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Read the article below, complete the questions on the next page and you will receive a certificate for 1 hours verifiable CPD for free in the next 10 working days.
The Mental Capacity Act 2005 came into force during 2007 and is designed to protect and restore power to those vulnerable people who lack capacity.
Applies to everyone working in health and social care who is involved in the care, treatment and support of people aged 16 and over who live in England and Wales; who are unable to make all or some decisions for themselves. It is estimated that as many as 6 million people provide either paid or unpaid care or support to people lacking capacity.
The MCA also introduced new roles, bodies and powers in support:
People may lack capacity due to:
There are 5 principles of the Mental Capacity Act:
Stage 1. Is there an impairment of, or disturbance in the functioning of a person’s mind or brain?
Stage 2. Is the impairment or disturbance sufficient that the person lacks the capacity to decide?
The MCA says that a person is unable to make their own decision if they cannot do one or more of the following four things:
Anyone caring for or supporting a person who may lack capacity could be involved in assessing capacity but they must follow the two-stage test.
Professionals are subject to higher standards in terms of record keeping and a formal record will be required to be kept, for example in the patient’s clinical notes if a doctor or a healthcare professional is proposing treatment for someone who lacks capacity, ensure that all the details are fully recorded.
Independent Mental Capacity Advocate – is a person who is assigned to support and represent people who lack capacity, Clinicians do not have to adhere to their decisions but must take them into account as part of the decision-making process.
Lasting Power of Attorney – A person can appoint a named person with the authority to make decisions on their behalf if they lost capacity, you will need to see the legal document before allowing them to make decisions on behalf of the patient – the document can apply to property and affairs, personal welfare, health care or social affairs so please ensure that it covers Health care.
Advanced Decisions – Can be drawn up by anybody to specify treatments they would not want if they lost capacity, they must be drawn up when person still had capacity and are specific enough to cover the person’s current predicament they must be respected. They can be reversed if the person regains capacity and can be made verbally.
Court of Protection – Adjudicates on the following for people who lack capacity.
Use of Restraint – Must only be used if the patient is going to harm themselves or you.
Relationship to Mental Health Act – Mental Health Act is only relevant when treating a mental disorder when the patients are detained under the Mental Health Act. Incapacity should not be assumed in those with mental illness.
CONSENT IN CHILDREN UNDER THE AGE OF 18 PARENTAL CONSENT
Mothers and married fathers have automatic parental responsibility for their child however grandparents or unmarried fathers do not have automatic parental consent rights
Unmarried fathers can acquire parental responsibility in three ways:
Parental responsibility can also be acquired through: a residence order directing the child to live with father; being appointed as the child’s guardian; marriage to the child’s mother; adoption of the child.
Gillick competency and Fraser guidelines refer to a legal case which looked specifically at whether doctors should be able to give contraceptive advice or treatment to under 16-year-olds without parental consent. But since then, they have been more widely used to help assess whether a child has the maturity to make their own decisions and to understand the implications of those decisions.
In 1982 Mrs Victoria Gillick took her local health authority (West Norfolk and Wisbech Area Health Authority) and the Department of Health and Social Security to court to stop doctors from giving contraceptive advice or treatment to under 16-year-olds without parental consent.
The case went to the High Court in 1984 where Mr Justice Woolf dismissed Mrs Gillick’s claims. The Court of Appeal reversed this decision, but in 1985 it went to the House of Lords and the Law Lords (Lord Scarman, Lord Fraser and Lord Bridge) ruled in favour of the original judgment delivered by Mr Justice Woolf:
“…whether or not a child is capable of giving the necessary consent will depend on the child’s maturity and understanding and the nature of the consent required. The child must be capable of making a reasonable assessment of the advantages and disadvantages of the treatment proposed, so the consent, if given, can be properly and fairly described as true consent.” (Gillick v West Norfolk, 1984)
How are the Fraser Guidelines applied?
The Fraser guidelines refer to the guidelines set out by Lord Fraser in his judgment of the Gillick case in the House of Lords (1985), which apply specifically to contraceptive advice. Lord Fraser stated that a doctor could proceed to give advice and treatment:
“provided he is satisfied in the following criteria:
How is Gillick competency assessed?
Lord Scarman’s comments in his judgment of the Gillick case in the House of Lords (Gillick v West Norfolk, 1985) are often referred to as the test of “Gillick competency”:
“…it is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved.”
He also commented more generally on parents’ versus children’s rights:
“parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision.”
There is no ascribed age to the Gillick competence, and has been used in cases as young as aged 12, however the dentist must in all cases try to persuade the child to allow their parents to be consulted, unless the child has refused or where there is a risk of child abuse. The adult needs to be satisfied that the young person understands implications of the help they are seeking.
Rights of children:
"Cavity are always very helpful in helping me find a nurse to cover, great service!"
Leanne, Southwood Dental
If you need a dental DBS check (previously known as a CRB check) then Cavity can help you! One of our Cavity representatives can visit your practice at a suitable time to complete all the relevant paperwork.
The CQC state that all clinical staff working within a dental practice will need to obtain an enhanced Disclosure Barring Service (DBS) check. Cavity are now a DBS umbrella company and are able to carry out DBS checks for individuals, groups and practices.
One of Cavitys’ Managers will visit your practice at a time convenient to you, to finalise the relevant documents. Once this has been done, the completed form will be sent off and you will then receive your DBS certificate directly to you in the post. We can carry out a DBS for the whole of your clinical team or individual staff members.