The Mental Capacity Act 2005
After
relatively little fanfare, some of the provisions of the Mental Capacity Act
2005 (“the Act”) came into force on 1st April 2007. The majority of
the Act will come into force on 1st October 2007. There is a lengthy
Code of Practice which explains how the Act should be applied.
Regrettably this article
is long and unexciting – however it is still significantly less long than the Code of Practice. My hope is that it
will be a useful summary for practitioners who feel they should be aware of the
Act’s contents but don’t want to spend a whole day reading the Act and the Code
of Practice.
Part 1 of this article will summarise the Act’s basic
principles and consider what the Act means for patients and hospitals. Part 2
will consider the effect of the changes to the Court of Protection for those
representing patients.
The context
of the Act
The Act provides
a blueprint of how we should deal with people (aged over 16) who are unable to
make a decision for themselves in relation to a particular matter at a
particular time because of an impairment of, or a disturbance in the
functioning of their mind or brain. This fills a lacuna in the current law.
The
existing Court of Protection is responsible for supervising the financial affairs
of those people who do not have capacity to manage their own financial affairs.
The Court of Protection appoints Receivers who are given the authority to make
financial decisions for those they represent. However, at present, nobody has
the authority to make health and welfare decisions for people who do not have
the capacity to make their own decisions. Those working with people without
capacity, including clinicians, at present have to ask the Family Division of
the High Court to use its inherent jurisdiction and make a declaration that a
proposed course of action is lawful. In such proceedings the Family Division
Judge considers the best interests of the person in question.
From
October 2007, the new Court of Protection will be able to appoint Deputies who
can be authorised to make health and welfare decisions, as well as financial
decisions for those who do not have capacity to make the decision themselves.
Certain other people, including healthcare professionals and carers, who have
to make decisions on behalf of adults without capacity in the course of caring
for them or treating them will be protected from legal liability as long as
they have followed the process set out in the Act.
Decisions taken
under the Act could be decisions about day-to-day matters or decisions about
life-changing events. Nothing in the Act permits a decision to be made on
someone else’s behalf on marriage, consent to sexual relations, divorce,
adoption, discharge of parental responsibility for matters other than property
and consent under the Human Fertilisation and Embryology Act 1990.
The
basic principles – sections 1-4
Section 1
of the Act sets out the five statutory principles which underlie it.
·
A person must be
assumed to have capacity unless it is established that he lacks capacity.
·
He must not be
treated as being unable to make a decision unless all practical steps to help
him to do so have been taken without success.
·
A person is not
to be treated as lacking capacity merely because he makes an unwise decision.
·
Anyone making a
decision under the Act on behalf of someone who lacks capacity must do so in
that person’s best interests.
·
Anyone making a
decision under the Act on behalf of someone who lacks capacity must do so in a
way which is the least restrictive of that person’s rights and freedoms of
action.
Sections 2
and 3 set out the requirements for assessing whether someone lacks capacity. The
requirements are consistent with the existing common-law authorities. Capacity
is both time-specific and decision-specific. There is a diagnostic threshold
in that the alleged incapacity must be due to temporary or permanent impairment
of, or disturbance in the functioning of, the mind or brain. Then there is a
functional test: can a person understand the relevant information, retain it
for long enough to make the decision, use or weigh that information as part of
the decision-making process and then communicate that decision in some way or
another? The issue is determined on the balance of probabilities.
Section 4 sets
out the factors to be considered in determining whether a decision is in a
person’s best interests. People who lack capacity must not be the subject of
discrimination. Particular regard is to be had to the person’s past and present
wishes, his beliefs and values and other factors he would have been likely to
consider. If practicable and appropriate, a named person, a carer or a
court-appointed deputy should be consulted.
What
does the ACT mean for patients and hospitals?
Section 5
states that those caring or treating for people who may lack capacity will not
incur liability for acting without consent if (1) they take reasonable steps to
establish whether the patient lacks capacity and (2) they act in the belief
that the patient lacks capacity and that a particular act will be in the
patient’s best interests. However their act must be necessary to prevent harm
to the patient and must be a proportionate response to the likelihood of the
patient suffering harm and the seriousness of that harm. Section 5 does not
affect any civil liability owed to the patient in negligence.
Where a
decision involves the provision of medical treatment, the doctor or other
member of the healthcare staff responsible for carrying out the particular
treatment is the decision-maker under the Act. It is that the doctor or member
of the healthcare staff who is responsible for ensuring that the blueprint set
out in the Act is followed.
There is
now a greater onus on those working with, treating or caring for people who may
lack capacity to give such people every opportunity and assistance to enable
them to make their own decisions. This could mean involving someone’s family,
friends or carers to support the person or to help the decision-maker
understand, for example, how that person communicates, how to help the person understand
information or whether that person is more alert at a particular time of day.
Decision-makers will need to be able to demonstrate that they have complied
with their obligations under section, especially where the issue of capacity is
finely balanced.
When
considering whether an act is in someone’s best interests the decision-maker should
not make a decision based on what they would decide in that situation. The
decision-maker has to take into account the person’s wishes, beliefs and
values. However, whilst the consideration of such factors might lead one to
conclude that the aim is to make the decision that the person would have made
themselves had they been able to, the Code is clear that the final decision
must be based entirely on what is in a person’s best interests. Accordingly the
assessment of best interests is an objective assessment with the factors listed
in section 4 forming part of a checklist.
Applying
the process in the Act
In
non-emergency situations, in order to be protected from liability, it will be
necessary for the healthcare professional taking the decision to:
·
have taken all
practicable steps to enable someone to make a decision themselves;
·
have established
whether there is a donee of a lasting power of attorney or a court-appointed
deputy with authority to make the necessary decision;
·
have considered
the two-stage capacity test;
·
have taken
reasonable steps to establish whether the patient lacks capacity (with a
multi-disciplinary team if appropriate) and recorded the assessment in the
patient’s clinical notes;
·
have considered
whether it would be appropriate to defer the decision where there is a chance
that someone will regain capacity to make the decision themselves;
·
only act without
consent where
o
they reasonably
believe the patient lacks capacity; and
o
they believe
that the act in question would be in the patient’s best interests having
considered the wishes of the patient, the patient’s beliefs and values, other
relevant factors and having consulted with the relevant people, and recorded
how the decision was reached, the reasons, who was consulted and the factors
taken into account;
o
they are acting
in the least restrictive way possible.
Emergency
action
A
healthcare professional is very unlikely to be liable for emergency action
taken to save a patient’s life or to prevent a serious deterioration in
condition. However the Code says that even in such circumstances the healthcare
professional should try to communicate with the person and keep them informed
of what is happening.
Conflict
with a Deputy or a donee of a Lasting Power of Attorney
The Act
does not authorise someone to do an act which conflicts with a decision, within
the scope of his authority, of a donee of a lasting power of attorney or a
Deputy, unless it is to provide life-sustaining treatment or to prevent a
serious deterioration in a patient’s condition. Where there is a conflict, and
the hospital considers that the Deputy is not acting in a patient’s best
interests, it is likely to be necessary to refer the case to the Court of
Protection.
Advance
decisions
Healthcare
professionals must respect an applicable valid advance decision by a patient
which applies to proposed treatment, if they are aware of that advance decision.
Where an advance decision relates to refusing life-sustaining treatment, it
must be documented, signed and witnessed. The more obviously that it applies to
a particular situation, the greater the likelihood that it will be held to be
valid and applicable. Doctors will not be liable for failing to follow a
person’s advance decision if they did not know of its existence.
Life
sustaining treatment
Where a
healthcare professional needs to decide whether to give life-sustaining
treatment, specific considerations apply. The fundamental rule is that anyone
deciding whether to consent to or refuse life-sustaining treatment must not be
motivated by a desire to bring about the person’s death. It is up to the
healthcare professional providing treatment to assess whether the treatment is
life-sustaining. All reasonable steps which are in the person’s best interests
should be taken to prolong their life. Reference should be made to any professional
guidance. The decision-maker must consider the range of treatment options
available to work out what would be in the person’s best interests. If the
doctor’s assessment is disputed and there is no other way of resolving the
dispute, the Court of Protection may be asked to decide what is in the person’s
best interests.
Where a
placement will involve deprivation of liberty
Where
placing someone in a hospital or care home might deprive that person of their
liberty, the Court of Protection would have to decide it was in the person’s
best interests or the person would have to meet the criteria for detention
under the Mental Health Act 1983.
Decisions
requiring Court of Protection authority
Unless
someone has made a valid advance directive to refuse the proposed treatment or
made a Lasting Power of Attorney appointing an attorney to make such healthcare
decisions for them, only the Court of Protection can make a decision about:
·
the proposed
withholding or withdrawal of artificial nutrition and hydration from a person
in a persistent vegative state;
·
whether a person
should donate an organ or bone marrow to another person;
·
the
non-therapeutic sterilisation of a person who lacks capacity to consent;
·
cases whether
there is a dispute about whether a particular treatment will be in a person’s
best interests.
Referral
to an Independent Mental Capacity Advocate
Where a
person without capacity has no-one willing or able to support them other than
paid staff, an Independent Mental Capacity Advocate (IMCA) must be instructed
by the NHS body when
·
an NHS body is
proposing to provide, withhold or stop serious medical treatment
·
an NHS body or
local authority is proposing to arrange accommodation in hospital for longer
than 28 days or accommodation in a care home for longer than 8 weeks.
The IMCA’s
role is to support and represent the person who lacks capacity and therefore
they have a right to see the relevant healthcare and social care records.
Information or reports provided by an IMCA must be taken into account by the
decision-maker as past of the process of working out whether a proposed
decision is in the person’s best interests.
Serious
medical treatment is defined as treatment which involves giving new treatment,
stopping treatment that has already started or withholding treatment that could
be offered in circumstances where a single treatment is proposed but there is a
fine balance between the likely benefits and burdens, a decision between a
choice of treatments is finely balanced or what is proposed is likely to have
serious consequences for
Provisions
in force from 1st April 2007
From 1st
April 2007, section 44 of the Act creates a criminal offence, triable either
way, when person with a person who lacks capacity is ill-treated or wilfully
neglected by his carer, his donee of a lasting power of attorney or his
court-appointed deputy.
The Code of
Practice which accompanies the Act provides guidance to anyone who is working
with or caring for adults who may lack capacity to make particular decisions.
Certain categories of people, including healthcare staff, are legally required
to have regard to the Code and will be expected to give good reasons where they
have departed from the Code. This Code of Practice must be followed from 1st
April 2007.
The IMCA
service is effective from 1st April 2007 and NHS bodies and local
authorities are required, in the prescribed circumstances, to instruct an IMCA
for an adult without capacity who does not have support from friends or family.
