Mental Capacity Act
(2005)
Implications for
General Practitioners
Dr. Tracey Eddy
Consultant Psychiatrist OPMH
Southern Health NHS Foundation Trust
Key role of the MCA 2005
• Codifies the law on capacity , doctrine of best interests and
advance directives
• Supports adult autonomy with respect to health and social care
decisions and challenges discrimination on the basis of age,
appearance, disability or diagnosis.
• Enables adults to plan ahead for a time when they may lack
mental capacity
• Strengthens safeguards (criminal and civil) for people who lack
capacity to make a specific decision at the time it needs to be
made
• Introduce a Code of Practice to support compliance with the Act
to which professionals must pay due regard
Overview of the MCA
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Five statutory principles
Definition of how to assess capacity
Best interests
Protection to people providing care and treatment – section 5
Substituted decision making – LPA, advance directives ,
Court of Protection deputies.
• IMCA
• Protection for those who lack capacity – ‘wilful neglect’or
‘ill treatment’
Shared Understanding
The 5 Statutory Principles
5 Before the act is done, or the
decision is made, regard must be had
to whether the purpose for which it is
needed can be as effectively achieved
in a way that is least restrictive of
the persons rights and freedom of
action.
4 An act done, or decision made, under this
Act for or on behalf of a person who lacks
capacity must be done, or made, in his best
interests.
3 A person is not to be treated as unable
to make a decision merely because he
makes an unwise decision.
2 A person is not to be treated as
unable to make a decision unless all
practicable steps to help him to
do so have been taken without
success.
1 A person must be assumed
to have capacity unless it is
established that they lack capacity.
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Assessment of capacity –
decision and time specific
1) Diagnostic test: Is there a disturbance or
impairment in the functioning of the mind or brain?
2) Functional test: Is the individual unable to do any
of the following –
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Understand the information
Retain the information long enough to decide
Weigh up the information
Communicate the decision
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Best interests checklist
• Don’t make assumptions
• Consider the individual’s own wishes, feelings, beliefs and
values, involve them if possible
• Consider any advance statements
• Views of family and informal carers
• Can the decision be put off until the person regains
capacity?
• Take into account views of independent mental capacity
advocate, attorney or deputy
• Show that it is in their best interests and is the least
restrictive alternative or intervention
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Acts in connection with care or
treatment- section 5
• Section 5 of the Act allows carers, healthcare and social
care staff to carry out certain tasks without fear of liability
• Includes acts personal care - washing, dressing, personal
care, doing shopping, arranging household activities etc
• healthcare and treatment –
diagnostic examinations and tests,
professional medical/dental treatment,
medication,
taking someone to hospital for assessment or treatment,
providing nursing care,
carrying out any other necessary medical procedures,
providing care in an emergency
• Individual must lack capacity, MCA principles apply
Use of restraint – sec 6 (4)
• Sec 6(4) of 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
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restrict a person’s freedom of movement, whether
they are resisting or not.
• Appropriate use of restraint falls short of deprivation of
liberty.
Acts in connection with care or
treatment – section 5
• However the MCA does not permit:
• - inappropriate restraint. Any restraint must be
a) necessary to protect the person who lacks capacity from
harm and
b) in proportion to the likelihood and seriousness of that harm.
• - treatment that goes against a valid and applicable advance
decision to refuse treatment.
•
treatment that goes against the donee of a valid LPA or deputy of
the court.
• a person to be deprived of their liberty (Deprivation of liberty
safeguards introduction (DOLS) April 2009 ).
S5.1 ‘cloak of protection’
If you don’t have 3 buttons you’re
undone!
5 statutory principles
Assessment of capacity
Best interests decision
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Case Scenarios
• A 66yr old man admitted to elderly care ward with a cheat
infection. He also has a history of hypertension, angina , a
smoker. On day three of his admission he becomes more
acutely confused, appears to be experiencing auditory
hallucinations, resisting care and refuses medication.
• A 87 yr old woman living alone develops a severe chest
infection / heart failure and becomes acutely confused. Her
GP assess that further treatment in hospital is required and
cannot be provided at home. The woman does not wish to go
to hospital. The ambulance crew are reluctant to transport her
to hospital.
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A 54 year old man with a history of heavy alcohol
consumption becomes confused, agitated and paranoid 2 days
post operatively.
Case scenarios – how to proceed
• Assess capacity to consent to care and treatment,
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• Document capacity assessment
• Treat as appropriate under sec5 MCA – in best interests,
least restrictive measure .
• Be aware of need to consider MHA if treating mental
disorder
Substituted Decision making
• Lasting Power of Attorney
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financial LPA
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health and welfare LPA
• Advance Directive
• Court appointed deputies
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• Court of protection – one off decisions
Lasting powers of attorney
• Two different LPAs
-personal and welfare (including healthcare
-property and affairs (financial)
Donor and donee must be over 18
• Donor may place restrictions on powers
• Not valid until registered with the office of public guardian
• Best interests principle applies
Personal and welfare LPA
• Donee empowered to make healthcare decisions once donor
incapacitated
• Authority does not extend to refusing consent to life
sustaining treatment unless expressly provided
• Advance refusal outranks LPA unless LPA both created later
and is valid and applicable
• LPA may be specifically or automatically revoked
• Protection given to donees and third parties relying on LPAs
which turn out to be invalid
• MHA can over-rule in the treatment of mental disorder
Implications for GPs
• Assessment of Capacity
• Request to be Certificate provider LPA
• Capacity assessments for COP3
• Decision making with attorney / other professionals
• Advice / support
• Best interest decisions
Certificate provider for LPA
• Assess person on their own
• the donor understands the LPA’s purpose
• nobody has used fraud or undue pressure to trick or force
the donor into making the LPA
• Statutory paperwork
• If life sustaining treatment needs to be specific authorising
statement .
Case scenario LPA
A 63-year old man with moderate Alzheimers disease MMSE
18/30)is assessed by his GP with hypotension secondary to
suspected gastro-intestinal haemorrhage. The GP decides that
he requires further assessment and urgent blood transfusion,
however his wife states that she has been appointed his
attorney in a lasting Power of Attorney (LPA) and that she
does not want this to happen because he has dementia, and
she knows from past discussions with him that he would not
have wanted any treatment to prolong his life.
Question?- what should the medical team do in this
situation? Can they overrule the attorneys decision?
Checking LPA
1) Check patient lacks capacity - if not patient decides re the
treatment.
2) Check LPA registered with the Office of Public Guardian
and is valid
3)Ask to see LPA document and make sure attorney has
authorisation to make relevant health care decisions
regarding health.
4) Check there is a specific statement authorising lifesustaining treatment decisions.
5) If the team have concerns re attorney (e.g.suspect attorney
motivated by desire to bring about death/ abusing them),
they may proceed with the treatment provided it is
considered to be in his best interests, and apply
immediately to the Court of Protection for a decision.
6) If LPA valid and applicable, and no concerns, team must
follow decision of the attorney
Testamentary capacity
• Understand what a will is and what its consequences are,
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• Nature and extent of property
• Understand the nature and extent of the claims upon him,
both of those included and excluded
• Free from abnormal state of mind that might distort
feelings or judgements relevant to making the will .
Advance directives
• An advance statement that represents an actual decision to
refuse treatment, albeit at an earlier date.
• P must be over 18.
• P must have capacity at the time of making.
• Decision must specify the treatment to be refused.
• Decision may specify the circumstances in which refusal
will apply.
• Decision may be withdrawn or altered if P has capacity.
• Can only refuse treatment.
• Can be in writing or verbal ( except life sustaining
treatment ).
• If AD is valid and applicable to the circumstances it must
be followed ( can be over-ruled by MHA )
Case scenario – advance
directives
A 48 year old woman with leukaemia is acutely confused as
she has an haemoglobin of 2.5g/dl. She lacks capacity to
refuse a blood transfusion, although it transpires she made an
advance directive to refuse blood transfusions because of
news stories about CJD contamination of blood products.
Question – How should the team proceed?
Advance Directive – check list 1
Does it exist?- Responsibility of patient to ensure brought to
attention, but HCPs need to be aware one might exist.
Is it valid?
- a) Did they have capacity when it was made?
b) Has the person since withdrawn decision?
c) Has a subsequent LPA be made since making the decision
nominating attorney to act?
d) Are there reasonable grounds for believing that the
circumstances that exist which the person did not
anticipate at the time of making the advance decision and
which would have affected his/her decision had she
anticipated them?
e)Has the person done anything that is inconsistent with the
decision?
Advance Directive – check list 2
Is it applicable?
a) Does the person have capacity? – if so can consent to
treatment.
b) Does the advance decision specify which treatment the
person wishes to refuse? And is the treatment in question
that specified in the advance decision?
c) Do all circumstances specified in the AD exist?
d) If treatment is for life-sustaining treatment it must
-be in writing
-signed by themselves or by somebody else
on his behalf and at his direction,
-witnessed
-make a clear statement that the decision is
to apply even if life is at risk.
Independent Mental Capacity
Advocacy (IMCA) Service
Local service to represent the views of:
• People who have been or are being assessed as lacking
capacity to make a serious decision about medical treatment or
a change in accommodation
• People who have no-one to speak for them
• Can also be used for people having accommodation reviewed
or where there are adult protection concerns
• www.hampshireadvocacy.org.uk
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S44 New Criminal Offences
The Act introduces new criminal offences of the ‘illtreatment’ or ‘wilful neglect’ of a person lacking capacity.
• Ill-treatment – deliberately or recklessly ill-treating
someone.
• Wilful Neglect – failing to carry out a duty you knew
you had to do, or should have known you had to do.
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Implications for GP’s (1)
“capacity assessments
Capacity is decision / time specific – Document clearly CQC
Test of capacity
– disturbance / impairment in the functioning of the mind ,
-unable to understand, retain, weigh up and communicate
decision
Observe 5 principles of MCA: assumption of capacity, best
interests, least restrictive, can make unwise decision, all
practicable steps to enable decision
Section 5 –acts in connection with care and treatment
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Implications for GP’s(2)
Clinical decision making”
• Patient’s right to support when making decisions to consent or
not to treatment.
• If the person lacks capacity to consent to treatment or care
themselves, only an attorney (personal and welfare) or a court
appointed deputy can consent on their behalf
• A family member cannot consent unless they hold a ‘Health &
Welfare Power of Attorney’ that covers the treatment
• If there is no one to provide consent, the relevant professional
should lead decision making in the best interests of the person
who lacks capacity
Statutory involvement of an Independent Mental Capacity
Advocate
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Implications for GP’s (3)
working with other professionals”
• Support other professionals in Assessments of Capacity
• Certificate provide for LPA
• Provide evidence of a lack of capacity to the court of
protection (COP3 form)
• Support /advice in advance directives or LPA
• Support Safeguarding Adults investigations, acting in
accordance with the Mental Capacity Act
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