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Subject: Mental Capacity Act

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The Mental Capacity Act

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:

  • Attorneys appointed under Lasting Powers of Attorney
  • New Court of Protection, and court-appointed deputies
  • Office of the Public Guardian
  • Independent mental capacity advocates (IMCAs)
  • Advance decisions to refuse treatment
  • Criminal offence of ill-treatment or neglect.

People may lack capacity due to:

  • A stroke or brain injury
  • A mental health problem
  • Dementia
  • A learning disability
  • Confusion, drowsiness or unconsciousness because of an illness or the treatment for it
  • Substance misuse.

There are 5 principles of the Mental Capacity Act:

  1. Presumption of Capacity – Every adult has the right to make their own decisions and must be assumed to have capacity to do so unless it is proved otherwise. This means that you cannot assume that someone cannot decide for themselves just because they have a medical condition or disability.
  2. Individuals Being Supported to make Their Own Decisions – A person must be given all practicable help before anyone treats them as not being able to make their own decisions. This means you should make every effort to encourage and support people to make the decision for themselves. If lack of capacity is established, it is still important that you involve the person as far as possible in making decisions.
  3. Unwise Decisions – People have the right to make what others might regard as an unwise or eccentric decision. Everyone has their own values, beliefs and preferences which may not be the same as those of other people. You cannot treat them as lacking capacity for that reason.
  4. Best Interests – If a person has been assessed as lacking capacity then any action taken, or any decision made for, or on behalf of that person, must be made in his or her best interests.
  5. Less Restrictive Option – Someone deciding or acting on behalf of a person who lacks capacity must consider whether it is possible to decide or act in a way that would interfere less with the person’s rights and freedoms of action, or whether there is a need to decide or act at all. Any intervention should be proportional to the circumstances of the case.

Helping People with Decision Making

  • Does the individual have all the relevant information needed to make the decision?
  • If there is a choice of options, has information been provided on the alternatives?
  • Have the communication needs of the individual been considered? The information needs to be presented in a way that is easier for them to understand.
  • Have different communication methods been explored, including obtaining professional or carer support?
  • Consider the risks and benefits, including describing the consequences of deciding, and making no decision.

The two-stage Functional Test

Stage 1. Is there an impairment of, or disturbance in the functioning of a person’s mind or brain?

If so,

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:

  1. Understand information given to them
  2. Retain that information long enough to be able to make the decision
  3. Weigh up the information available to make the decision
  4. Communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.

Who Can Assess Capacity?

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.

Record Keeping

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.

What is ‘best interests’?

  • Do not discriminate. Do not make assumptions about someone’s best interests merely based on the person’s age or appearance, condition or any aspect of their behavior
  • Consider all relevant circumstances
  • If faced with a particularly difficult or contentious decision, it is recommended that practitioners adopt a ‘balance sheet’ approach
  • Will the person regain capacity? If so, can the decision wait?
  • Involve the individual as fully as possible
  • Consider the individual’s past and present wishes and feelings, and any beliefs and values likely to have a bearing on the decision
  • Consult as far and as widely as possible.

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:

  1. If he consents to be named as the child’s father on registration of the child’s birth. This does not operate retrospectively.
  2. By a formal “parental responsibility agreement” signed by the mother and father witnessed by court and registered.
  3. The court orders parental responsibility to him consistent with the interests of the child.

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 Competence/Fraser Guidelines

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:

  1. That the girl (although under the age of 16 years of age) will understand his advice.
  2. That he cannot persuade her to inform her parents or to allow him to inform the parents that she is seeking contraceptive advice.
  3. That she is very likely to continue having sexual intercourse with or without contraceptive treatment.
  4. That unless she receives contraceptive advice or treatment her physical or mental health or both are likely to suffer.
  5. That her best interests require him to give her contraceptive advice, treatment or both without the parental consent.” (Gillick v West Norfolk, 1985)

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:

  1. Rights to welfare: entitles children to an education, health care and protection from abuse
  2. Rights to participation in decision-making: enables children to have a direct say in decisions being made about them or on their behalf by courts, social services and child protection conferences
  3. Rights to autonomy: entitles children to autonomous decision-making or to take legal action on their own behalf via an advocate

Checklist

  1. Have you made sure that the patient has all the information they need to decide about treatment?
  2. Is the information presented in a way that is easier for the patient to understand e.g. by using simple language or visual aids?
  3. Have you recorded in the clinical notes the processes you went through in determining capacity?
  4. If the patient lacks capacity, have you recorded in the notes the basis on which a decision to treat, or not treat, was in the patient’s best interests and the steps taken to establish that?
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Please complete the questions below.

1. Who is the act designed to protect?
2. Does every adult have the right to make their own decision?
3. Which one of these people cannot be classed as lacking capacity?
4. How many principles are there in the Mental Capacity Act?
5. Who can act as the Independent Mental Capacity Advocate?
6. Who can give parental consent?
7. A lasting power of attorney can be appointed at any time?
8. How can we ensure the patient has the capacity to consent to their treatment?
9. If somebody is proven to lack capacity can treatment be given?

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