Understanding and Managing
Huntingdon’s Disease
Mental Capacity Act 2005
Julia Barrell
MCA Manager
Cardiff and Vale UHB
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Introduction
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What is the Mental Capacity Act 2005?
5 Key Principles
What is Mental Capacity?
2 Stage Test
Best Interests and Consultation
The decision maker
Restraint and restrictions
Other Key Issues
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Mental Capacity Act 2005
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empowers and protects people who lack
capacity to make decisions for themselves
puts the needs and wishes of the person
at the centre of any decision making
process
brings clarity to decision making
protects incapacitated people but also
carers and professionals
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Scope of the Act
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affects people aged 16 and over
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At any one time, about 2 million people
have impaired mental capacity
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And 6 million people care for them
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Scope of the Act contd..
Includes people incapacitated by:
 Dementia
 Physical illness or its treatment
 Learning disability
 Brain injury or stroke
 Mental disorder
 Substance misuse
Or
 Anyone planning for the future
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Five Key Principles
A
presumption of capacity
 Support to make decisions
 Right to make unwise decisions
 Best interests
 Least restrictive intervention
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What is Mental Capacity?
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Mental capacity is the ability to make a
decision
Capacity can vary over time
Capacity may well vary in relation to the
decision required
An individual lacks capacity if they are
unable to make a particular decision at
a specific time
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Two stage Capacity Test
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Is there an impairment of, or disturbance
in, the functioning of the person’s mind or
brain?
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Is the impairment or disturbance sufficient
that the person lacks the capacity to make
that particular decision?
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Capacity Test contd..
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A person is unable to make a decision for
himself if he is unable:
to understand the information relevant to
the decision
to retain that information
to use or weigh that information, or
to communicate his decision
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If person lacks capacity….
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No-one can consent to care or treatment
on behalf of that person, except
A Court appointed Deputy
A donee of a Lasting Power of Attorney
This means that family members, health
professionals, etc, cannot consent on
behalf of the patient!
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Best interests
Need to weigh up a number of issues,
including
 Medical, welfare, emotional and social
issues
 What the person would have decided, if
they still could
 What other people feel is best for the
person
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Best Interests Checklist
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To decide what is in an incapacitated person’s
best interests consider:
 The person’s future capacity
 Their past and present wishes and feelings
 Beliefs and values likely to influence their
decision
 Other factors that the person would be likely
to consider
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Consultation
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Appropriate individuals have a right to be
consulted prior to a best interests decision:
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Anyone named by the incapacitated person
Anyone engaged in caring for the person or
interested in his welfare
Any donee of a lasting power of attorney
Any deputy appointed by the court
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Best interests contd.
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Best interests is NOT what you would want done, if
you were the person who lacked capacity
Best interests is NOT just medical best interests –
need to consider emotional, welfare and social issues
too
Best interests is NOT what the relatives, etc want
(best for the relatives, etc) – it’s what those people
think would be best for the person, knowing them as
they do
Best interests is NOT just “substituted judgement” (ie.
what the person would have decided) although this is
something that needs to be considered
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The Decision Maker
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The person who needs the decision taken is the
person who must decide about the patient’s
capacity and decide what is in their best
interests
A range of different decision makers may be
involved with the person
If you need to do something to/for a patient,
YOU need to check capacity and best interests
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Restrictions and restraint
The MCA states that someone is using
restraint if they:
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use force – or threaten to use force – to
make someone do something that they
are resisting, or
restrict a person’s freedom of
movement, whether they are resisting
or not
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Appropriate use of…..
When it prevents harm & is proportionate
response to likelihood & seriousness of harm –
eg.
 Stopping a person from leaving ward because
they will get run over – OK!
 Restraining a patient in order to take a blood
sample, if this will help with diagnosis and
enable treatment which will make the patient
more comfortable – OK!
NB. These must be recorded in patient’s notes.
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Other Key Issues
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Advance Decisions
LPAs and Court appointed Deputies
IMCA
Criminal Offence
Code of Practice
Protection for staff and carers
DoLS
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Advance Decisions
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Advance decisions to refuse treatment
Made only by mentally capable people aged 18
and over
Can be oral or written (unless relating to lifesaving treatment)
Must specify the treatment being refused
Healthcare professionals are bound by advance
decisions to refuse treatment
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Lasting Power of Attorney
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Person must be 18 years and over with capacity at the
time of making the LPA
Gives a named person (or people) power to take
decisions, in donor’s best interests, when donor loses
capacity to take those decisions
Can be about property and affairs or personal welfare
Must be registered with Office of the Public Guardian
Can include power to take decisions regarding lifesustaining treatment
You need to see the registered document and look at
what powers the attorney holds
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Court Appointed Deputy
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Court of Protection can appoint someone to be the
Deputy for a person who lacks capacity
Deputy will have power to take particular decisions on
behalf of the person lacking capacity – may include
treatment and care
Deputy cannot refuse consent to life-sustaining
treatment
You need to see the Court order setting out who the
Deputy is and what powers they have
Court Appointed Deputies for personal welfare are rare!
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IMCA
Independent Mental Capacity Advocate must be involved
when
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There is no-one to consult re. an incapacitated person and
decisions are being made about serious medical treatment or
significant changes of residence
Can also be involved when
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the incapacitated person is involved in adult protection
procedures (POVA) or
A care review is required and there is no-one to consult
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Criminal Offence
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The Act introduces a new criminal offence
of ill-treatment or wilful neglect of a person
lacking capacity
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The Act does not legitimise euthanasia
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Code of Practice
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MCA says that paid staff must “have
regard” to the Code – ie. need to follow it!
Gives detailed guidance on all the issues
covered by MCA
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Protection for staff and carers
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Section 5 of MCA confers “protection from
liability”
Staff and carers won’t be prosecuted or
sued if they provide care or treatment for
people who lack capacity to decide for
themselves about the matter in question,
providing that they comply with MCA
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Deprivation of Liberty Safeguards
(DoLS)
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Part of MCA, came into force on 1st April 2009
Provide a legal framework for caring for adult,
mentally disordered, incapacitated people in
situations where they are deprived of their
liberty in hospitals or care homes
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Remember
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The Act:
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Sets out the 5 principles all healthcare staff must adhere to
Provides a definition and test of lack of capacity
Requires consultation with other people to determine best
interests
Provides protection for staff and carers if they use
restraint/restrictions appropriately
Gives advance decisions statutory status
Clarifies who can take decisions in healthcare and welfare
situations
Provides for the lawful deprivation of a person’s liberty in
hospitals and care homes
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Further information
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Mental Capacity Act 2005 Code of Practice
Mental Capacity Act booklets
http://www.justice.gov.uk/guidance/protecti
ng-the-vulnerable/mental-capacityact/index.htm
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Julia Barrell
Mental Capacity Act Manager
029 2074 3652
WHTN 01872 3652
[email protected]
http://www.mentalcapacityact.wales.nhs.uk
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