Mental capacity and covert administration of medication

Question 1

What is mental capacity?

Answer 1

• Mental capacity is a term used to describe the power that you or I have to make our own decisions.
• These decisions could be very simple or complex, and can be made frequently or rarely.
• These decisions can relate to any aspect of our lives.
• Unless we are assessed and are considered to lack mental capacity, everyone is assumed to have mental capacity and to be able to make these decisions themselves

Question 2

How do we know when someone lacks mental capacity?

Answer 2

• It is not always as easy as you might think to identify people who may lack mental capacity and need additional support
• The Mental Capacity Act 2005 helps us here
  A person may lack mental capacity if a person is unable to make or communicate a particular decision at a particular time, because of an impairment of, or disturbance in, the mind or brain.
• This means that capacity assessments are time and context specific

Question 3

Describe the Mental Capacity Act 2005?

Answer 3

• The Act focuses on empowering independent decision making, and protecting those who cannot make decisions for themselves
• If someone wants to make decision(s) on behalf of another person, they must conduct or arrange a mental capacity assessment for them
• Assessors must have training, and one person can be assessed for different decisions by different ppl

We must act within this legislation

Question 4

A person will be considered to lack mental capacity if they do not meet one of 4 criteria:

Answer 4

• Understand the information related to the particular decision to be made
• Remember the information long enough to make a particular decision
• Weigh up or use the information as part of the decision making process, including consequences of not receiving it
• Communicate the particular decision in any form

Question 5

Assessing mental capacity:

Answer 5

NEVER assume that someone lacks mental capacity to make a particular decision based on their …

• Differing opinion to yours
• Disability
• Health
• Age
• Diagnosis
• Beliefs
• Behaviour
• Sex
• Previous lack of mental capacity

Someone may lack mental capacity permanently or temporarily
Mental capacity may fluctuate over time

Question 6

The Act puts forward 5 key principles when making decisions and actions on behalf of others:

Answer 6

1) The person must be assumed to have capacity to make a particular decision unless established otherwise
2) The person must not be assumed to be unable to make the decision unless all practical steps have been taken to help them make the decision without success
3) A person must not be treated as unable to make a decision merely because they make an unwise decision
4) Any act or decision made on behalf of someone who lacks mental capacity under the Act must be done so in their best interests
5) Before any act or decision is made, consideration must be given for whether the purpose it is needed for can be achieved in another way which is less restrictive on the persons rights and freedoms

Question 7

Unpacking the 5 key principles :

What is best interests?

Answer 7

• When someone is found to lack capacity decisions must be made on their behalf, in their ‘best interests’ –> decision makers must consider the ‘best course of action’
• There must be a definite need to make the decision in question at that time
• What about life-sustaining treatment? What if the person is unconscious?

Question 8

Mental Capacity Act best interest checklist:

Answer 8

• Consider all circumstances, make sure age/appearance/behaviour etc not influencing
• Consider delaying decision until person regains capacity
  Involve person as much as possible in decision making
• Do not be motivated to bring about person’s death
• Consider past and present wishes and feelings, and any advance statement/decision
• Consider beliefs and values
  Take into account views of family/carers/IMCA
• Use least restrictive option

Question 9

What is Deprivation of Liberty Safeguards (DoLS)?

Answer 9

• Amendment to the MCA 2005
• Only concerns patients in hospital or care homes
• For those assessed as lacking mental capacity, DoLS protects them if care givers determine that they must deprive them of their liberty in order to keep them safe (i.e. in their best interests)
• DoLS is a process whereby these arrangements are carefully checked to determine that they are necessary and in the patients best interests
  The application by care givers can be challenges under DoLS and the patient has someone appointed with legal powers to represent them

Question 10

Advance care planning: what may a voluntary conversation between a patient and health care professional involve;

Answer 10

• Future decisions and priorities if mental capacity affected in future
• Concerns patient beliefs, treatment goals, wishes, values to be taken into account
• Covers patient understanding of their condition(s) and its time course
• Informs best interest decision making
• Plan is recorded and communicated with relevant people/organisations
• Can include options relating to Lasting Power of Attorney, Advance Decisions/Statements

Must be documented, shared (with permission) and regularly reviewed

Question 11

What are Independent mental capacity advocates (IMCA)?

Answer 11

There to provide safeguards for those lacking mental capacity without family support
IMCA has access to medical/social records of the person affected and can represent them at best interest meetings
In certain situations, an IMCA must be involved

Question 12

Lasting Power of Attorney in mental health:

Answer 12

• Can relate to financial, health and general welfare.
• The person affected nominates a trusted family member/friend to make decisions for them in future when they may lack mental capacity.
• The person(s) must be registered with the Public Guardian

Question 13

Advance Decisions:

Answer 13

• Enables those aged 18+ with mental capacity to refuse specified medical treatment in the future when they may lack mental capacity to refuse it
• Health professionals should do all in their power to find out whether patients have advance decisions in place, and if they are still valid in the circumstances
• Advance decisions can be over-ridden if there is evidence the person did or would have changed their mind
• Cannot be used to demand treatment, and not for general decision making

Question 14

Advance Statements:

Answer 14

• Like advance decisions, but not legally binding
• Can be used for general decisions like washing and eating
• Must still be respected

Question 15

Mental Health Act 1983 or Mental Capacity Act 2005?

Answer 15

• The decision on which to use should be guided by the individual patient and whether they are lacking mental capacity to make particular decisions at the particular time
• Those with mental illness are not assumed to lack mental capacity
• The MCA does allow for restraint proportional to the level of risk if a person lacks mental capacity relating to the restraint
• Those with severe mental illness under the MHA who have capacity but refuse treatment for their mental health should be treated under the MHA
• If someone is under the MHA but lacks capacity, treat with MCA principles
• Physical illnesses are not covered under the MHA, use the MCA if applicable
• Advance decisions can be over-ridden by the MHA, DoLS does not apply if in hospital under MHA

Question 16

Implementing the MCA in practice:

Answer 16

• Recent NICE guidance (NG108) has been designed to support health care professionals to help patients make their own decisions, or to help them make best interest decisions if someone lacks capacity. It is a best practice guide to implementing the MCA 2005.
• The British Medical Association has produced a mental capacity toolkit/guidance to support professionals when implementing the MCA in practice.
• The Mental Capacity Act Code of Practice 2007 is a guide to interpreting and implementing the MCA principles.

Question 17

Covert administration – general principles:

Answer 17

Covert administration of medication is a last resort

It can only be used when a patient refuses to take their medication and does not have mental capacity to understand this decision

The medicine(s) involved in covert administration must be considered essential for health and wellbeing of that person or others

Medicines should be administered in the least restrictive way if covert administration considered

Patient must be supported to make their own decision as much as possible

Question 18

Covert administration –

What are the consequences if outside the law?

Answer 18

• Nurse removed after routinely hidden medicines in jelly babies, jam sandwiches and custard without consent or authority
• Nurse jailed and removed from register after hiding tablet in marsh mellow and forcing patient to swallow it
• Nurse jailed and struck off for ordering support worker to covertly administer sedative in residents tea because she would not go to sleep
• Nurse administered medicine covertly without a care plan – struck off
• Woman jailed after putting crushed nitrazepam in partners bedtime cocoa to prevent his amorous advances