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Mental Capacity Act 2005


Policy statement

The Mental Capacity Act 2005 (MCA) and the accompanying Code of Practice is a vital piece of legislation which aims to make a real difference to the service user’s lives. It should empower service users to make decisions and protect those who lack capacity by providing a flexible framework that places individuals at the very heart of the decision making process.


Care Act 2014

Throughout this Act, capacity or lack of it, determines how our service users will be supported and cared for by ensuring that person centred care is core to how services are delivered. Those services must reflect the needs and preferences of the service user requiring care and support and where they lack capacity, the Code of Practice must be followed. The Care and Support Statutory Guidance updated on May 9th 2016 issued under the Care Act 2014 – Chapter 6.


The policy

Within this organisation, the Code of Practice referred to above will be used as the guidance on how to proceed in regard to service users who may lack capacity. Service users with capacity will be listened to, their needs and preferences taken into account during all aspects of care and support planning process. We will act in accordance with the five statutory principles at all times unless guided otherwise by our local Mental Capacity Assessment team or statutory multi-agency partner.

The five statutory principles are:


  • A service user must be assumed to have capacity unless it is established that they lack capacity.


  • A service user is not to be treated as unable to make a decision unless all practical steps to help them to do so have been taken without success.


  • A service user is not to be treated as unable to make a decision merely because they make an unwise decision.


  • An act done, or decision made under this act, for or on behalf of a service user who lacks capacity, must be done or made in their best interests.


  • Before the act is done, or the decision is made, regard must be had as to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the service user’s rights and freedom of action.

Throughout the Code of Practice, a service user’s capacity (or lack of capacity) refers specifically to their capacity to make a particular decision at the time it needs to be made.


To summarise:

  • Every service user has the right to make their own decisions if they have the capacity to do so. Family carers and health care or social car staff must assume that a service user has the capacity to make decisions, unless it can be established that the service user does not have capacity.


  • Service users should receive support to help them make their own decisions. Before concluding that individual’s lack of capacity to make a particular decision, it is important to take all possible steps to try to help them reach a decision themselves.


  • Service users have the right to make decisions that others might think are unwise. A service users who makes a decision that others this is unwise should not automatically be labelled as lacking the capacity to make a decision.


  • Any act done for, or any decision made on behalf of someone who lacks capacity must be in their best interests.


  • Any act don’t, or any decision made on behalf of someone who lacks capacity should be an option that is less restrictive of their basic rights and freedoms, as long as it is in their best interests.

These basic tenets must be understood, respected and incorporated into the organisation’s practice, at every level, by all members of staff. Anyone who claims that an individual lacks capacity should be able to provide proof. They need to show that, on the balance of probabilities, the individual lacks capacity to make a particular decision, at the time it needs to be made. This means being able to show that it is more likely than not that the service user lacks capacity to make the decision in question.


What is the test of capacity?

To help determine if a service user lacks capacity to make a particular decision, the Act sets out a Two-stage test of capacity, which must be undertaken using the appropriate forms.

Stage 1: Does the service user have an impairment of, or a disturbance in the functioning of their mind or brain. If the service user does not have such an impairment or disturbance, they will not lack capacity under the Act.


Examples of impairment or disturbances include:

  • Conditions associated with some forms of mental illness

  • Dementia

  • Significant learning disabilities

  • The long-term effects of brain damage

  • Physical or mental conditions that cause confusion, drowsiness or loss of consciousness

  • Delirium

  • Concussion following a head injury, and

  • The symptoms of alcohol or drug use

Stage 2: Does the impairment or disturbance mean that the service user is unable to make a specific decision when they need to?


For a service user to lack capacity to make a decision, the Act says their impairment or disturbance must affect their ability to make the specific decision when they need to. But first, service users must be given all practical and appropriate support to help them make the decision for themselves (Principle 2).


Stage 2 can only apply if all practical and appropriate support to help the service user make the decision has failed.


“Inability to make a decision”


A service user is unable to make a decision if they cannot:

  • Understand information about the decision to be made (the Act calls this “relevant information”)

  • Retain that information in their mind

  • Use or weigh that information as part of the decision-making process, or

  • Communicate their decision (by talking, sign language or any other means)


Assessing ability to make a decision

Does the service have a general understanding of what decision they need to make and why they need to make it?


Does the service user have a general understanding of the likely consequence of making or not making the decision?


Is the service user able to understand, retain and use and weigh up information relevant to this decision?


Can the service user communicate their decision (by talking, using sign language or any other means)? Would the services of a professional (such as a speech and language therapist) be helpful?


The member of staff who carries out the initial assessment will be trained and competent to do so. All staff will be trained and competent in MCA 2005 as different staff will be involved in assessing someone’s capacity to make different decisions at different times on a day to day basis. Any assessor will have the skills and ability to communicate with the service user.


When assessing capacity, the following points are considered:

  • Start by assuming the service user has capacity to make the specific decision. Is there anything to prove otherwise?

  • Does the service user have previous diagnosis or disability or mental disorder?

  • Does the condition now affect their capacity to make this decision? If there have been no previous diagnosis’s, it may be best to get a medical opinion

  • Make every effort to communicate with the service user to explain what is happening

  • Make every effort to try to help the service user make the decision in question

  • If the disagreement cannot be resolved, the person who is challenging the assessment may be able to apply to the Court of Protection


Best interest decision

One of the key principles of the MCA is that any decision made on behalf of a service user who lacks capacity must be done or made in that service users best interests.


This organisation follows these rules:

· For most day to day actions or decisions, the decision maker will be the staff most directly involved in the service user’s care, as recorded in the care plan

· Where a decision involves the provision of medical treatment, the GP or other health care staff are the decision makers. All decisions are recorded in the service user’s care plan

  • Where nursing care is provided, the nurse will be the decision makers

  • If a Lasting Power of Attorney has been made or a deputy has been appointed under a court order, the attorney or deputy will be the decision maker for decisions within the scope of their authority

  • Whenever possible, the service user who lacks capacity will be involved in the decision making process.

A record is kept in the service user’s file and includes:

o How the decision about the service user’s best interest was made

o What the reasons for reaching the decision were

o Who was consulted to help work out best interests

o What particular factors were taken into account


For major decisions based on best interests of a service user who lacks capacity, the responsible person is also given a record of the decision.


Factors which may indicate that a service user may regain capacity in the future:

  • The cause of the lack of capacity can be treated, either by medication or some other form of treatment or therapy

  • The lack of capacity is likely to decrease in time (for example, where it is caused by the effect of medication or alcohol, or following a sudden shock)

  • A service user with learning disabilities may learn new skills or be subject to new experience which increase their understanding and ability to make certain decisions

  • The service user may have a condition which causes capacity to come and go at various times (such as more forms of mental illness) so it may be possible to arrange for the decision to be made during a time when they do have capacity

  • A service user, previously unable to communicate, may learn a new form of communication


Advocacy


This organisation will encourage the service user or responsible person to use an advocate if:

  • The service user who lacks capacity has no close family or friends to take an interest in their welfare and they do not qualify for an Independent Mental Capacity Advocate

  • Family members disagree about the service users best interests

  • Family members and professionals disagree about the service user’s best interests

  • There is a conflict of interest for service users who have been consulted in the best interest’s assessment (for example; the sale of family property where the service user lives)

  • The service user who lacks capacity is already in contact with an advocate

  • The proposed course of action may lead to the use of restraint or other restriction on the service user who lacks capacity

  • There is a safeguarding concern


Advance decision

If the service user has made an Advance Decision to refuse treatment while they still have capacity to do so, and before they need particular treatment, this Advance Decision is kept in their file and health care staff must be informed and they must respect this decision if it is valid and applies to proposed treatment.


Physical intervention


Prime Recruitment understands that someone is using physical intervention if they:

  • Use force or threaten to use force to make someone do something that they are resisting

  • Restricts a service user’s freedom of movement, whether they are resisting or not Physical intervention can be physical, medical and mechanical

Prime recruitment is aware that:


An action intended to restrain a service user who lacks capacity will not attract protection from liability unless: the person taking action must reasonably believe that physical intervention is necessary to prevent harm to a service user who lacks capacity; the amount or type of physical intervention used and the amount of time it lasts must be a proportionate response to the likelihood and seriousness of harm.

Addition staff must refer to and follow the organisation’s Physical Intervention Policy.


Related policies

  • Advocacy

  • Adult Safeguarding

  • Dignity and Respect

  • Deprivation of Liberty Safeguards

  • Meeting Needs

  • Physical intervention

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