Mental Capacity Act and Law

Question 1

What is the Mental Capacity Act 2005?

Answer 1

Is designed to protect and empower individuals who may lack the mental capacity to make their own decisions about their care and treatment. It clarifies obligations on those acting for people who lack capacity and stipulates how individuals should determine capacity.

Question 2

What is the historical context of the Mental Capacity Act 2005?

Answer 2

It succeeded Common law, which was previously referred to when mental capacity issues were pulled into question.

Question 3

What did common law state in terms of mental incapacity? (x4 points)

Answer 3

• An individual who lacks mental competence cannot give consent. • Mental competence is task specific e.g., a patient may lack capacity for complex decisions, but not simple one. • Under common law, no one could consent on behalf of an adult who lacks mental capacity. • Treatment for someone who lacks capacity is lawful if it is necessary

Question 4

What were the issues with common law in relation to mental incapacity? (x4)

Answer 4

How is best interests defined? Who determines best interests? What is the role of previously expressed competent wishes in determining best interests? How do we ensure the rights of those lacking capacity are protected?

Question 5

How were best interests determined under Common Law?

Answer 5

BOLAM PRINCIPLE was used (arose from English tort law: see ‘Consent, confidentiality and children’) whereby a particular medical decision would be in the interests of the individual lacking capacity if a GROUP of doctors agree that it is in the patient’s best interests.

Question 6

What are the five key principles of the Mental Capacity Act 2005?

Answer 6

1. A presumption of capacity 2. The right for individuals to be supported to make their own decisions – people must be given all appropriate help before anyone concludes that they cannot make their own decisions 3. Patient has the right to make what might be seen as an eccentric or unwise decision 4. The statute must be used in best interests
2. Use of the stature should be the least restrictive of a patient’s basic rights and freedoms

Question 7

What is the MCA’s ‘functional approach’ to the determination of capacity? (x2)

Answer 7

(1) Is there an impairment, or disturbance in, the functioning of the mind or brain? (2) Is the impairment sufficient to impair capacity?

Question 8

How does the Mental Capacity Act 2005 assess capacity? (x4 parts)

Answer 8

It is a decision-specific test. A person is unable to make a decision for themselves if they are unable to (a) understand the information, (b) retain information, (c) use or weigh that information, (d) communicate their decision. Note how this is the same as COMPETENCE.

Question 9

What if someone lacks capacity (and is unable to understand information), but does consent to a procedure?

Answer 9

You would consider best interests – consider risk:benefit of procedure, age, alternative options, mental implications for someone who does not understand. Also must consider whether capacity is likely to change (fluctuant capacity)?

Question 10

What is the Principle of Equal Consideration in the Mental Capacity Act?

Answer 10

Decision about capacity should not be made solely based on whether the decision an individual makes is unwise, neither should they be based on appearance, assumptions, age, race, gender etc.

Question 11

What are the rights of an individual with capacity according to the MCA?

Answer 11

No one can consent on behalf of you, you have a right to refuse treatment, and no one can force treatment on you (provided you are fully informed).

Question 12

What is the role of the healthcare professional in the MCA?

Answer 12

Give enough information, give patient free choice without being unreasonably pressured.

Question 13

How are best interests determined in the Mental Capacity Act? (x6)

Answer 13

• Considering wishes and feelings of patient CURRENTLY and when they had capacity in the PAST
• Considering all the circumstances relevant including their physical illness, their mental illness.
• Action must be least restrictive and not disproportionate
• Consider whether they will have capacity to make the decision in future
• Support their involvement in acts done for them.
• Consider the views of carers, family, or people who may have interest in their welfare.

Question 14

Who is an independent mental capacity advocate (IMCA)? What are their roles?

Answer 14

• Is an advocate and NOT a decision maker for someone who does not have capacity.
• They are independent of the person, represent the person to work out whether the proposed procedure is in the person’s best interests, provide information to help identify the person’s best interests, and challenge decisions which appear not to be in the best interests.
• They have the right to see relevant medical records.
• They also help patients make a complaint if their opinion has not been taken into account by healthcare professionals, or if there is disagreement over best interests.

Question 15

When is an IMCA indicated for a patient? (x2 (x2))

Answer 15

For people lacking capacity who have NO ONE ELSE to support them when making decisions about SERIOUS MEDICAL TREATMENT, or when proposing/changing ACCOMMODATION in hospital or a care home and the person will (i) stay in hospital over 28 days, or (ii) they will stay in the care home for more than 8 weeks.

Question 16

What are the exceptions to IMCAs?

Answer 16

Urgent decisions.

Question 17

Can IMCAs make decisions of the patient?

Answer 17

NO – they support the patient to make decisions and support the patient where they cannot make decisions to make sure their best interests are considered.

Question 18

What is an advanced decision? Best interests?

Answer 18

Legal decision for advanced refusal of treatment when a person lacks mental capacity. It must be specific about the treatment that is being refused and the circumstances in which the refusal will apply. Best interests do NOT apply.

Question 19

What is an advanced decision does not meet the criteria required by it by law?

Answer 19

Not legally binding but should be considered as part of the patient’s best interests.

Question 20

Who can write an advanced decision? (x2)

Answer 20

Over 18 and have mental capacity (informed, competent, voluntary)

Question 21

What can advance decisions be? (x2)

Answer 21

• A refusal of care e.g., ventilation and CPR. Can be oral – does not have to be written. Though cannot refuse basic nursing care
• Life sustaining decisions must be WRITTEN, SIGNED and WITNESSED and clearly state that decision applies even if life is at risk.

Question 22

What may make advance decisions invalid? (x3)

Answer 22

• The decision was withdrawn while the person has capacity
• After the advance decision was made, a Legal Power of Attorney was appointed and given express authority to make decisions related to the AD
• The person has done something that clearly goes against the AD which suggests they might have changed their mind

Question 23

What circumstances may throw the applicability of an AD across a blurred line? What is a healthcare professionals’ liability in this context?

Answer 23

• Has the prognosis/treatment changed since the AD been made?
• Have there been children since the AD was made or major life events?
• Has there been a significant and lasting change in beliefs since the AD was made?
• In these cases, health professionals are not liable if they stop treatment due to REASONABLE belief that a valid AD exists, or treat a person and have taken REASONABLE steps to find out if a valid AD exists

Question 24

What happens if there is doubt or disagreement about an advanced decision?

Answer 24

Take to the Court of Protection.

Question 25

Under what circumstances can an AD be withdrawn? (x2)

Answer 25

The withdrawal may be ORAL, can be withdrawn at any time as long as the maker is COMPETENT, and once the maker loses competence, it cannot be withdrawn.

Question 26

What is an advanced statement?

Answer 26

An advanced statement of wishes that explains a patient’s preference that is important for them to be comfortable. They are NOT legally binding, unlike advance decisions.

Question 27

What is the lasting power of an attorney?

Answer 27

A power of an attorney is a legal document that allows another person to make a decision on another’s behalf. Under a power of attorney, the donee can make decisions that are as valid as one made by the donor. Decisions made by an LPA must be in the person’s best interests.

Question 28

What are the requirements for Lasting Power of Attorney (LPA)? (x6)

Answer 28

* Donor must be over 18 * Donor must have capacity when the LPA is created * Must be written and signed * Extent of decision making must be specified in the LPA * Must make decisions in patient’s best interests * Must be registered with Office of Public Guardian

Question 29

When can an LPA make decisions for a patient?

Answer 29

An LPA can only be made when the patient has capacity and can only make decisions in the patient’s best interests. However, the LPA cannot begin making decisions until the patient has lost capacity.

Question 30

63 F with dementia has acute appendicitis and lacks capacity. Her son is the LPA and refuses treatment for his mother. What do you do?

Answer 30

The son only has legal authority as a decision maker if his decisions are in the mother’s best interests. His refusal of a straightforward, curative operation without which his mother is likely to ide, is unlikely to be best interests.

Question 31

What are the two types of LPA?

Answer 31

Welfare (concerns day-to-day care, access to personal info, consent/refusal of treatment), and Property and Affairs.

Question 32

Relationship between AD and LPA?

Answer 32

AD takes precedence unless the LPA was made LATER.

Question 33

Who can make decisions on behalf on an incapacitated individual in the MCA? (x5)

Answer 33

Carers, healthcare professions, donee of an LPA, court appointed deputy, or the court.

Question 34

What is Deprivation of Liberty Safeguards?

Answer 34

Now replaced by Liberty Protection Safeguards (LPS); part of the Mental Capacity Act. Provides protection for vulnerable people who are in hospitals, care homes or living in home, in circumstances that amount to a deprivation for their liberty AND who lack capacity to consent to the care/treatment they need

Question 35

When should an application for Deprivation of Liberty Safeguards be filed?

Answer 35

We do an ACID TEST: The acid test states that an individual who lacks the capacity to consent to the arrangements for their care and is subject to continuous supervision and control and is not free to leave their care setting, you should apply for a DoLS as this constitutes a deprivation of the individuals’ liberties.

Question 36

What is considered in a Deprivation of Liberty Safeguards process? (x3)

Answer 36

* A supervisory body assesses whether it is acceptable for the patient to be deprived in this way. All of the following conditions must be met, or a deprivation of liberty cannot be authorised: * (1) Are the restrictions depriving the person of their liberties? * (2) Are the restrictions in the person’s best interests? * (3) Should the individual instead be considered for detention under the MHA? * (4) No valid AD would be overridden by a DoLS.

Question 37

What is the Court of Protection? (x3 roles)

Answer 37

Part of the High Court and makes decision in relation to LPAs and appoints deputies. They also make certain medical decisions for a determination of best interests of an individual who lacks capacity e.g., withdrawing artificial nutrition for vegetative state patients, organ donation, sterilisation for non-therapeutic purposes, when there is doubt about best interests.

Question 38

What are court-appointed deputies? What can a deputy not do?

Answer 38

CoP can appoint a deputy to make decisions e.g., if significant decisions need to be made on a regular basis that would otherwise probably go to court. The deputy must act in the person’s best interests and the Court defines the scope and duration of the deputy’s authority. They CANNOT refuse life-sustaining treatment.

Question 39

Relationship between AD and Court appointed deputy?

Answer 39

AD takes precedence.