Policy for Advance Statements and Advance Decisions
DOCUMENT CONTROL:
Version:
Ratified by:
Date ratified:
Name of originator/author:
Name of responsible
committee/individual:
Date issued:
Review date:
Target Audience
3
Mental Health Legislation Committee
07 May 2014
Social Work Consultant
Mental Health Legislation Committee
04 July 2014
May 2017
All clinical staff
Page 1 of 24
CONTENTS
SECTION
1.
INTRODUCTION
2.
PURPOSE
2.1 Definitions
3.
SCOPE
4.
RESPONSIBILITIES, ACOUNTABILITIES AND DUTIES
4.1
Chief Executive
4.2
Chief Operating Officer
4.3
Managers’ Responsibilities
4.4
Individual Responsibility
5.
PROCEDURE/IMPLEMENTATION
A
Advance Statement
B
Advance Decisions
5.1
Service User Detained under MHA 83
5.2
Making an Advance Decision
5.3
Formats of Advance Decision
5.4
The Response to an Existing Advance Decision
5.5
Withdrawal of Advance Decision
5.6
Review/Updating of Advance Decision
5.7
Invalid or Inappropriate Advance Decision
5.8
Advance Decision - Doubt or Disagreement
5.9
Storage of Advance Decision
6.
TRAINING IMPLICATIONS
7.
MONITORING ARRANGEMENTS
8.
EQUALITY IMPACT ASSESSMENT SCREENING
8.1
8.2
Privacy, Dignity and respect
Mental Capacity Act
9.
LINKS TO ANY ASSOCIATED DOCUMENTS
10.
REFERENCES
11.
APPENDICES
Appendix 1 Basic/Essential Care
Appendix 2 Form MCA 1 Record of a Mental Capacity Assessment
Appendix 3 Advance Statement
Appendix 4 Advance Decision
Page 2 of 24
1.
INTRODUCTION
The Mental Capacity Act (MCA) 2005, came into force in October 2007 and for
the first time provides a legal framework for acting and making decisions on
behalf of vulnerable people who lack the mental capacity to make specific
decisions for themselves. The MCA provides a statutory framework to empower
and protect such individuals. It makes it clear who can take decisions, in which
situations and how they should go about this. It also enables people to plan
ahead for a time when they may lose capacity.
Rotherham Doncaster and South Humber NHS Foundation Trust acknowledge
that it is the right of every competent adult service user to influence their care and
treatment and that Advance Statements and Advance Decisions provide an
opportunity to support autonomy, shared decision making and the recovery
process. In striving to achieve a more balanced partnership between service
users and health & social care professionals the Trust has developed this “Policy
for Advance Statements and Advance Decisions”. Its aim is to assist and guide
those service users who wish to plan for their future care and provide clear
guidance to those mental health professionals responsible for delivering such
care.
Making decisions in advance might help to ensure that the care a person receives
is the care that s/he would want in certain circumstances. This policy provides a
framework for the effective support of this process and the Trust actively
encourages all service users to plan ahead.
An Advance Statement is an expression of wishes by a service user setting out
how they would prefer to be cared for/treated if they lose capacity to make
decisions for themselves. Such expressions of wishes/preferences must be taken
into account when considering an incapacitated service user's best interests, but
are not legally binding.
An Advance Decision is a refusal to accept certain treatments in the future if
specified circumstances arise once the person has lost capacity. Advance
Decisions are governed by the MCA 2005 and, if valid and applicable to the
circumstances arising, are legally binding.
This policy should be read in conjunction with the MCA 2005 and the MCA Code
of Practice (2007). It is not a substitute for the MCA and the Code of Practice, to
which all professionals must adhere.
This policy assumes a knowledge and understanding of the MCA 2005 Policy and
should be read in conjunction with it.
Other policies to be read in conjunction with this policy are:
•
•
•
Consent to care and treatment policy
Mental Health Act 1983
Mental Capacity Act Policy
Professionals must act with due care and attention and may be legally liable
if they disregard a valid and applicable Advance Decision.
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2.
PURPOSE
The purpose of this policy is to ensure that wherever possible, patients in receipt
of care from Rotherham Doncaster and South Humber NHS Foundation Trust
(RDaSH) will have their expressed wishes (Advance statement) and legal rights
that are contained in an Advance Decision respected and upheld where they are
valid and applicable.
The Trust is committed to ensuring that all people within the Trust who are using
our services are treated with dignity and respect and individuals and their
families/carers receive appropriate care and support.
2.1
Definitions
The definitions are set out here to ensure clarity, as there are a number of terms
to describe Advance Statements that are often used interchangeably, sometimes
misleadingly.
Note: the term Professional within the context of this policy relates to all
Health/Allied Professionals.
Advance Statements – is a general statement of a person’s wishes and views.
People who understand the implications of their choices can state in advance
how they wish to be treated if they suffer loss of mental capacity. It can reflect
their religious beliefs or other beliefs that they have and allows the person to state
how they would like to be treated should they not be able to communicate their
wishes in the future. Advance Statements can be used to nominate a person to
be consulted with at a time a decision has to be made although at present their
view is not legally binding. However, if the nominated person has also been
granted Lasting Power of Attorney to make personal welfare decisions, the
decision of the person with Lasting Power of Attorney will be binding. Advance
Statements can also be used to inform health professionals of how the person
would prefer to be treated medically.
An Advance Statement does not bind doctors and professional staff to a particular
course of action if it conflicts with their professional judgement or if the treatment
preferences described are not considered appropriate or necessary (e.g. taking
into account available resources). It is important to consider an Advance
Statement when planning care and treatment.
Advance Decision – Advance Decisions are governed by the MCA 2005 and
relate to refusals of specified treatment if specific circumstances arise in the
future at a time when the person no longer has mental capacity. Advance
Decisions are sometimes also known as ‘advance directive’, ‘advance refusal’ or
‘living will’. However, the statutory term is “Advance Decision” and that is the term
that will therefore be used in the remainder of this Policy. A valid Advance
Decision which is applicable to the circumstances which arise is legally binding in
the same way as a contemporaneous refusal by a person with capacity.
Professionals may be legally liable if they treat a patient in the face of a valid and
applicable Advance Decision.
Page 4 of 24
Advance Statements and Advance Decisions to refuse medical treatment
cannot be used when the service user has the capacity to consent to, or
refuse, the proposed treatment.
3.
SCOPE
Rotherham Doncaster and South Humber NHS Foundation Trust, support the use
of Advance Statements and Advance Decisions to enhance communication
between service users, carers and staff. This policy applies to all service users
who have made an Advance Statement or Advance Decision. It also applies to all
staff to make them self-aware of the presence of an Advance Statement or
Advance Decision when a person attends for care, and to consider the statement
as stated within this policy below.
This policy applies to everyone in a paid, professional or voluntary capacity who
is involved in the care, treatment or support of people over 16 years under the
umbrella of Rotherham Doncaster and South Humber NHS Foundation Trust.
This includes staff employed by the Trust, social care and health staff who are
either seconded to the Trust or work in partnership with the Trust and volunteers
who are working within the Trust.
4.
RESPONSIBILITIES, ACCOUNTABILITIES AND DUTIES
4.1
Chief Executive
The Chief Executive is responsible for there being a structured approach to policy
development and management.
Responsibility for this policy is delegated to:
4.2
Service Director
The Service Directors for Mental Health and Children and Community are the
accountable Directors for this Policy.
4.3
Clinical Managers’ Responsibilities
It is the responsibility of all clinical managers to:
•
make a copy of this policy available to staff and to check staff have read it
and are in a position to incorporate this policy into their practice.
•
make sure staff receive sufficient training and support to undertake their
role.
4.4
Clinical Staff Responsibility
It is each individual’s responsibility to ensure they make themselves aware of this
policy and receive sufficient training and information about Advance Statements
and Advance Decisions to undertake their role.
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5.
PROCEDURE/IMPLEMENTATION
A.
Advance Statement
A person may make a general Advance Statement reflecting their wishes and
feelings about how they would like to be treated in the future if they lose capacity.
Advance Statements about care and treatment about what a person would like
are not binding in law i.e. those staff members responsible for the service user do
not have to follow them, but they should be considered. Staff must be able to
demonstrate that the service user’s wishes have been taken into account as part
of considering what is in their best interests if they lose capacity. This includes
taking into account any wishes set out in an Advance Statement. If a service
users wishes are not followed clear reasons for this must be documented in the
service user’s records.
Examples of issues which may be included in an Advance Statement:
An appointment of representative: a service user may name another person to be
consulted about health care decisions when the service user is incapable of
deciding for him/herself. That named person should then be consulted as part of
consideration of what is in the service uses best interest once they lose capacity.
However, the views of the named person will not be legally binding unless that
person has been formally given Lasting Power of Attorney to make personal
welfare decisions on a service user's behalf or is a Court Appointed Deputy under
the provisions of the MCA 2005.
A statement about particular treatment: the person would like to receive should
they become unwell. Although not legally binding on doctors/other staff, this
should be taken into account when deciding treatment.
A statement of general beliefs: on various aspects of life, which an individual
values. This statement contains no specific request or refusal but attempts to
paint a picture of the individual as an aid to healthcare professionals in deciding
what the service user would want.
To make an Advance Statement:
•
the service user must have capacity:
•
the Advance Statement should preferably be in writing, although a service
users verbally expressed wishes should also be taken into account when
considering what is in their best interests.
•
staff should facilitate the recording of a service user’s Advance Statement in
writing, if the service user has the capacity, but is unable to write.
•
there is no set format for an Advance Statement but an example is included
in Appendix 3. [The Wellness Recovery Action Plan (WRAP), adopted by
many service users and carers across RDaSH as the preferred model to
support self-management and recovery, includes a section on Crisis
Planning which is to all intents and purposes the same as an Advance
Statement].
Page 6 of 24
•
the content of an Advance Statement should be the service users’ own
views and wishes, and should not be unduly influenced by any other person.
•
the Advance Statement must be clear in meaning. If the statement is unclear
or ambiguous it must be discussed, and clarified with the service user while
they still have capacity.
•
an Advance Statement can name or nominate another person, who should
be consulted at the time a decision by clinical staff has to be made.
•
an Advance Statement can be made in conjunction with the care coordination process under CPA, and a copy should be kept within the care
record. It is important to ensure that all service users are given
information about Advance Statements during their assessment and/or
CPA review.
•
service users can withdraw or alter their Advance Statement at any time
while they have capacity. It is the service user’s responsibility to notify the
Trust of any changes made to their Advance statements.
B.
Advance Decision
An Advance Decision to refuse treatment can only be made by an individual aged
18 and over with capacity to make Advance care and treatment Decisions.
In the event of them losing capacity in the future, a properly made Advance
Decision is as valid as a contemporaneous Decision (that is, one made at that
time). There are no set formats for Advanced Decisions; they can be written,
witnessed oral statements or written statements, printed cards or notes of a
discussion recorded in the clinical record. All versions are acceptable but the
important element is that the Advance Decision is clear and unambiguous. An
important exception to this is the refusal of life sustaining treatment which
must be in writing (and must comply with a number of other requirements
set out at section 25 (5) (a) (b) and section 25 (6) (a) (b) (c) (d) of the MCA
2005 in order to be legally binding.
An Advance Decision can apply to care and treatment in hospital, at home, in a
nursing home or in a hospice.
A valid Advance Decision refusing treatments, which is applicable to the
circumstances’ arising, is legally binding and must therefore be followed. The
Advance Decision may be written in medical language or in lay terms, and must
be clear and unambiguous in order to be legally enforceable. The health
professional treating the patient must be assured of the following to ensure that
the Advance Decision is valid and applicable.
•
The person is competent at the time the Decision was made.
Professionals must be satisfied that the Advance Decision was made whilst
the person was capable, not affected by illness or medication. To make a
valid Advance Decision the person must be judged to be ‘competent’ or to
‘have necessary capacity’. (for further details re: assessing capacity,
see appendix 1)
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•
•
•
Is free from the undue influence of others. Professionals must be
satisfied that the Advance Decision was not based on false information or
pressure from other people.
Is sufficiently informed. Professionals must assure themselves that the
person understood the implications of the decision they made at the time
and also that the person has acted in a way consistent with the Advanced
Decision
Intends the refusal to apply to the circumstances that subsequently
arise. The person must have envisaged the type of situation the decision
applies to. The Advance Decision can be deemed invalid if it does not apply
to a specific treatment or the stated circumstances. For example, a new antipsychotic medication becoming available after an Advance Decision is
made. If it is not specified, the Advance Decision could be taken to mean
that a refusal of medication might not apply to newly available medication.
An Advance Decision is not valid when:
•
•
•
•
•
the service user has withdrawn the Advance Decision, at a time when he or
she has capacity to do so (NB. withdrawal of an Advance Decision does not
have to be in writing)
the service user has under a Lasting Power of Attorney, created after the
Advance Decision was made, conferred authority on a Donee (s) to give or
refuse consent to the treatment to which the Advance Decision relates; or
the patient has done or said anything which is inconsistent with the contents
of the Advance Decision and has not reaffirmed their Advance Decision
subsequently;
an Advanced Decision refusing life sustaining treatment will not be valid
unless the Advanced Decision is in writing, signed by the patient, witnessed
by someone other than the patient and includes a statement by the patient
to the effect that the decision is to apply to life sustaining treatment even if
his or her life is at risk;
an Advanced Decision refusing ‘ basic care’ (see definition Appendix 1) is
also invalid. An Advance Decision may not refuse, for example, warmth,
shelter and hygiene measures to maintain body cleanliness. This includes
the offer of oral food and hydration, but not artificial nutrition and hydration.
Such care may be provided in the best interests of a person lacking capacity
to consent to it.
An Advance Decision will not be applicable if:
•
the patient is capable of making the decision at the time the treatment is
proposed;
•
it is unclear what treatment is being refused;
•
there are reasonable grounds for believing that circumstances now exist
which the patient did not anticipate at the time of writing the Advance
Decision, which would have affected the decision, such as advances in
treatment or changes in patients religious beliefs.
The Advance Decision may be written in medical language or in lay terms, and
must be clear and unambiguous in order to be legally enforceable. The health
professional treating the patient must be assured of the following to ensure that
the Advance Decision is valid and applicable.
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5.1
Service Users detained under the Mental Health Act (MHA) 1983
The MHA 1983 takes precedence and prevails over Advance Decisions
when it comes to treatment for mental disorder. This means that where a
service user is subject to compulsory detention and treatment under the MHA
1983 an Advance Decision is not legally binding on decisions relating to the
service user’s mental disorder. However, the Responsible Clinician should take
an Advance Decision into consideration when deciding upon a treatment plan and
where it is decided to go against the service users preferred wishes the reason is
to be recorded in the patient’s clinical records.
Decisions made by detained patients will still be legally binding insofar as they
relate to treatment which is not connected with their mental disorder. For
example, a decision refusing treatment for a service user’s physical health, which
is not covered by the MHA 1983, must be adhered to if it is valid and applicable to
the circumstances.
Treatment for a patient’s mental disorder under the MHA 1983 can include
treating the symptoms or consequences of the mental disorder, as well as the
treatment/s which are a necessary pre-requisite to treatment for the service users
mental disorder. For example, feeding a detained patient with anorexia nervosa
by nasogastric tube would be likely to come under compulsory treatment under
the MHA 1983 because the treatment (feeding) is aimed at treating a symptom of
the mental disorder.
Note: An adult incapacitated patient who is not detained under the
MHA1983 could be given ECT under s.5 and s.6 of the MCA 2005. However,
such treatments cannot be provided if the patient has made a valid and
applicable Advance Decision refusing ECT or if a Donee or a Deputy have
refused such treatments on the patient's behalf (see the provisions of
section 58 A of the MHA 1983).
5.2
Making an Advance Decision
Advance Decisions are a means to allow service users to have greater influence
on their care and treatment. They embody the spirit of the Human Rights Act in
Article 3 - protection from inhuman and degrading treatment, Article 8 - respect
for privacy and private life, and Article 10 - freedom of expression.
At the time of making an Advance Decision:
The service user must:
•
have the capacity to do so (The process by which capacity is assessed
must be documented-MCA 1 Form see appendix 2). However, service
users must be presumed to have had capacity at the time of making the
Advance Decision unless there is evidence to the contrary.
•
be aged 18 or over
The Advance Decision must:
•
set out clearly the treatment which is not to be carried out or continued
•
set out any circumstances which are applicable to the decision
Page 9 of 24
Professionals consulted at the drafting stage must take reasonable steps to
ensure that service user’s decisions are not made under duress. If professionals,
when consulted, suspect there may be duress or undue influence from others,
they must take steps to bring this to the attention of the appropriate Manager.
Decisions may evolve in stages over time and with discussion. It is not advisable
to make complicated decisions at one time without further review.
It is useful for the service user to consult with carers and other health
professionals when making Advance Decisions to ensure that their decisions are
based on realistic views. Written statements should use clear and unambiguous
language. Therefore, professionals must consider the following if asked for
assistance with an Advance Decision:
•
•
•
•
•
Does the service user have sufficient knowledge of the condition?
Does the service user have sufficient knowledge of possible treatment
options if there is a known illness?
Is it clear that the service user is reflecting their own view and is not being
pressured by other people?
Professionals need to ensure that service users are aware of the risks of
Advance Decisions as well as the benefits.
Professionals need to be aware that any doubt or ambiguity about
intention or capacity at the time of drafting the decision could lead to it
becoming invalid. This is particularly important where the decision involves
advance of care.
Professionals must document in the clinical records all involvement and
discussions about Advance Decisions.
It is worth noting that some forms of treatment contained in Advance
Decisions should also be reflected in CPA documentation such as the CPA
crisis plan. Care must be taken to ensure these are not contradictory.
Where an Advance Decision is received by a professional in the form of an oral
statement, this be should recorded and the service user should be asked to sign
this document in the presence of a witness (the witness should not be the staff
member who records the Advance Decision).
Information should be provided in an accessible format to assist in making
informed choices.
Advance Decisions should be understood as an aid to, rather than a substitute
for, open dialogue between service users and health professionals. An open
attitude and a willingness to discuss the advantages and disadvantages of certain
options can do much to establish trust and mutual understanding.
5.3
Format of Advance Decisions
There is no nationally agreed or set format for an Advance Decision. It is
considered that having a set format may undervalue those alternative methods for
expressing preferences, including an oral statement. There are organisations
that provide Advance Decision formats for use by service users such as the
Alzheimer’s Society and many NHS Trusts. There is a pro forma for both
Page 10 of 24
Advance Statements and Advance Decisions provided for service users of this
Trust to use if they wish (see Appendix 3). It must be stressed that a person
may use whatever format they wish, including a verbal request. Service
users may prefer not to make a legal document, but will talk to a professional
about their wishes and have these reflected in their record, For example: their
medical notes and/or CPA documentation. In such cases, service users should be
encouraged to check the notes made about them to ensure that they agree with
what is written and sign them.
The individual and a witness should sign the Advance Decision (although signing
and witnessing the Advance Decision is not necessary to make the refusal legally
binding unless it is intended to apply to life sustaining treatment (see point 5.3 on
life sustaining treatment below). The witness should only witness the maker’s
signature and attest that it appears that the maker intends the signature to give
effect to the Advance Decision. The role of the witness does not involve
certifying the capacity of the person making the Advance Decision. In some
situations, a professional such as a doctor may be asked to act as witness;
however an Advance Decision does not have to be signed by a doctor to make it
valid. In drawing up an Advance Decision it is recommended that the minimum
information below should be included:
•
•
•
•
•
•
•
•
•
Full name
Address
Name and address of General Practitioner
Whether advice was sought from health professionals
A statement that the Decision is intended to have effect if the maker lacks
capacity to make treatment Decisions
A clear statement of the decision, specifying the treatment to be refused and
the circumstances in which the decision will apply or which will trigger a
particular course of action
Signature of the person the Advance Decision refers to
Date drafted and date reviewed
Witness signature and relationship with individual.
Life sustaining treatment - Life-sustaining treatment is defined as treatment
which a person providing health care regards as necessary to sustain life.
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 life sustaining, whereas in
other circumstances antibiotics are used to treat non-life-threatening conditions.
The important factor here is that the treatment is necessary to sustain life at that
time. It is for the doctor to assess whether a treatment is life-sustaining in each
particular situation. If the Advance Decision includes an Advance refusal of lifesustaining treatment, a requirement within the MCA 2005 is that it must be in
writing and should state that the Advance Decision is to apply ‘even if life is at
risk’. It must be signed by the service user (or by another, on behalf of the
service user and in the service user’s presence) and when the Advance Decision
is signed it must be witnessed and then countersigned by the witness.
A copy of the up to date Advance Decision must be retained securely by the
Trust.
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5.4
The Response to an existing Advance Decision
Healthcare professionals will be protected from liability for failing to provide
treatment if they ‘reasonably believe’ that a valid and applicable Advance
Decision to refuse treatment exists.
Therefore, staff should try to ascertain if a new service user has an Advance
Decision. Where the existence of an Advance Decision is/becomes known then
the following steps must be taken:
•
•
•
•
Consider any evidence that at the time of making the Advance Decision the
person lacked capacity, and immediately advise the service user's
GP/consultant of concerns and of the available evidence;
Ensure all staff, in particular medical staff, are made aware of the Advance
Decision’s existence and that an appropriate note is made and retained in a
prominent position in the service user's clinical file;
Check the validity of the Advance Decision with the service user or where this
is not possible consult the individuals identified in the statement i.e. named
persons, witnesses. However a statement or Advance Decision is not invalid
just because it has not been possible to check with the individuals identified;
and
Declare any conscientious objections to carrying out the instructions of the
Advance Decision and arrange for an alternative worker as necessary.
Emergency treatment must not be delayed in order to look for the Advance
Decision, if there is no clear indication that one exists. If doubt arises as to
the existence of an Advance Decision the matter may be referred to the courts for
a decision. Professionals may be legally liable if they disregard the terms of an
Advance Decision, or if it is known that the Advance Decision exists and is valid
and applicable to the treatment proposed. However under the MCA 2005, if there
are any significant doubts about the validity of an Advanced Decision then the
professional will be obliged to treat the person under best interests until
clarification is obtained.
5.5
Withdrawal of Advance Decisions
An Advance Decision may be withdrawn by the service user at any time once
they have capacity. The withdrawal of an Advance Decision does not need to be
in writing, including in the case of advance refusals of life sustaining treatment i.e. a verbal withdrawal will be sufficient.
5.6
Reviewing/Updating Advance Decisions
Service users who make an Advance Decision should be advised to regularly
review and update this. Advance Decisions made a long time ago before the
proposed treatments are not automatically invalid. However, if a long period of
time has elapsed since the Advance Decision was made, this may raise doubts
about the extent to which it remains valid and applicable.
Page 12 of 24
5.7
Invalid or Inapplicable Advance Decisions
If an Advance Decision is not valid or applicable to the current circumstances,
professionals must nevertheless consider the Advance Decision as part of their
assessment of the patient's best interests.
5.8
Advance Decision - Doubt or Disagreement
In the event that there is Doubt or Disagreement about the validity or applicability
of and Advance Decision all staff have a responsibility to discuss with their
professional lead (i.e. Social Work Consultant, Nurse Consultant, Clinical
Director) who will if appropriate refer to the relevant Medical Director or Service
Director. However, if the matter remains unclear, legal advice should be sought
with a possible view to seeking clarification as to the validity or applicability of the
Advance Decision from the Court of Protection.
5.9
Storage of an Advance Decision
The service user who has made the Advance Decision, independently, should
arrange for it to be drawn to the attention of the Trust’s staff. It is advisable that
several people, including the patient’s GP, have a copy of the Advance Decision
stored with them or are at least made aware of its provisions. A copy of the
Advance Decision will be filed at the front of the first section of the service users
medical notes.
If a patient who is receiving treatment in the community makes an Advance
Decision then they should arrange for their care co-ordinator to receive a copy.
This should ensure that the existence of the Advance Decision is brought to the
attention of Trust staff if the person is subsequently admitted. The care coordinator should also arrange for a copy of the Advance Decision to be placed in
the relevant medical records and to be noted on the electronic patient record.
6.
TRAINING IMPLICATIONS
As a Trust policy, all staff needs to be aware that advance decision and
statement forms part of the Mental Capacity Act training which is mandatory for
all clinical new starters to the Trust. Following this all qualified clinical staff are
require to undertake specific advance training which is identified in the advance
mandatory training programme.
The Training Needs Analysis (TNA) for this policy can be found in the Training
Needs Analysis document which is part of the Trust’s Mandatory Risk
Management Training Policy located under policy section of the Trust website.
Page 13 of 24
7.
MONITORING ARRANGEMENTS
Area for
monitoring
Training
How
Who by
Frequency
Reported to
Training
Records
Mental Health
Training
Coordinator
Annual
as part of
report on
MCA
training
Annual as
part of
audit of
MCA Policy
and CPA
Policy
Mental Health
Legislation Committee
Policy
Clinical
Implementation audit
Social Work
Consultant
Deputy
Director
Clinical
Assurance and
AHP Lead
8.
Mental Health
Legislation Committee
Performance and
Assurance Group
EQUALITY IMPACT ASSESSMENT SCREENING
The completed Equality Impact Assessment for this Policy has been published on the
Equality and Diversity webpage of the RDaSH website click here
8.1
Privacy, Dignity and Respect
The NHS Constitution states that all patients
should feel that their privacy and dignity are
respected while they are in hospital. High
Quality Care for All (2008), Lord Darzi’s
review of the NHS, identifies the need to
organise care around the individual, ‘not just
clinically but in terms of dignity and respect’.
Indicate how this will be met
There is no requirement for additional
consideration to be given with regard
to privacy, dignity or respect.
As a consequence the Trust is required to
articulate its intent to deliver care with privacy
and dignity that treats all service users with
respect. Therefore, all procedural documents
will be considered, if relevant, to reflect the
requirement to treat everyone with privacy,
dignity and respect, (when appropriate this
should also include how same sex
accommodation is provided).
Page 14 of 24
8.2
Mental Capacity Act
Central to any aspect of care delivered to
adults and young people aged 16 years or
over will be the consideration of the
individuals capacity to participate in the
decision making process. Consequently, no
intervention should be carried out without
either the individuals informed consent, or the
powers included in a legal framework, or by
order of the Court
Therefore, the Trust is required to make sure
that all staff working with individuals who use
our service are familiar with the provisions
within the Mental Capacity Act 2005. For this
reason all procedural documents will be
considered, if relevant to reflect the provisions
of the Mental Capacity Act 2005 to ensure that
the interests of an individual whose capacity is
in question can continue to make as many
decisions for themselves as possible.
9.
Indicate How This Will Be
Achieved
All individuals involved in the
implementation of this policy should
do so in accordance with the Guiding
Principles of the Mental Capacity Act
2005. (Section 1)
LINKS TO ANY ASSOCIATED DOCUMENTS
Policy for the Managing of Work Related Violence and Aggression
Consent to Care and Treatment Policy
ECT Policy
Care Programme Approach Policy
Mental Capacity Act Policy
Mental Health Act Policies
10.
REFERENCES
Mental Capacity Act 2005
Mental Capacity Act Code of Practice
Mental Health Act 1983 [as amended by the Mental Health Act 2007]
The Children’s Act 1989
Human Rights Act 1998
Care Standards Act 2000
Data Protection Act 1998
National Health Service and Community Care Act 1990
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APPENDIX 1
Basic/Essential Care
Basic/essential care means those procedures which are solely or primarily designed to keep an
individual comfortable. This includes warmth, shelter, pain relief, management of distressing
symptoms (such as breathlessness and vomiting) and hygienic measures such as management
of incontinence. The administration of medication or the performance of any procedure which is
solely or primarily designed to provide comfort to the patient or alleviate that patient’s pain,
symptoms or distress are facets of basic care.
In the face of a valid Advance Decision refusing all physical care interventions only those
measures essential for a patient’s comfort should be given. Therefore, appropriate food or drink
should be made available for (but not forced upon) all patients. Artificial nutrition and hydration
should not be given to a patient who has made a valid and applicable advance refusal of this
treatment. indicates
If the physical condition of the patient is starting to deteriorate, then legal advice should be
sought as a matter of urgency. Authorisation to obtain legal services should be obtained through
the Service Director. If there is doubt about the validity of an apparent refusal, life-sustaining
treatment and treatment to prevent a serious deterioration in the patient’s health can be
provided while a Decision is being sought from the Court.
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Appendix 2
Rotherham Doncaster and South Humber NHS Foundation Trust
FORM MCA1
Record of a Mental Capacity Assessment
Name Of Service User
Reference
number
Team
Name Of Assessing
Officer
Date assessment started
Please give the name and status of anyone who assisted with this assessment:
Name
Status
Contact Details
Details of the Decision to be made
STAGE 1 - DETERMINING IMPAIRMENT OR DISTURBANCE OF MIND OR BRAIN
Guidance: every adult should be assumed to have the capacity to make a Decision unless
it is proved that they lack capacity. An assumption about someone's capacity cannot be
made merely on the basis of a Service Users age or appearance, condition or aspect of
his or her behaviour.
Response
Comments/Actions taken
Yes No
Q1. Is there an impairment of, or
disturbance in the functioning of
the Service Users mind or brain?
(For example, symptoms of
alcohol or drug use, delirium,
concussion following head injury,
conditions associated with some
forms of mental illness,
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dementia, significant learning
disability, long term effects of
brain damage, confusion,
drowsiness or loss of
consciousness due to a physical
or medical condition)
If you have answered YES to Question 1, PROCEED TO STAGE 2
If you have answered NO to Question 1, there is no such impairment or disturbance and thus
THE SERVICE USER DOES NOT LACK CAPACITY within the meaning of the Mental Capacity
Act 2005. Sign/date this form, record the outcome within the Service User Carefirst records. Do
not proceed any further.
STAGE 2 - ASSESSMENT
Having determined impairment or disturbance (Stage 1) and given consideration to the
ease, location and timing; relevance of information communicated; the communication
method used; and others involvement, you now need to complete your assessment and
form your opinion as to whether the impairment or disturbance is sufficient that the
Service User lacks the capacity to make this particular Decision at this moment in time.
Response
Comments/ Actions taken
Yes No
Q2. Do you consider the Service
User able to understand the
information relevant to the
Decision and that this information
has been provided in a way that
the service user is most probably
able to understand?
Q3. Do you consider the Service
User able to retain the
information for long enough to
use it in order to make a choice
or an effective Decision?
Q4. Do you consider the Service
User able to use or weigh that
information as part of the process
of making the Decision?
Q5. Do you consider the Service
User able to communicate their
Decision?
If you have answered YES consistently to Q2 to Q5, the Service User is considered on the
balance of probability, to have the capacity to make this particular Decision at this time.
Sign/date this form and record the outcome within the Service User Carefirst records and Do not
proceed any further.
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If you have answered NO to any of the questions, proceed to Q6.
Q6. Overall, do you consider on
the balance of probability, that
the impairment or disturbance as
identified in STAGE 1, is
sufficient that the Service User
lacks the capacity to make this
particular Decision?
Signature
On the balance of probability, the Service User Lacks
Capacity to make this Decision at this particular time.
Sign and date this form and proceed to consider ‘Best
Interests’
Date
assessment
completed
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APPENDIX 3
ADVANCE STATEMENT
To my family, carers, care professionals and all other persons concerned, this is the Advance
Statement of:
Name: ……………………………………………………………………………….
Address: …………………………………………………………………………….
Date of Birth: ……………………………………………………………………….
As a result of my mental health needs the level of care provided to me may have to change.
This Advance Statement is to be used to assist in my care and treatment.
Signed: ……………………………………. Dated: ………………………………
Witness
I confirm that the maker of this Advance Statements signed it in my presence and made it clear
to me that he / she understood what it meant, and it was made of their own free will.
Witnessed by:
Signature: ………………………………………………………………………….
Name: ………………………………………………………………………………
Address: ……………………………………………………………………………
……………………………………………………………………………………….
Date: ………………………………………………………………………………..
My Care Co-ordinator
Name: ……………………………………………………………………………...
Contact Number: ……………………………………………………………………
Contact Address: …………………………………………………………………...
They do / do not (delete as applicable) have a copy of my Advance Statements
My Consultant/Psychiatrist
Name: ……………………………………………………………………………..
Contact Number: …………………………………………………………………
Contact Address: ………………………………………………………………..
They do / do not (delete as applicable) have a copy of my Advance Statement
My Advance Statement
The signs/symptoms that show I am becoming unwell/need more care and support may
include:
Things that have helped me
Things that have not helped me
……………………………………...
………………………………………
………………………………………
……………………………………….
………………………………………
………………………………………
......................................................
……………………………………….
………………………………………
………………………………………
Medical/hospital treatment – I wish the following to happen:
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
………………………………………………………………………………………………………
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Choice of medication – the medication I prefer to be given in the event of acute illness
(please give the reasons why).
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
………………………………………………………………………………………………………
My other wishes (for example about by home, my money, my children, my pets). I include
the names and contact telephone numbers of those persons who have agreed to
undertake specific tasks:
These are my wishes concerning my home:
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
………………………………………………………………………………………………………
Contacts: .....................................................................................................
These are my wishes concerning my children/ dependents/pets:
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
………………
Contacts: …………………………………………………………………………
These are my wishes concerning my money/finances:
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
………………..
Contacts: …………………………………………………………………………
Miscellaneous -I would also like the following to be taken into consideration
………………………………………………………………………………………………………………
………………………………………………………………………………………………………………
……………………………………..
Contacts: …………………………………………………………………………
I wish the following person/persons to be contacted in the event of my Advance
Statement being acted upon.
Name: ………………………………………………………………………………
Contact Number: ………………………………………………………………….
Contact Address: ………………………………………………………………….
They do / do not (delete as applicable) have a copy of my Advance Statement
Name: ………………………………………………………………………………..
Contact Number: .............................................................................................
Contact Address: …………………………………………………………………..
They do / do not (delete as applicable) have a copy of my Advance Statements
REVIEWS
This Advance Statement was reviewed by me on the following dates:
Date: ……………………………… Signed: ………………………………….
Date: ……………………………… Signed: ………………………………….
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WHAT TO DO NEXT
When you have completed your Advance Statement, you need to make copies. It’s a good idea
to give a copy of your Advance Statement to each of the following:
 Your GP
 Your Care Co-ordinator (if you have one)
 Your Consultant Psychiatrist (if you have one).
Keep a copy for yourself in a safe place.
Finally, in a case of emergency and to let people know that you have made an Advance
Statement you could carry a note or small card in your purse or wallet saying that you have
made an Advance Statement and where it can be found if needed.
I understand that this Advance Statement of my wishes and preferences will not be
legally binding on those involved in my care books about the contents of this statement
will be taken into account when considering what is in my best interests if I lose
capacity.
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APPENDIX 4
ADVANCE DECISION TO REFUSE TREATMENT
Name:
Address:
Date of Birth:
Name and Address of GP:
I make this Advance Decision to refuse treatment to record in advance my refusal of
the treatments set out below in the events of me no longer having mental capacity to
consent to all refuse these treatments at the relevant time.
I have made this Advance Decision at a time when I am of sound mind and after careful
consideration.
In making this Advance Decision, I confirm that advice has/has not as appropriate
[delete as appropriate] been sought from health professionals.
In the event that I lose capacity to make treatment decisions, I wish to refuse the
following treatments: [please set out treatment (s) being refused in as much detail as
possible]
The circumstances in which this Advance Decision should apply are as follows:
Life-Sustaining Treatment (tick boxes as appropriate)
I would also wish to refuse live-sustaining treatment, even if my life is at risk
This refusal of life-sustaining treatment includes (but is not limited to):
Cardio pulmonary resuscitation (starting my arts or breathing)
Assisted ventilation (breathing), including by using a machine.
Artificial nutrition and hydration (giving food or water by any other route
than by mouth.
I have marked the boxes to show that these are specific treatments that I do not want. I
am aware that I will be provided with basic care and comfort.
Maker’s Signature [ please sign and print name]
Date:
Witness
Name:
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Signature:
Address:
Date:
I have discussed this with (e.g. name of health care professional)
Professional/Job Title:
Date:
Contacts Details:
I give my permission for this document to be discussed with my relatives/carers.
(delete as applicable)
Review of Advance Decisions:
Yes/No
Review 1:
Date:
Marker’s Signature:
Witness Signature:
Review 2:
Date:
Marker’s Signature:
Witness Signature:
The following list identifies which people have a copy and have been told about the
Advance Decision to refuse treatment (including their contact details)
Name
Relationship
Telephone Number
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