clear who can take decisions, in which situations and how they should go about this. The Act comes into force during 2007 and is supported by a legally binding Code of Practice.
The purpose of this policy and procedure is to translate the Act and its Code of Practice into practical guidance for health and social care staff working in Tower Hamlets. It consists of four main sections; The impact of mental capacity issues on everyday dealings with all service users1 (Section 2) Assessing whether a service user is able to make a particular decision (Section 3) Working with people who lack capacity (Section 4) Research (Section 5)
For detailed guidance on specific situations, you should also refer to the Code of Practice. Some sections of this policy have been taken from the DCA publication Making decisions: A guide for people who work in health and social care.
1.2. Who is covered by this policy?
The Code of Practice has legal force and health and social care staff have a duty to have regard to it, including; Doctors Nurses Dentists Psychologists Occupational, physio- and speech & language therapists Social workers, care managers and assessment and reviewing officers Residential and care home managers Care staff (including home care workers) Support workers (including people who work in supported housing) Other health staff not included above
It applies in everyday situations as well as major decisions such as whether to enter residential care or provide treatment. However in most circumstances a formal assessment of capacity is not necessary for staff to carry out acts
1 The term “service user” is used throughout this policy and includes patients in NHS organisations as well as social care service users.
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 4 of 47 connection to care and treatment. Section 3.2 below outlines who should assess capacity and under what circumstances.
Many staff already take into account the service user’s ability to make decisions when working with them. In this respect, the Mental Capacity Act merely formalises aspects of existing good practice.
The Mental Capacity Act also applies to unpaid carers and relatives. So although unpaid carers and relatives do not have a legal duty to have regard to the Code of Practice, they are still expected to follow its guidance as it will help them to understand the Act. The government has produced a booklet on the Mental Capacity Act for unpaid carers – a link can be found in Appendix 3.
1.3. Definition of capacity
The Act applies only to people aged 16 and over. It provides the following definition;
“A person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”2.
This could be due to conditions such as a stroke, brain injury, mental health problem, dementia, learning disability, substance misuse or serious illness.
“Capacity” in this sense is not a fixed, unchangeable quality. A person may have the capacity to make certain decisions but not others. Equally, they may be able to make decisions at certain time but not others. To make a decision, the Act states that the person must be able to: understand the information relevant to the decision retain that information use or weigh that information as part of the process of making the decision communicate the decision (whether by talking, using sign language or any other means)3
Therefore the definition of capacity is similar to Gillick competence in English Common Law which is used to determine whether a person is able to give consent to medical treatment4. However the Act does not use the term competence, probably because it could be interpreted as “this person is competent” rather than “this person is competent to make this decision”. See Section 3 below for more information on assessing capacity.
Another implication of this definition of capacity is that a person can still have capacity even if they are subject to the Mental Health Act 1983 if the decision is unrelated to mental disorder – see Section 4.5 for details.
2 Mental Capacity Act 2005 s2 3 Ibid. s3 4 Common Law currently refers simply to consent although good practice is to obtain informed consent.
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 5 of 47 For simplicity’s sake the term “person who lacks capacity” is used throughout this policy in place of “person who lacks capacity to make a particular decision at a particular time”.
1.4. Guiding principles
The Act and the Code, and consequently this policy, are guided by the following five principles;
1. A person must be assumed to have capacity unless it is established that he lacks capacity. 2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. 3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision. 4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. 5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action5.
1.5. Summary of the Act
There must always be the presumption that people you provide care or treatment for have capacity to make decisions for themselves. There is a single clear test for assessing whether a person lacks capacity to make a decision (see Section 3 below for details). It establishes a statutory checklist to help determine what is in the ‘best interests’ of a person lacking capacity (Section 4.3). It provides several ways that people can influence what happens to them if they are unable to make particular decisions in the future, including advance decisions to refuse medical treatment, written statements of wishes and feelings, and creating a Lasting Power of Attorney (LPA) (Section 2.1). It clarifies the actions you can take if someone does lack capacity, and the legal safeguards that will govern this (Section 4.2). It establishes an obligation for you to consult people who are involved in caring for the person who lacks capacity and anyone interested in their welfare (for example family members, friends, partners and unpaid carers) about decisions affecting that person. If there is an attorney under an LPA, a deputy appointed by the Court of Protection or named person, you will also have an obligation to consult them (Section 4). A new non-instructed advocacy service called the Independent Mental Capacity Advocate (IMCA) service is established. An IMCA is only be involved if there are no family or friends who can be consulted (Section 4.9).
5 Mental Capacity Act 2005 s1
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 6 of 47 There is a new criminal offence of ill-treatment and neglect. Individuals may be guilty of this offence if they ill-treat or wilfully neglect the person they have care for or to whom the LPA, Enduring Power of Attorney (EPA) or the Deputy appointment relates. Police officers and social workers must be aware of this offence when investigating allegations (Section 4.7). A new Court of Protection is established along with a new public official (the Public Guardian), supported by the Office of the Public Guardian (OPG) (Section 4.9). There are new safeguards for undertaking research involving people who lack capacity (Section 5).
2. All service users and mental capacity
2.1. New service users
Health and social care staff must be aware of any mental capacity issues when they first come into contact with a service user over 16. The most obvious issue is whether they have the capacity to make specific decisions – this is addressed in Chapter 3. Whether they have capacity or not, you must also establish: Has the service user registered a Lasting Power of Attorney (LPA) to make decisions about their health and personal welfare6? You may need to check with the Office of the Public Guardian, which holds a register of all LPAs. If an Attorney has been appointed, they will need to be involved in decisions about the service user’s care and treatment if they lack capacity. Has the Court of Protection appointed a Deputy to make decisions on behalf of the service user? Prior to the Act’s implementation, Deputies were known as receivers and could be appointed for financial decisions only. The appointment of Deputies to make health and personal welfare decisions is only anticipated in exceptional circumstances, for example, where there is a history of family disputes or adult protection concerns. Furthermore, an IMCA can fulfil this role in some cases. You will only need to check whether a Deputy has been appointed in cases where the person already lacks capacity. Has the service user made any Advance Decisions to refuse a certain type of treatment? An Advance Decision is also known as an Advance Directive or a Living Will and it can only be to refuse treatment. It need not necessarily be in writing unless it concerns life-sustaining treatment. If the person currently lacks capacity, any Advance Decisions will most probably have been lodged with their GP, who must record oral Advance Decisions in their notes and transmit them on a need-to-know basis. Unpaid carers and relatives are another obvious source. Does the service user have any wishes, feelings or beliefs that may influence their care or treatment? These could cover anything from requests for certain types of treatment to a preference for having a shower rather than a bath. A wish for a certain type of treatment does not have the
6 LPAs replace Enduring Powers of Attorneys (which cover financial affairs and property only) from October 2007. Existing EPAs will remain valid after this time – see Section 4.10 for details.
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 7 of 47 same force as an Advance Decision to refuse treatment, although it should be taken into account when making a best interests decision. Again, GPs and carers are the most likely source of information for people who already lack capacity.
Section 4 covers the practicalities of working with these instruments.
You might wish to direct the service user to information about how they can influence their future treatment and care should they lose capacity, particularly if they are suffering from a degenerative condition. Information sources can be found in Appendix 5. However you should remain impartial in these situations and not appear to offer advice or guidance.
2.2. Recording LPAs, Deputyships, Advance Decisions etc
Recording accurately is essential so that all health and social care staff working with a particular service user have access to any electronic or paper information which might influence their care and treatment. Records will also be made accessible to IMCAs.
Adult Services staff should record any information about LPAs, Deputies, Advance Decisions and wishes etc in the new Consent module when they enter service user data on SWIFT. Any supporting documents such as written statements and correspondence with the Office of the Public Guardian should be scanned and stored in TRIM. Health staff should record this information in the patient’s record and maintain it in accordance with their Trust’s Recordkeeping Policy. Health and social care staff assessing older people using e-SAP (Electronic Single Assessment Process) must record this information in the Basic Personal Information section.
If a service user lodges a new Advance Decision with another agency, it should also be communicated to their GP. Section 4.12 provides more information on information sharing between health and social care.
2.3. Supporting service users who appear to lack capacity to make decisions
As the first principle of the Act states, you should start from the assumption that a person has the capacity to make the decision in question. There are several ways to support people who appear to lack capacity to make decisions: Ensure the person has all the relevant information needed to make the decision; what is involved in the proposed treatment or care, what will be the consequences of accepting or refusing etc. The information should be presented in a way appropriate to the person concerned. This might just be a case of explaining the situation in the simplest way possible or asking a carer, relative or other trusted person to explain. In other cases, pictures, videos, sign language or interpreting may be necessary. If the decision does not need to taken immediately, choose a good time to discuss the decision with the person. People who lack capacity for a
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 8 of 47 particular decision at a certain time may be better able to make the decision at another time. In social care, the person’s care plan may have a record of fluctuating capacity. The location of the decision is also important – choose a place where the person will be relaxed, which is relevant to the decision (e.g. a visit to the hospital where proposed treatment will take place) and/or quiet where interruptions are unlikely. Consideration should be given to using an advocate to help the person make more important decisions (but not an IMCA, who are for people who lack capacity only).
NHS staff should follow their trust’s Consent Policy (standard across the whole NHS) when assisting service users to make decisions.
Once an informed decision has been reached, the support needed to make it should be recorded as evidence should it be questioned and to assist in future decision-making.
As the guiding principles state, an eccentric or unwise decision in itself does not signify a lack of capacity, as long as it is an informed decision. If, after taking steps to support decision-making, the person still seems to be unable to make a decision as defined in Section 1.3 above, then you will need to assess their capacity (see Section 3).
3. Assessing capacity
3.1. The two-stage test of capacity
In order to decide whether an individual has capacity to make a particular decision, a two stage test must be applied:
Is there an impairment of or disturbance in the functioning of the person’s mind or brain? If so; Is the impairment or disturbance sufficient that the person lacks capacity to make that particular decision?
It must be remembered that the judgment that the person has an impairment of or disturbance in the functioning of mind or brain cannot be made by just looking at the person or making unjustified assumptions based on the person’s condition. Assessment of capacity should only be made after all practicable steps to help the person to make the decision have been taken without success (see Section 2.3 above).
On occasions, the person may refuse to undergo an assessment of capacity. It may be possible to persuade them that it is in their interests to be assessed but if they still refuse they cannot be forced to do so unless required by a court or the Mental Health Act 1983 applies (see Section 4.5 below). If they cannot consent to or refuse the assessment itself, it should be possible for the
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 9 of 47 assessment to proceed, provided they cooperate and it is deemed to be in their best interests (see Section 4.3).
The Act reminds us that the assessment of capacity is of fundamental importance to everyone. By making an assessment that an individual lacks capacity to make a decision, the person’s right to take that decision may be denied. Alternatively, a different assessment could permit a person lacking capacity to do something, or carry on doing something, whereby serious prejudice could result to that person. It is therefore important that anyone called upon to assess another person’s capacity must understand what they are being asked to do and be prepared to justify their findings.
3.2. Who can make an assessment?
The person who is required to assess an individual’s capacity will be the person who wishes to take some action in connection with the person’s care or treatment or who is contemplating making a decision on the person’s behalf. It will therefore depend on the particular circumstances and the decision to be made. For most day-to-day actions or decisions, the carer most directly involved with the person at the time assesses their capacity to make the decision in question. This includes all staff listed in Section 1.2 above. In most circumstances, it is sufficient for the person assessing capacity to hold a reasonable belief. Where consent to medical treatment or examination is necessary, the required health professional proposing the treatment must decide whether the patient has capacity to consent and should record the assessment process and findings in the person’s healthcare record. Health professionals may be asked by a solicitor to give an opinion on whether their client has the required capacity to satisfy the relevant legal test for transactions such as making a will or a power of attorney. For serious and/or life-changing decisions a professional, such as a psychiatrist or psychologist, may be asked for an opinion to assist with the assessment.
3.3. Establishing a lack of capacity
It is not enough to decide that just because a person wants to make an “unwise decision”, they lack capacity. The Act reminds us that people have the right to make decisions that are based on their own judgments rather than the judgements of others.
A person is unable to make a decision for himself if he is unable to: understand the information relevant to the decision retain that information use that information as part of the process of making the decision, or communicate the decision (whether by talking, using sign language or any other means)
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 10 of 47 To be able to understand the information relevant to a decision the person must be able to understand the consequences of deciding one way or another or not deciding at all. Every effort must be made to help a person understand the consequences of decisions that are being put to them.
The person must be able to retain the information for long enough to use it in order to make a choice or an effective decision.
The person must be able to weigh up the information to arrive at a decision understanding the benefits, risks and alternatives, rather than acting completely impulsively.
The final criterion that would indicate an inability to make a decision is being unable to communicate the decision by any possible means. This is unlikely to be the sole circumstance for saying the person lacks capacity and every effort must be made to help the person communicate.
For most day-to-day decisions, the person making the assessment should be able so show that they had reasonable belief that the person lacked capacity through their caring role although they should understand and give due consideration of the Act’s principles. All staff need to be aware of their responsibility under the Act.
With more complex decision-making it may be helpful to use the Assessment of Capacity form to demonstrate that the process has been followed (see Appendix 2) .
3.4. Disputes about capacity
There are likely to be occasions when someone may wish to challenge the results of an assessment of capacity. For example, certain individuals may feel they have been wrongly assessed as lacking capacity to make a decision they believe they are capable of making, or alternatively someone else may wish to challenge a finding of a lack of capacity on their behalf.
The first step in challenging a finding of lack of capacity is to raise the matter with the person who carried out the assessment. If the individual who allegedly lacks capacity is making the challenge, it may be helpful to have support from family, friends or an independent advocate. The assessor should be asked to give reasons why they believe the individual lacks capacity to make the decision in question and to provide objective evidence to justify that belief. They will need to show they have taken into account the principles of the Mental Capacity Act.
In some cases, it may be possible to seek a second opinion from an independent professional or other expert in assessing capacity. Ultimately, an application can be made to the Court of Protection for a ruling on whether or not a person has capacity in relation to the particular matter or decision in question.
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 11 of 47 3.5. Recording the results of an assessment
When an assessment of capacity has been made in relation to a major decision, a formal record must be kept in the event the assessment is challenged. This should be done using the completed Assessment of Capacity form and/or, in the NHS, Consent Form 47. It must be recorded in the person’s clinical notes if it relates to a medical decision or on the Care Plan and/or in SWIFT, Person-Centred Planning, SAP or CPA if it relates to social care provision.
While a formal record of an assessment may not always be practical for urgent or day-to-day decisions, the person making the assessment in these situations must be able to show that they had reasonable belief that the person lacked capacity and that they gave due consideration to the Act’s principles.
4. Working with people who lack capacity
4.1. Overview
If a person has been assessed as lacking capacity and has no Attorney or Court-Appointed Deputy to make decisions for them, the Act provides health and social care professionals (and unpaid carers) with legal protection from liability when carrying out acts on behalf of the person. However you must first ensure they are in the best interests of the person. The Code of Practice includes a statutory Best Interests Checklist which lists the factors that you should consider. Decisions should also be the least restrictive of the person’s basic rights and freedoms – see Section 4.6 on restraint and the restriction of liberty.
4.2. Types of decision you can make in a person’s best interests
4.2.1. Paying for goods and services
The Act states that carers (paid and unpaid) can pay for “necessary” goods and services for a person who lacks capacity only if they are acting in the person’s best interests. “Necessary” goods and services are defined in the Act as those which are required for the person to enjoy a similar standard of living and way of life to those they had before lacking capacity. Payment can be made in one of three ways; The carer may promise that the person who lacks capacity will pay (if the provider agrees) The carer uses the person’s available cash to pay The carer pays for it and is reimbursed, either from the person’s cash as above or from their bank account. However, from a legal perspective, the carer can only gain access to bank accounts or other assets if they have an LPA, a deputyship or a single order from the Court of Protection.
7 Form for adults who are unable to consent to investigation or treatment – see Appendix 4 for web link.
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 12 of 47 From 1 October 2007, the Court will not only approve applications for the purposes of financial management but this will be extended to best interests decisions relating to social care and welfare.
4.2.2. Acts in connection with care and treatment
For social care8, nursing and other health staff acts include: help with washing, dressing or attending to personal and oral hygiene help with eating and drinking helping people to walk and assistance with transport help with arranging household services such as power supplies, housework, repairs or maintenance acts performed in relation to domiciliary care or other services acts performed in relation to other community care services (such as day care, residential accommodation or nursing care) acts associated with a change of residence acts associated with the person’s safety acts associated with adult protection procedures
Decisions about a person’s care or treatment are often made by a multi- disciplinary team by drawing up a care plan for the person. The care plan should always include an assessment of the person’s capacity to consent to the actions it covers, and confirm that those actions are agreed to be in the person’s best interests. Social care and health staff may then be able to assume that any actions they take under the care plan are in the person’s best interests, and therefore receive protection from liability. But a person’s capacity and best interests must still be reviewed regularly.
People who work in health care can diagnose and treat people who lack capacity without their consent. This covers acts such as: diagnostic examinations and tests assessments medical and dental treatment surgical procedures admission to hospital for assessment or treatment nursing care emergency procedures (such as cardiopulmonary resuscitation)
A doctor can delegate responsibility for giving the treatment to other people in the clinical team who have the appropriate skills or expertise.
4.2.3. Excluded decisions
Sections 27-29 of the Act state that the following cannot be done on behalf of a person lacking capacity under any circumstances:
8 Including Social workers, care managers, assessment and reviewing officers, residential and care home managers, care staff (including home care workers) and support workers (including people who work in supported housing).
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 13 of 47 consent to marriage or a civil partnership, consent to have sexual relations, consent to a decree of divorce being granted on the basis of two years' separation, consent to a dissolution order being made in relation to a civil partnership on the basis of two years' separation, consent to a child's being placed for adoption by an adoption agency, consent to the making of an adoption order, discharge parental responsibilities in matters not relating to a child's property, give a consent under the Human Fertilisation and Embryology Act 1990 (c. 37) give a patient or consent to a patient’s being given medical treatment for mental disorder if their treatment is regulated by Section 4 of the Mental Health Act 1983 (see Section 4.6 for details) vote at an election for any public office or at a referendum
4.3. The Best Interests Checklist
The Code of Practice sets out a statutory checklist of factors which must be considered when acting in the best interests of a person who lacks capacity. The person making the decision is normally the professional or the carer (paid or unpaid) most directly involved with the person at the time. If an Attorney or Deputy have been appointed, they are the decision-maker.
Inevitably the Checklist cannot cover every eventuality, so other factors should be taken into account depending on the individual circumstances. In summary, factors which will be relevant in all situations are;
Equal consideration and non-discrimination; Considering all relevant circumstances; Regaining capacity; Permitting and encouraging participation; Special considerations for life-sustaining treatment; The person’s wishes and feelings, beliefs and values; The views of other people.
The Best Interests Checklist has been reproduced in full in Appendix 3. All of the above factors should be weighed up to determine what decision or course of action is in the person’s best interests. You can only be expected to have reasonable grounds for believing that you acted in the person’s best interest – using the Checklist will provide evidence that you have done this and, as a result, that you have complied with the law.
4.4. Recording decisions
As for LPAs, Advance Decisions etc and assessments of capacity, it is essential that major Best Interests decisions are recorded and accessible to relevant professionals. The documentation might be required for a Court
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 14 of 47 decision or in event of a dispute. You should record the decision made, who made the decision, who was consulted and the process used to arrive at the decision (using the Checklist as a guide). NHS staff should use Consent Form 4. The record should be kept on the person’s file.
Day-to-day or urgent decisions do not require a formal record but decision- makers must always bear in mind that they might be asked to justify that they had a “reasonable belief” that they were acting in the best interests of the person without capacity and had considered the factors in the Checklist.
4.5. Interface with the Mental Health Act 1983
There will be some people who are subject to the Mental Health Act 1983 and who also lack capacity. They will therefore be affected both by the Mental Health Act 1983 and Mental Capacity Act.
The Mental Health Act 1983 provides a framework in which care and treatment can be given to people who suffer from a serious mental disorder without consent. It defines when a person can be detained in hospital, when they can be treated and defines when a person can be made subject to guardianship or after-care under supervision for that mental disorder.
4.5.1. Detention under the Mental Health Act 1983
In general an act of restraint will only attract protection from liability under Section 5 of the Mental Capacity Act where it is necessary to protect the person lacking capacity from harm and restraint is proportionate to the likelihood and seriousness of the harm. Actions that go beyond restraint and deprive a person of their liberty need some other legal basis. Therefore if a person needs to be detained because of their mental disorder, consideration should be given to using the Mental Health Act 1983.
Possible circumstances which might indicate the need for assessment for admission to hospital under the Mental Health Act 1983 include: The person needs treatment which cannot lawfully be provided under the Mental Capacity Act. It is not possible to provide appropriate care or treatment in a way which does not amount to deprivation of the person’s liberty. The person is resisting treatment and restraint is required frequently or for a prolonged period, in order to ensure that they receive treatment. There is a risk that the person might otherwise not receive treatment and either the person or others might potentially suffer as a result.
4.5.2. Guardianship and Aftercare under supervision
A person subject to Guardianship or Aftercare under supervision under the Mental Health Act 1983 can be required to: reside at a specific place (although not to be detained there) attend medical treatment, education or training be seen by specified professionals such as doctors
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 15 of 47 Guardianship and Aftercare under supervision should not normally be necessary in order to care for or treat a person who lacks capacity since the Mental Capacity Act allows you to act in their best interests. Nevertheless there are cases where the additional safeguards provided by Guardianship or Aftercare under supervision are appropriate, particularly where the protection of others is a concern.
An example of when Guardianship might be considered is where a person who lacks capacity resides in a care home in conditions which severely restrict their freedom of movement. Although Guardianship under the Mental Health Act 1983 does not provide authority for depriving the person of their liberty, an application for Guardianship may: Provide a degree of protection and additional safeguards for the person through the formal requirements for review under the Mental Health Act 1983. Provide explicit authority for the person to be returned to the Care Home if they went absent without leave of the Guardians from the place they are required to reside.
4.5.3. Implications of the Mental Capacity Act for patients subject to the Mental Health Act 1983
People who lack capacity who are subject to the provisions of the Mental Health Act 1983 will still be protected by the Mental Capacity Act in relation to other types of decisions or actions affecting them.
Therefore, where a decision unrelated to treatment for mental disorder needs to be made (including decisions about physical healthcare, welfare or financial matters), an assessment of capacity should be carried out. For example, a patient detained under the Mental Health Act 1983 for treatment for schizophrenia may also need treatment for diabetes. If the person is assessed as lacking capacity for that decision, then professionals will need to provide care and treatment in their best interests, as they would for any other patient who lacks capacity. However if they do have capacity, then they have the right to refuse treatment for diabetes.
People detained under the Mental Health Act 1983 can be treated for mental disorder without the consent or the person or their attorneys or deputies i.e. the Mental Health Act 1983 “trumps” the Mental Capacity Act.
However, the provisions of the Mental Capacity Act will be relevant to treatment for mental disorder of: Patients who have been admitted to hospital under Section 4 Mental Health Act 1983 on the basis of a single medical recommendation, where the second recommendation has yet to be received. Hospital patients temporarily detained under Section 5 Mental Health Act 1983 pending a decision on whether to make an application for their substantive detention.
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 16 of 47 Patients recommended by a court to hospital for a report under Section 35 Mental Health Act 1983. Patients detained under Section 37(4) Mental Health Act 1983 in a place of safety. Patients subject to Guardianship or Supervised After Care who have been conditionally discharged.
4.5.4. Advance Decisions under the Mental Health Act 1983
Detention under the Mental Health Act 1983 does not invalidate any advance decision that a patient may have made. However, because the Mental Health Act 1983 provides the authority to treat patients without consent, the advance decision can be overridden. Nevertheless it should be taken into account by the clinicians concerned when deciding whether it is appropriate to provide the treatment for mental disorder.
4.5.5. The role and powers of Attorneys and Deputies
The fact that a person is subject to the Mental Health Act 1983 does not invalidate an LPA or the authority of a Court-appointed Deputy to make decisions on behalf of a person lacking capacity.
Attorneys and Deputies will therefore be able to take decisions in relation to the welfare, property or affairs of a person lacking capacity, apart from consenting on a patient’s behalf to treatment regulated by Part IV of the Mental Health Act 1983 or in situations where a Guardian or Supervisor is in place (see above).
Deputies or Attorneys with relevant authority will also be able to exercise patients’ rights under the Mental Health Act 1983 on their behalf. In particular they will be able to apply to the Mental Health Review Tribunals for discharge from detention, guardianship or after care supervision. This is in addition to any rights of the patient’s nearest relative.
4.6. Restraint and restriction of liberty
Restraint is defined by the Act as the use or threat of force to make a person who lacks capacity do something that they are resisting, or the restriction of a person’s freedom of movement, whether they are resisting or not. It is only permitted if: the person taking action reasonably believes that restraint is necessary to prevent harm to the person who lacks capacity, and the amount or type of restraint used and the amount of time it lasts must be a proportionate response to the likelihood and seriousness of harm.
The freedom of movement of people who lack capacity may be lawfully restricted for the purpose of being provided with care or treatment in hospitals or care homes if it is in their own best interests and there is no less restrictive alternative. However there is a fine line between the restriction of liberty and the deprivation of liberty, which has been ruled unlawful by the European
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 17 of 47 Court of Human Rights.9 Deprivation of liberty differs only by “degree or intensity” from restriction of liberty.
The Mental Health (Amendment) Bill will allow for lawful restriction of freedom of movement through the Bournewood Safeguards. If the Bill passes into law by June 2007, it should be implemented by April 2008. The Bill is supported by draft Illustrative Guidance which should be followed in the meantime10. The guidance states that it must be established that there is no other alternative to the deprivation of liberty of the service user and that it is done in a lawful way. The process is similar to the one described in this policy, involving an assessment of capacity, ensuring decisions are in the best interests of the service user and an IMCA is engaged and consulted where necessary. Given the gravity of the decision to deprive the service user of their liberty, the assessment of capacity and the best interests decision are made by an “assessor” (usually a doctor, an Approved Mental Health Social Worker or similarly skilled professional) and carefully recorded.
4.7. Ill-treatment and neglect
A new offence of ill-treatment or wilful neglect of a person who lacks capacity is introduced by the Act. It applies to carers, Attorneys and Deputies. Ill- treatment and neglect are not defined in the Act but the following definitions have been agreed locally:
Ill-treatment is where, through the use of intimidation, bullying, coercion, physical or sexual harm, the carer treats a person who lacks capacity unfairly and with no regard for their civil liberties or human rights.
Neglect is the failure of the carer to provide appropriate care to a person who lacks capacity. This may include ignoring the person’s medical or physical care needs, failing to get healthcare or social care and withholding medication, food or heating.
If a vulnerable adult is believed to be being abused, whether they have capacity or not, Tower Hamlets Adult Protection Procedures must be followed. As part of the process of Adult Protection, an assessment of capacity will automatically take place if capacity is in doubt. Although the new offence does not make any fundamental changes to the procedures, it should lead to more successful prosecutions in adult abuse cases.
4.8. Using the IMCA service
4.8.1. When to instruct an IMCA
An IMCA is a specially-trained, non-instructed advocate who represents a person lacking capacity when they have no-one else to make decisions on
9 In HL vs the United Kingdom (05/10/04), known as the Bournewood judgment. 10 Published by the DH - see Appendix 5 for link. Once the Bill becomes law, the Guidance will be integrated into the Mental Capacity Act Code of Practice and locally a procedure will be drawn up.
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 18 of 47 their behalf (i.e. carer, family, friend, Attorney or Deputy). An IMCA must be instructed if the decision concerns the following: Serious medical treatment provided by the NHS Moving the person into long term care of more than 28 consecutive days in a hospital or 8 consecutive weeks in a care home A long term move of 8 weeks or more to a different hospital or care home
If you are a health or social care professional making a decision of this kind, it is your statutory duty to instruct an IMCA before making the decision, unless it is an emergency.
In addition, an IMCA may be appointed if the decision concerns the following: Care reviews Adult protection allegations
In these cases, you must be sure that the IMCA will offer additional benefit to the person who lacks capacity and you must follow the best interests checklist. For care reviews, this would be when a decision to change a care package with serious implications for quality of life. In Adult Protection cases, this will most likely be in the following situations: There are family and friends but there is a reasonable belief that they may not be acting in the best interests of the person (as defined by the Checklist) The protection plan drawn up in the Adult Protection Strategy/Case Conference involves life changing decisions or serious continued exposure to risk. There is a potential conflict of interest between the responsible body and the person who lacks capacity. The person who lacks capacity is the alleged abuser. You should consult with the Adult Protection Team before making an IMCA referral relating to Adult Protection. They will also be able to advise at which stage you should involve the IMCA.
In Tower Hamlets the IMCA service is provided by Advocacy Partners. Referrals must be made through a designated referrer - Advocacy Partners will not accept direct referrals. Designated referrers may be your team manager or the Mental Capacity Policy leads listed in Appendix 5. You will need to complete a referral form, which can be found in Appendix 4.
4.8.2. Duties and powers of an IMCA
The duties of an IMCA are to: support the person who lacks capacity and represent their views and interests to the decision-maker; obtain and evaluate information; as far as possible, ascertain the person’s wishes and feelings, beliefs and values; ascertain alternative courses of action, and; obtain a further medical opinion, if necessary.
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 19 of 47 In order to carry out these duties, the IMCA has more powers than a standard independent advocate including the right to visit the person lacking capacity, access to documents which the person holding the record feels are relevant e.g. clinical records, care plans or social care assessment records and can hold discussions with health and social care staff.
The IMCA need not necessarily attend the meeting where the decision is made but you have a duty to take the information they have provided and their opinions into account. In most cases you should try to reach a consensus including, as far as possible, the wishes and feelings of the person lacking capacity.
4.9. Court of Protection (from 1 October 2007)
The Court of Protection is the arbiter in Mental Capacity issues. It becomes involved in complex or disputed cases when all other attempts at resolution have been exhausted (see Section 4.11 on resolving disputes). If a series of decisions are needed in such a case, the Court may appoint a Deputy to make them. Their powers will vary in case to case and may cover property and affairs or personal welfare. It is anticipated that the involvement of Deputies in personal welfare cases will be very rare. The involvement of Court will alert you to the need to consult a Deputy, whose decision you must abide by.
The procedure for applications from statutory agencies to the Court of Protection regarding financial matters remains the same i.e. they should be submitted through the LBTH Adult Protection Co-ordinator.
4.10. Lasting Power of Attorney (from 1 October 2007)
The Act allows a person to appoint an attorney to act on their behalf if they should lose capacity in the future. This is like the current Enduring Power of Attorney (EPA) in relation to property and affairs, but the Act also allows people to empower an attorney to make health and welfare decisions. Before it can be used an LPA must be registered with the Office of the Public Guardian. EPAs created before October 2007 can be registered after the implementation date but it will not be possible to create EPAs after this time. LPAs will be available from October 2007.
An Attorney given the power to make health and welfare decisions is the decision-maker on all matters relating to the person lacking capacity’s care and treatment. Unless the LPA specifies limits to the Attorney’s authority, they have the authority to make personal welfare decisions and refuse treatment on the person’s behalf apart from the refusal of life-sustaining treatment, which must be explicitly included in the LPA.
If a person lacks capacity to agree to part or all of any proposed care or treatment, health and social care staff must find out if an Attorney has been appointed from local information systems or the Office of the Public Guardian
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 20 of 47 (see Section 2.2 above). If so, they must establish the extent of the Attorney’s power, by reading the LPA if possible, and obtain their agreement to the proposed care or treatment. They should also seek their opinion when acting in the person’s best interest, where practicable (see Section 4.3).
If there is concern that an Attorney is not acting in the best interests of the person lacking capacity, the Office of the Public Guardian should be contacted.
4.11. Resolving disagreements about best interests
Disagreements may arise about whether a decision is in the best interests of the person who lacks capacity. Concerns, disputes or disagreements should be addressed as soon as practically possible to prevent escalation. Some initial steps could be: Clarify all options Consider use of external support in discussions with the family Engaging independent expert advice Acknowledge and address concerns Where the situation is not urgent, allow time for reflection
If the disagreement is between two members of the public such as family members and/or an Attorney, mediation services such as the National Mediation Helpline could be engaged in an attempt to resolve the dispute.
If the disagreement is between health or social care staff and a member of the public (e.g. unpaid carer, Attorney), the existing complaints procedures of the relevant statutory agency should be followed.
In both cases, the most serious or urgent decisions may need to be referred to the Court of Protection (see Section 4.9 above).
4.12. Information Disclosure
Any information sharing between health and social care organisations must be done in accordance with the terms of the East London Health and Social Care Inter Organisation General Protocol for Sharing Information. A specific agreement is planned - the Mental Capacity Subject Specific Information Sharing Agreement (SSISA).
All information sharing must be properly recorded in the service user’s care file. The format will be set out in the SSISA and must include what information was shared, who decided the sharing was necessary, why, when, how and to whom.
Requests for information must only be fulfilled if there is sufficient legal grounds to do so e.g. from an Attorney or under statutory requirements to disclose to the Office of the Public Guardian. Deputies are rarely granted the authority to make such requests unless the terms of their appointment
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 21 of 47 specifically include it, otherwise an order by the Court of Protection is required.
Any information disclosure to family, friends or unpaid carers must only be done where it is in the service user’s best interests, and where it is required to support their care, or to make an assessment as to which services are required.
If there are concerns about the alleged abuse of a vulnerable adult, information should be shared as part of the Adult Protection procedure.
If in any doubt, Adult Services staff should contact the Information Governance Officer. PCT staff should contact the Caldicott Guardian or the Information Governance Officer. GPs in independent practice should contact their regulatory body.
5. Research involving people who lack capacity
Clinical, health and social care research which would normally require consent can involve people who lack capacity, albeit within a tight framework. Broadly speaking, the research must benefit the person or people in a similar condition and must not be possible using people who do have capacity.
As when acting in best interests, the person’s past and present wishes and feelings override the researcher’s other concerns. Where these are not known, unpaid carers, relatives, Attorneys or Deputies should be consulted. If this is not possible then someone else may be nominated. This could be the health or social care professional caring for the person. The research should stop if the person without capacity shows any sign that they are not happy to be involved in the research.
Medical research involving people who lack capacity will be approved by the Bart’s and the London Research Ethics Committee. All Social care research is initially subject to the Tower Hamlets Research Governance Framework. If it involves people who lack capacity, it will be referred onto the Bart’s and the London Research Ethics Committee.
There are separate rules for long-term research involving people who initially consented but have since lost capacity. Generally, the consent is still valid unless there are new actions which would require the consent of a person with capacity e.g. a further tissue sample is needed. In such cases, the normal rules outlined above apply. Please refer to the Code of Practice for more information on this type of research.
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 22 of 47 Appendix 1: Flowchart
Service user makes an Advance Existing service Decision or LPA, or expresses user wish about future care/treatment
Do they have any of the ALL SERVICE following? Record on local USERS · LPA New service user Yes information · Deputy system · Advance Decision or other statement of wishes
No
· Provide all relevant information · Clear, appropriate presentation of information Service user · Appropriate time and place needs to make a · Consider using advocate decision · Accept “eccentric” decisions if consequences understood DECISION MAKING No
Is the service user able to make Yes decision ? No
No Is the impairment or disturbance sufficient that the person lacks capacity to make that Is there an particular decision? i.e. are they unable to; Person lacks impairment of or · understand the information relevant to the capacity - record Carry out capacity disturbance in the decision result of assessment for Yes Yes functioning of the · retain that information assessment on ASSESSING specific decision persons mind or · use that information as part of the process local information CAPACITY brain? of making the decision, or system · communicate the decision
Is the decision about major Decision or act connected Does the service Does the person medical treatment, with care/treatment needed user have an No No have family, carer No a change of Yes – does it involve a Attorney or a or friends? residence, a Care deprivation of liberty? Deputy? Review or Adult Protection? Yes Yes Follow Check whether Bournewood service user has Yes Safeguards any valid and Involve them in Consider Procedure applicable decision-making engaging IMCA Advance Decisions.
No
Make decision in Best Interests of the WORKING service user, following checklist . Consider: · Equal consideration and non- WITH discrimination PEOPLE · All relevant circumstances WHO LACK · Likelihood of regaining capacity · Involving service user in process as far Record decision CAPACITY as possible and decision- · Life-sustaining treatment making process · Past and present wishes, feelings, beliefs and values · Views of other people (Attorney, Deputy, family, carer, staff) · Is the decision the least restrictive of rights and freedoms?
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 23 of 47 Appendix 2: Mental Capacity Assessment Form
Name: Date of birth: Gender: Age: Ethnicity: File number (SWIFT, EMIS, SEPIA etc):
Name and relationship of next of kin: Next of kin contact details:
GP: GP contact details:
What is the decision being made?
Is there an impairment of or disturbance in the functioning of the persons mind or brain? yes no don’t know
If so: Is the person unable to understand the information relevant to the decision yes no don’t know Is the person unable to retain that information yes no don’t know Is that person unable to use the information as part of the process of making the decision yes no don’t know or Is that person unable to communicate the decision (whether by talking, using sign language or any other means) yes no don’t know
Based on the above information, in your professional judgement, does the person have the capacity to make this decision? yes / no / not sure What decision has the person made, if any? If the person lacks capacity, what decision has been taken?
Person determining capacity (print name and designation) …………………….
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 24 of 47 Appendix 3: Determining best interests – the checklist11
© Crown Copyright 2007
What must be taken into account when trying to work out someone’s best interests?
5.13 Because every case – and every decision – is different, the law can’t set out all the factors that will need to be taken into account in working out someone’s best interests. But section 4 of the Act sets out some common factors that must always be considered when trying to work out someone’s best interests. These factors are summarised in the checklist here:
Working out what is in someone’s best interests cannot be based simply on someone’s age, appearance, condition or behaviour. (see paragraphs 5.16–5.17). All relevant circumstances should be considered when working out someone’s best interests (paragraphs 5.18–5.20). Every effort should be made to encourage and enable the person who lacks capacity to take part in making the decision (paragraphs 5.21–5.24). If there is a chance that the person will regain the capacity to make a particular decision, then it may be possible to put off the decision until later if it is not urgent (paragraphs 5.25–5.28). Special considerations apply to decisions about life-sustaining treatment (paragraphs 5.29–5.36). The person’s past and present wishes and feelings, beliefs and values should be taken into account (paragraphs 5.37–5.48). The views of other people who are close to the person who lacks capacity should be considered, as well as the views of an attorney or deputy (paragraphs 5.49–5.55).
It’s important not to take shortcuts in working out best interests, and a proper and objective assessment must be carried out on every occasion. If the decision is urgent, there may not be time to examine all possible factors, but the decision must still be made in the best interests of the person who lacks capacity. Not all the factors in the checklist will be relevant to all types of decisions or actions, and in many cases other factors will have to be considered as well, even though some of them may then not be found to be relevant.
5.14 What is in a person’s best interests may well change over time. This means that even where similar actions need to be taken repeatedly in connection with the person’s care or treatment, the person’s best interests should be regularly reviewed.
11 This checklist is reproduced verbatim from the Mental Capacity Act Code of Practice.
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 25 of 47 5.15 Any staff involved in the care of a person who lacks capacity should make sure a record is kept of the process of working out the best interests of that person for each relevant decision, setting out:
how the decision about the person’s best interests was reached what the reasons for reaching the decision were who was consulted to help work out best interests, and what particular factors were taken into account.
This record should remain on the person’s file.
For major decisions based on the best interests of a person who lacks capacity, it may also be useful for family and other carers to keep a similar kind of record.
What safeguards does the Act provide around working out someone’s best interests?
5.16 Section 4(1) states that anyone working out someone’s best interests must not make unjustified assumptions about what their best interests might be simply on the basis of the person’s age, appearance, condition or any aspect of their behaviour. In this way, the Act ensures that people who lack capacity to make decisions for themselves are not subject to discrimination or treated any less favourably than anyone else.
5.17 ‘Appearance’ is a broad term and refers to all aspects of physical appearance, including skin colour, mode of dress and any visible medical problems, disfiguring scars or other disabilities. A person’s ‘condition’ also covers a range of factors including physical disabilities, learning difficulties or disabilities, age-related illness or temporary conditions (such as drunkenness or unconsciousness). ‘Behaviour’ refers to behaviour that might seem unusual to others, such as talking too loudly or laughing inappropriately.
Scenario: Following the checklist Martina, an elderly woman with dementia, is beginning to neglect her appearance and personal hygiene and has several times been found wandering in the street unable to find her way home. Her care workers are concerned that Martina no longer has capacity to make appropriate decisions relating to her daily care. Her daughter is her personal welfare attorney and believes the time has come to act under the Lasting Power of Attorney (LPA).
She assumes it would be best for Martina to move into a care home, since the staff would be able to help her wash and dress smartly and prevent her from wandering.
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 26 of 47 However, it cannot be assumed simply on the basis of her age, condition, appearance or behaviour either that Martina lacks capacity to make such a decision or that such a move would be in her best interests. Instead, steps must be taken to assess her capacity. If it is then agreed that Martina lacks the capacity to make this decision, all the relevant factors in the best interests’ checklist must be considered to try to work out what her best interests would be.
Her daughter must therefore consider: Martina’s past and present wishes and feelings the views of the people involved in her care any alternative ways of meeting her care needs effectively which might be less restrictive of Martina’s rights and freedoms, such as increased provision of home care or attendance at a day centre.
By following this process, Martina’s daughter can then take decisions on behalf of her mother and in her best interests, when her mother lacks the capacity to make them herself, on any matters that fall under the authority of the LPA.
How does a decision-maker work out what ‘all relevant circumstances’ are?
5.18 When trying to work out someone’s best interests, the decision-maker should try to identify all the issues that would be most relevant to the individual who lacks capacity and to the particular decision, as well as those in the ‘checklist’. Clearly, it is not always possible or practical to investigate in depth every issue which may have some relevance to the person who lacks capacity or the decision in question. So relevant circumstances are defined in section 4(11) of the Act as those:
‘(a) of which the person making the determination is aware, and (b) which it would be reasonable to regard as relevant.’
5.19 The relevant circumstances will of course vary from case to case. For example, when making a decision about major medical treatment, a doctor would need to consider the clinical needs of the patient, the potential benefits and burdens of the treatment on the person’s health and life expectancy and any other factors relevant to making a professional judgement.12 But it would not be reasonable to consider issues such as life expectancy when working out whether it would be in someone’s best interests to be given medication for a minor problem.
5.20 Financial decisions are another area where the relevant circumstances will vary. For example, if a person had received a substantial sum of money as compensation for an accident resulting in brain injury, the
12 An Hospital NHS Trust v S [2003] EWHC 365 (Fam), paragraph 47
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 27 of 47 decision-maker would have to consider a wide range of circumstances when making decisions about how the money is spent or invested, such as:
whether the person’s condition is likely to change whether the person needs professional care, and whether the person needs to live somewhere else to make it easier for them.
These kinds of issues can only be decided on a case-by-case basis.
How should the person who lacks capacity be involved in working out their best interests?
5.21 Wherever possible, the person who lacks capacity to make a decision should still be involved in the decision-making process (section 4(4)).
5.22 Even if the person lacks capacity to make the decision, they may have views on matters affecting the decision, and on what outcome would be preferred. Their involvement can help work out what would be in their best interests.
5.23 The decision-maker should make sure that all practical means are used to enable and encourage the person to participate as fully as possible in the decision-making process and any action taken as a result, or to help the person improve their ability to participate.
5.24 Consulting the person who lacks capacity will involve taking time to explain what is happening and why a decision needs to be made. Chapter 3 includes a number of practical steps to assist and enable decision-making which may be also be helpful in encouraging greater participation. These include:
using simple language and/or illustrations or photographs to help the person understand the options asking them about the decision at a time and location where the person feels most relaxed and at ease breaking the information down into easy-to-understand points using specialist interpreters or signers to communicate with the person.
This may mean that other people are required to communicate with the person to establish their views. For example, a trusted relative or friend, a full-time carer or an advocate may be able to help the person to express wishes or aspirations or to indicate a preference between different options.
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 28 of 47 More information on all of these steps can be found in chapter 3.
Scenario: Involving someone in working out their best interests
The parents of Amy, a young woman with learning difficulties, are going through a divorce and are arguing about who should continue to care for their daughter. Though she cannot understand what is happening, attempts are made to see if Amy can give some indication of where she would prefer to live.
An advocate is appointed to work with Amy to help her understand the situation and to find out her likes and dislikes and matters which are important to her. With the advocate’s help, Amy is able to participate in decisions about her future care.
How do the chances of someone regaining and developing capacity affect working out what is in their best interests?
5.25 There are some situations where decisions may be deferred, if someone who currently lacks capacity may regain the capacity to make the decision for themselves. Section 4(3) of the Act requires the decision-maker to consider:
whether the individual concerned is likely to regain the capacity to make that particular decision in the future, and if so, when that is likely to be.
It may then be possible to put off the decision until the person can make it for themselves.
5.26 In emergency situations – such as when urgent medical treatment is needed – it may not be possible to wait to see if the person may regain capacity so they can decide for themselves whether or not to have the urgent treatment.
5.27 Where a person currently lacks capacity to make a decision relating to their day-to-day care, the person may – over time and with the right support – be able to develop the skills to do so. Though others may need to make the decision on the person’s behalf at the moment, all possible support should be given to that person to enable them to develop the skills so that they can make the decision for themselves in the future.
Scenario: Taking a short-term decision for someone who may regain capacity
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 29 of 47 Mr Fowler has suffered a stroke leaving him severely disabled and unable to speak. Within days, he has shown signs of improvement, so with intensive treatment there is hope he will recover over time. But at present both his wife and the hospital staff find it difficult to communicate with him and have been unable to find out his wishes. He has always looked after the family finances, so Mrs Fowler suddenly discovers she has no access to his personal bank account to provide the family with money to live on or pay the bills. Because the decision can’t be put off while efforts are made to find effective means of communicating with Mr Fowler, an application is made to the Court of Protection for an order that allows Mrs Fowler to access Mr Fowler’s money.
The decision about longer-term arrangements, on the other hand, can be delayed until alternative methods of communication have been tried and the extent of Mr Fowler’s recovery is known.
5.28 Some factors which may indicate that a person may regain or develop capacity in the future are:
the cause of the lack of capacity can be treated, either by medication or some other form of treatment or therapy the lack of capacity is likely to decrease in time (for example, where it is caused by the effects of medication or alcohol, or following a sudden shock) a person with learning disabilities may learn new skills or be subject to new experiences which increase their understanding and ability to make certain decisions the person may have a condition which causes capacity to come and go at various times (such as some forms of mental illness) so it may be possible to arrange for the decision to be made during a time when they do have capacity a person previously unable to communicate may learn a new form of communication (see chapter 3).
How should someone’s best interests be worked out when making decisions about life-sustaining treatment?
5.29 A special factor in the checklist applies to decisions about treatment which is necessary to keep the person alive (‘life-sustaining treatment’) and this is set out in section 4(5) of the Act. The fundamental rule is that anyone who is deciding whether or not life-sustaining treatment is in the best interests of someone who lacks capacity to consent to or refuse such treatment must not be motivated by a desire to bring about the person’s death.
5.30 Whether a treatment is ‘life-sustaining’ depends not only on the type of treatment, but also on the particular circumstances in which it may be prescribed. For example, in some situations giving antibiotics may be
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 30 of 47 life-sustaining, whereas in other circumstances antibiotics are used to treat a non-life-threatening condition. It is up to the doctor or healthcare professional providing treatment to assess whether the treatment is life- sustaining in each particular situation.
5.31 All reasonable steps which are in the person’s best interests should be taken to prolong their life. There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life- sustaining treatment, even if this may result in the person’s death. The decision-maker must make a decision based on the best interests of the person who lacks capacity. They must not be motivated by a desire to bring about the person’s death for whatever reason, even if this is from a sense of compassion. Healthcare and social care staff should also refer to relevant professional guidance when making decisions regarding life-sustaining treatment.
5.32 As with all decisions, before deciding to withdraw or withhold life- sustaining treatment, the decision-maker must consider the range of treatment options available to work out what would be in the person’s best interests. All the factors in the best interests checklist should be considered, and in particular, the decision-maker should consider any statements that the person has previously made about their wishes and feelings about life-sustaining treatment.
5.33 Importantly, section 4(5) cannot be interpreted to mean that doctors are under an obligation to provide, or to continue to provide, life-sustaining treatment where that treatment is not in the best interests of the person, even where the person’s death is foreseen. Doctors must apply the best interests’ checklist and use their professional skills to decide whether life-sustaining treatment is in the person’s best interests. If the doctor’s assessment is disputed, and there is no other way of resolving the dispute, ultimately the Court of Protection may be asked to decide what is in the person’s best interests.
5.34 Where a person has made a written statement in advance that requests particular medical treatments, such as artificial nutrition and hydration (ANH), these requests should be taken into account by the treating doctor in the same way as requests made by a patient who has the capacity to make such decisions. Like anyone else involved in making this decision, the doctor must weigh written statements alongside all other relevant factors to decide whether it is in the best interests of the patient to provide or continue life-sustaining treatment.
5.35 If someone has made an advance decision to refuse life-sustaining treatment, specific rules apply. More information about these can be
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 31 of 47 found in chapter 9 and in paragraph 5.45 below.
5.36 As mentioned in paragraph 5.33 above, where there is any doubt about the patient’s best interests, an application should be made to the Court of Protection for a decision as to whether withholding or withdrawing life-sustaining treatment is in the patient’s best interests.
How do a person’s wishes and feelings, beliefs and values affect working out what is in their best interests?
5.37 Section 4(6) of the Act requires the decision-maker to consider, as far as they are ‘reasonably ascertainable’:
‘ (a) the person’s past and present wishes and feelings (and in particular, any relevant written statements made by him when he had capacity), (b) the beliefs and values that would be likely to influence his decision if he had capacity, and (c) the other factors that he would be likely to consider if he were able to do so.’
Paragraphs 5.38–5.48 below give further guidance on each of these factors.
5.38 In setting out the requirements for working out a person’s ‘best interests’, section 4 of the Act puts the person who lacks capacity at the centre of the decision to be made. Even if they cannot make the decision, their wishes and feelings, beliefs and values should be taken fully into account – whether expressed in the past or now. But their wishes and feelings, beliefs and values will not necessarily be the deciding factor in working out their best interests. Any such assessment must consider past and current wishes and feelings, beliefs and values alongside all other factors, but the final decision must be based entirely on what is in the person’s best interests.
Scenario: Considering wishes and feelings as part of best interests
Andre, a young man with severe learning disabilities who does not use any formal system of communication, cuts his leg while outdoors. There is some earth in the wound. A doctor wants to give him a tetanus jab, but Andre appears scared of the needle and pushes it away. Assessments have shown that he is unable to understand the risk of infection following his injury, or the consequences of rejecting the injection. The doctor decides that it is in the Andre’s best interests to give the vaccination. She asks a nurse to comfort Andre, and if necessary, restrain him while she gives the injection. She has objective reasons for believing she is acting in Andre’s best interests, and for believing that Andre lacks capacity to make the
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 32 of 47 decision for himself. So she should be protected from liability under section 5 of the Act (see chapter 6).
What is ‘reasonably ascertainable’? 5.39 How much someone can learn about a person’s past and present views will depend on circumstances and the time available. ‘Reasonably ascertainable’ means considering all possible information in the time available. What is available in an emergency will be different to what is available in a non-emergency. But even in an emergency, there may still be an opportunity to try to communicate with the person or his friends, family or carers (see chapter 3 for guidance on helping communication).
What role do a person’s past and present wishes and feelings play? 5.40 People who cannot express their current wishes and feelings in words may express themselves through their behaviour. Expressions of pleasure or distress and emotional responses will also be relevant in working out what is in their best interests. It is also important to be sure that other people have not influenced a person’s views. An advocate could help the person make choices and express their views.
5.41 The person may have held strong views in the past which could have a bearing on the decision now to be made. All reasonable efforts must be made to find out whether the person has expressed views in the past that will shape the decision to be made. This could have been through verbal communication, writing, behaviour or habits, or recorded in any other way (for example, home videos or audiotapes).
5.42 Section 4(6)(a) places special emphasis on written statements the person might have made before losing capacity. These could provide a lot of information about a person’s wishes. For example, these statements could include information about the type of medical treatment they would want in the case of future illness, where they would prefer to live, or how they wish to be cared for.
5.43 The decision-maker should consider written statements carefully. If their decision does not follow something a person has put in writing, they must record the reasons why. They should be able to justify their reasons if someone challenges their decision.
5.44 A doctor should take written statements made by a person before losing capacity which request specific treatments as seriously as those made by people who currently have capacity to make treatment decisions. But they would not have to follow a written request if they think the specific treatment would be clinically unnecessary or not appropriate for the person’s condition, so not in the person’s best interests.
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 33 of 47 5.45 It is important to note the distinction between a written statement expressing treatment preferences and a statement which constitutes an advance decision to refuse treatment. This is covered by section 24 of the Act, and it has a different status in law. Doctors cannot ignore a written statement that is a valid advance decision to refuse treatment. An advance decision to refuse treatment must be followed if it meets the Act’s requirements and applies to the person’s circumstances. In these cases, the treatment must not be given (see chapter 9 for more information). If there is not a valid and applicable advance decision, treatment should be provided based on the person’s best interests.
What role do beliefs and values play? 5.46 Everybody’s values and beliefs influence the decisions they make. They may become especially important for someone who lacks capacity to make a decision because of a progressive illness such as dementia, for example. Evidence of a person’s beliefs and values can be found in things like their:
cultural background religious beliefs political convictions, or past behaviour or habits.
Some people set out their values and beliefs in a written statement while they still have capacity.
Scenario: Considering beliefs and values Anita, a young woman, suffers serious brain damage during a car accident. The court appoints her father as deputy to invest the compensation she received. As the decision-maker he must think about her wishes, beliefs and values before deciding how to invest the money.
Anita had worked for an overseas charity. Her father talks to her former colleagues. They tell him how Anita’s political beliefs shaped her work and personal beliefs, so he decides not to invest in the bonds that a financial adviser had recommended, because they are from companies Anita would not have approved of. Instead, he employs an ethical investment adviser to choose appropriate companies in line with her beliefs.
What other factors should a decision-maker consider? 5.47 Section 4(6)(c) of the Act requires decision-makers to consider any other factors the person who lacks capacity would consider if they were able to do so. This might include the effect of the decision on other people, obligations to dependants or the duties of a responsible citizen.
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 34 of 47 5.48 The Act allows actions that benefit other people, as long as they are in the best interests of the person who lacks capacity to make the decision. For example, having considered all the circumstances of the particular case, a decision might be made to take a blood sample from a person who lacks capacity to consent, to check for a genetic link to cancer within the family, because this might benefit someone else in the family. But it might still be in the best interests of the person who lacks capacity. ‘Best interests’ goes beyond the person’s medical interests.
For example, courts have previously ruled that possible wider benefits to a person who lacks capacity to consent, such as providing or gaining emotional support from close relationships, are important factors in working out the person’s own best interests.1713 If it is likely that the person who lacks capacity would have considered these factors themselves, they can be seen as part of the person’s best interests.
Who should be consulted when working out someone’s best interests?
5.49 The Act places a duty on the decision-maker to consult other people close to a person who lacks capacity, where practical and appropriate, on decisions affecting the person and what might be in the person’s best interests. This also applies to those involved in caring for the person and interested in the person’s welfare. Under section 4(7), the decision-maker has a duty to take into account the views of the following people, where it is practical and appropriate to do so:
anyone the person has previously named as someone they want to be consulted anyone involved in caring for the person anyone interested in their welfare (for example, family carers, other close relatives, or an advocate already working with the person) an attorney appointed by the person under a Lasting Power of Attorney, and a deputy appointed for that person by the Court of Protection.
5.50 If there is no-one to speak to about the person’s best interests, in some circumstances the person may qualify for an Independent Mental Capacity Advocate (IMCA). For more information on IMCAs, see chapter 10.
5.51 Decision-makers must show they have thought carefully about who to speak to. If it is practical and appropriate to speak to the above people, they must do so and must take their views into account. They must be able to explain why they did not speak to a particular person – it is good
13 See for example Re Y (Mental Incapacity: Bone marrow transplant) [1996] 2 FLR 787; Re A (Male Sterilisation) [2000] 1 FLR 549
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 35 of 47 practice to have a clear record of their reasons. It is also good practice to give careful consideration to the views of family carers, if it is possible to do so.
5.52 It is also good practice for healthcare and social care staff to record at the end of the process why they think a specific decision is in the person’s best interests. This is particularly important if healthcare and social care staff go against the views of somebody who has been consulted while working out the person’s best interests.
5.53 The decision-maker should try to find out:
what the people consulted think is in the person’s best interests in this matter, and if they can give information on the person’s wishes and feelings, beliefs and values.
5.54 This information may be available from somebody the person named before they lost capacity as someone they wish to be consulted. People who are close to the person who lacks capacity, such as close family members, are likely to know them best. They may also be able to help with communication or interpret signs that show the person’s present wishes and feelings. Everybody’s views are equally important – even if they do not agree with each other. They must be considered alongside the views of the person who lacks capacity and other factors. See paragraphs 5.62–5.69 below for guidance on dealing with conflicting views.
Scenario: Considering other people’s views
Lucia, a young woman with severe brain damage, is cared for at home by her parents and attends a day centre a couple of days each week. The day centre staff would like to take some of the service users on holiday. They speak to Lucia’s parents as part of the process of assessing whether the holiday would be in her best interests.
The parents think that the holiday would be good for her, but they are worried that Lucia gets very anxious if she is surrounded by strangers who don’t know how to communicate with her. Having tried to seek Lucia’s views and involve her in the decision, the staff and parents agree that a holiday would be in her best interests, as long as her care assistant can go with her to help with communication.
5.55 Where an attorney has been appointed under a Lasting Power of Attorney or Enduring Power of Attorney, or a deputy has been appointed by a court, they must make the decisions on any matters they have been appointed to deal with. Attorneys and deputies should also be consulted, if practical and appropriate, on other issues affecting
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 36 of 47 the person who lacks capacity.
For instance, an attorney who is appointed only to look after the person’s property and affairs may have information about the person’s beliefs and values, wishes and feelings, that could help work out what would be in the person’s best interests regarding healthcare or treatment decisions. (See chapters 7 and 8 for more information about the roles of attorneys and deputies.)
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 37 of 47
Appendix 4: IMCA referral form and guidance
ADVOCACY PARTNERS’ IMCA REFERRAL FORM
Advocacy Partners can provide an Independent Mental Capacity Advocate (IMCA) to people in their commissioned areas, where a decision is being made about either their; 1) serious medical treatment or 2) long term move (more than 28 days in hospital /8 weeks in a care home) and it is believed that the person does not have the capacity to make that decision and they have no family or friends ‘appropriate’ to consult with.
We may also be able to provide an IMCA where a person lacks capacity to agree to arrangements in; 3) accommodation reviews, where there are no family or friends able to support and represent the person.
4) adult protection proceedings, where the person is victim or alleged perpetrator, regardless of family and friend involvement
Please return to: IMCA, Advocacy Partners, McMillan House, 54 Cheam Common Rd, Worcester Park, Surrey KT4 8RH Email: [email protected] Telephone: 08450 170 198 (National rate) Fax: 020 8330 6622 Referral Information [please circle (or highlight if using email,) where there are options] 1.Client’s first Date of Funding Local M F /family name birth Authority Phone 2. Usual address Local Postcode Authority 3. Address Phone staying at, if Local different to Postcode above Authority
4. White White Black White/Black White/Asian Bangladeshi Indian Chinese British Irish Caribbean Caribbean Other white Black Other Black White/Black Other mixed Pakistani Other Asian Other Ethnic group: background African background African back ground: background
5. Client group Learning disability Autistic Spectrum Disorder Mental Health needs Serious physical illness Dementia Acquired brain injury Unconscious other
7.6. DecisionPrimary communication to be Serious English medical OtherLong language: term move Review Gestures/vocalisations/facialAdult protection expressions madePictures/symbols/MakatontreatmentBSL No obvious communication Other; 8. Capacity to make Capacity test by Capacity test by another Other: decision decision-maker professional
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 39 of 47 9. Has the decision been made yes no When does the decision need to be made? yet?
10. Decision-maker’s recommended cause of action?
11. Important! Please list deadlines and meeting dates
Yes, but Adult protection referral no uncertain Yes, but deemed not ‘appropriate’ to 12. Are there friends/family consult 13. Please describe briefly any concerns about family/friend involvement e.g. ‘not regular contact’, ‘conflict of interest’
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 40 of 47 14. Please list contact details of relevant people e.g. G.P., Care Manager, Key worker, Day centre etc
15. Referrer’s name Telephone
Relationship to client; (E.g. Care Manager, GP, Decision yes no social worker, consultant, home manager) maker?
Address
Email Mobile How did you hear Employing Local about this service? Authority or NHS body
16. Consent for referral: Where people are not able to consent to the referral themselves, the referrer must sign to say they are referring and providing information in the person’s best interests.
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 41 of 47 I would like Advocacy Partners to do this work. They can keep, and put on computer the information on this form, and other information I provide needed to do the work. I am providing this information and asking for this referral in the client’s best interests.
Referrer’s Date signature
IMCA referral form guidance
1. Please enter the clients’ first then family name, date of birth and circle/highlight gender. Funding Local Authority is the Local Authority responsible for the person’s funding.
2. Usual Address: where the person usually lives e.g. their own home or residential home, including service provider name. Please include the Local Authority this address is located in.
3. Address staying at; where the person is at the time of referral e.g. home or hospital. Please include service provider /ward name/ NHS body. Please include the Local Authority this address is in.
4. Ethnic group: please circle/highlight most appropriate name or write in other preferred name. 5. Client group: please circle/highlight most prominent client group. 6. Primary communication: please circle/highlight and in ‘other’ add if interpreter/signer is needed.
7. Decision to be made: the decision must be one of these options to qualify for an IMCA. You need to refer to your Local Authority guidelines for reviews/adult protection referrals.
8. Capacity to make a decision: it is the decision-maker’s responsibility to follow the capacity test in the Mental Capacity Act. The decision-maker must assess the person’s capacity to make the decision to which they are referring. A capacity assessment by a doctor is not needed for a referral to IMCA.
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 42 of 47 9. The decision should be made after consultation with the IMCA. Please indicate when the decision needs to be made. This is important to help us prioritise how quickly we need to provide an IMCA.
10. Please give reasons for your opinion of what should happen at this stage. This helps to monitor if the information provided by the IMCA changes outcomes.
11. Please list dates such as operations, Best Interest meetings. This is important to help us prioritise how quickly we need to provide an IMCA. It also helps us plan the IMCA’s time more effectively.
12/13. An IMCA can only be provided in serious medical treatment/long term moves/accommodation reviews if there are no ‘appropriate’ friends or family to consult with. It is the decision-maker’s decision as to whether the family or friends are appropriate to consult with. You should read the Code of Practice for guidance and check with your manager if you are not sure. You need to have justifiable reasons for deciding that the person’s family or friends are not appropriate to consult with. In adult protection you need to follow your Local Authority guidelines for using your discretionary powers.
14. Please list contact details of people that the IMCA will need to speak to. This should include where relevant G.P., consultant, care manager, key worker, care workers, day centre, employer, friends, family, colleagues. Providing this information enables the IMCA to respond faster.
15. Referrer’s details. Usually the referrer will be the decision-maker. The decision-maker is the person employed by the Local Authority or NHS body to action a decision. This is usually a care manager or a doctor. In some Local Authorities there are ‘gate keepers’, usually team leaders who you may need to approach to authorise your referral. Please check this with your manager.
We may accept an initial referral from someone other than a decision-maker where the referrer has been unsuccessful in persuading the decision-maker to refer and it seems likely that the person meets the criteria for an IMCA. In this situation however, we will need to contact the decision-maker to authorise the instruction of an IMCA before we proceed with providing an IMCA.
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 43 of 47 Please include all your contact details as this helps speed up communication. Please include the Local Authority or NHS body that employs you. This is for monitoring purposes.
16. This is for data protection and to record authorisation of the referral.
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 44 of 47 Appendix 5: Further information
Reading Mental Capacity Act 2005 – available at www.opsi.gov.uk/acts/acts2005/20050009.htm Mental Capacity Act Code of Practice – PDF download from http://www.dca.gov.uk/legal-policy/mental-capacity/mca-cp.pdf Department of Health Consent web pages - www.dh.gov.uk/PolicyAndGuidance/HealthAndSocialCareTopics/Consent/f s/en Bournewood Safeguards: Draft Illustrative Guidance (DH, 2006) – PDF download from www.dh.gov.uk/assetRoot/04/14/17/64/04141764.pdf. This guidance will be integrated into the Mental Capacity Act Code of Practice once it is finalised. Making decisions about your health, welfare or finance. Who decides when you can’t? (DCA, 2006) – PDF download from www.dca.gov.uk/legal-policy/mental-capacity/mca-guide-for-people- needing-help.pdf. Making decisions: A guide for people who work in health and social care – PDF download from www.dca.gov.uk/legal-policy/mental-capacity/mca- guide-for-professionals.pdf. Office of the Public Guardian website - www.publicguardian.gov.uk (from 1 October 2007) IMCA, Adult Protection and Care Reviews: Guidance on interpreting the regulations extending the IMCA role - PDF download from http://www.dh.gov.uk/assetRoot/04/14/21/64/04142164.pdf The Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006 – PDF download from http://www.opsi.gov.uk/si/si2006/uksi_20061832_en.pdf Tower Hamlets Adult Protection Policy and Procedure – PDF download from www.towerhamlets.gov.uk/data/caring-for-you/downloads/adult- protection.pdf DH Consent webpages - http://www.dh.gov.uk/PolicyAndGuidance/HealthAndSocialCareTopics/Co nsent/ConsentGeneralInformation/ConsentGeneralArticle/fs/en? CONTENT_ID=4015950&chk=BbHK9Z East London Health and Social Care Inter Organisation General Protocol for Sharing Information – PDF download from http://www.elcmht.nhs.uk/pdf/policy/information_sharing_protocol_v11.pdf
Local contacts
Mental Capacity Policy leads: LBTH – Mike Webb, tel. 020 7364 2328, e-mail [email protected] Tower Hamlets PCT – Peter Martin, e-mail [email protected] and Rachael Brady, tel. 020 8223 8499, e-mail [email protected] Bart’s and the London NHS Trust – Claire Kerlin, tel. 020 7480 4853, e- mail [email protected] East London and City Mental Health Trust – Ian Williamson, tel. 020 7364 2131, e-mail [email protected] Independent GP – Dr Syed Babar, e-mail [email protected] Metropolitan Police (Community Safety Unit, Limehouse Police Station) – DS Sarah Whittle, tel. 020 7275 4778, e-mail [email protected]
Multi-agency Adult Protection Co-ordinator – Tony Greenwood, tel. 020 7364 2328, e-mail [email protected]
For more information on the development of the Mental Capacity Subject Specific Information Sharing Agreement (SSISA), please contact Michael Hollis, Information Governance Officer at LBTH, tel. 020 7364 2057, e-mail [email protected].
National Mediation Helpline (funded by DCA), tel. 0845 60 30 809 www.nationalmediationhelpline.co.uk
Appendix 6: Glossary
Advance Decision - the Mental Capacity Act 2005 codifies decisions by the courts that competent and informed adults have the legal right to refuse specified medical procedures or treatment in advance provided the advance decision exists, is valid and applicable in the particular circumstances. Stricter safeguards apply to advance decisions to refuse life-sustaining treatment. Advance decisions on other matters (e.g. place of residence) do not have legal force but should given strong weight when acting in the best interests of a person who lacks capacity.
Attorney – a person appointed under a Lasting Power of Attorney (see below) to make decisions in the best interests of a person who lacks capacity.
Best Interests Checklist – a statutory checklist of factors, contained in the Code of Practice, which must always be considered when acting in the best interests of a person who lacks capacity.
Bournewood Safeguards – where the care or treatment of a person who lacks capacity involves a deprivation of liberty (but who are not detained under the Mental Health Act 1983), additional safeguards have been introduced to prevent a breach of human rights legislation.
Capacity – the Mental Capacity Act 2005 states that a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a
Tower Hamlets Multi-agency Mental Capacity Policy and Procedure Edition 2 Page 46 of 47 disturbance in the functioning of, the mind or brain. It is similar to Gillick competence in English Common Law which is used to determine whether a person is able to give consent to medical treatment.
Code of Practice – legally binding guidance on how to implement the Mental Capacity Act 2005. Health and social care staff have a duty to have regard for the Code.
Court of Protection – the Court of Protection has jurisdiction over all aspects of the Mental Capacity Act 2005. It takes over the former Court of Protection regarding the management of property and financial affairs of people who lack capacity. It also deals with serious decisions affecting healthcare and personal welfare matters that were previously dealt with by the High Court.
Deputy – an individual appointed by the Court of Protection to make on-going decisions on behalf of a person lacking capacity. Their powers will vary from case to case but it is likely that deputies will only be needed to make personal welfare or healthcare decisions in the most difficult cases.
Enduring Power of Attorney (EPA) – Prior to October 2007, EPAs allowed a person to appoint an Attorney to manage their property and financial affairs if they were to lose capacity. They are replaced by Lasting Powers of Attorney in the Mental Capacity Act 2005 but existing EPAs will continue to be valid.
Independent Mental Capacity Advocate – An IMCA is a specially-trained, non- instructed advocate who represents a person lacking capacity when they have no-one else to make decisions on their behalf and the decision concerns serious medical treatment, a change of residence, a Care Review or an Adult Protection issue.
Lasting Power of Attorney (LPA) – people can appoint an Attorney to make decisions should they lose capacity. There are two types; a Personal welfare LPA and a Property and Affairs LPA. All LPAs must be registered with the Office of the Public Guardian in order to have legal force.
Public Guardian – This public office has a range of functions in relation to protecting people who lack capacity from abuse. These include maintaining a register of LPAs and EPAs and a register of Deputies appointed by the Court of Protection. It is also known as the Office of the Public Guardian (OPG).
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