Mental Capacity Act 2005 - NHS Wales · including the new Independent Mental Capacity Advocate (IMCA) service and the new criminal offences of ill-treatment or wilful neglect of a

Mental Capacity Act 2005

Community Care and Primary Care Training Set

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Title Mental Capacity Act 2005: Community Care and Primary Care Training Set

Author DH

Publication date May 2007

Target audience PCT CEs, NHS Trust CEs, Care Trust CEs, Foundation Trust CEs, Local Authority CEs

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Description One of five sets of training materials to support the implementation of the Mental Capacity Act 2005

Cross reference N/A

Superseded documents N/A

Action required N/A

Timing N/A

Contact details [email protected]

www.dh.gov.uk/mentalcapacityact

For recipient’s use

mailto:[email protected]

http://www.dh.gov.uk/mentalcapacityact

Mental Capacity Act 2005Community Care and Primary Care Training Set

May 2007

AuthorsUniversity of Central Lancashire

Nicky Stanley

Christina Lyons

Social Care Workforce Research Unit, King’s College London

Jill Manthorpe

Joan Rapaport

Phillip Rapaport

Trafford Law Centre

Michelle Carrahar

Catherine Grimshaw

Simone Voss

Independent consultant

Linda Spencer

Acknowledgements The authors wish to thank the following people who contributed to these training materials:

Tony Beresford, Andy Bilson, James Blewett, Debbie Brenner, Mark Brookes, Robert Brown, Marian Bullivant, Jeanne Carlin, Wesley Dowdridge, David Ellis, Debbie Ford, Bill Fulford, Marie Girdham, Paul Gantley, Paul Greenwood, Ann Hartill, Steve Iliffe, Carl Jackson, Jan James, Deborah Klee, Andrew Mantell, Nicola Maskrey, Jasbir Mungur, Lesley Peplar, Liz Price, Vicki Raymond, Dorothy Runnicles, Dennis South, Helen Spandler, Brian Waddelow, John Woolham, Linda Wright, Hester Youle

The quotations from users and carers were spoken by the Shoestring Theatre Company.


Contents Foreword 1

1 Introduction 3

1.1 Who is this training for? 31.2 Introducing the Mental Capacity Act 41.3 Using this training 41.4 Service users and carers 51.5 Which staff will be affected by the Mental Capacity Act? 6

2 Defining mental capacity 8

2.1 What is mental capacity? 82.2 Recording decisions about capacity 11

3 Using the Mental Capacity Act as part of screening processes 133.1 When is an assessment of capacity required? 13

4 Assessing capacity 16

4.1 How is capacity assessed? 164.2 Who assesses capacity? 174.3 Legal decisions and common law tests of capacity 184.4 Assessing capacity in practice 194.5 How do I assess capacity? 21

5 Care planning 24

5.1 Who is the decision maker in health and social care services? 245.2 Best interests 25

6 Delivering day-to-day care and treatment 27

6.1 Best interests decisions and acts 276.2 Recording day-to-day decisions 28

7 Limitations on restraint 29

7.1 What is restraint? 297.2 The Bournewood Case 30

8 Independent mental capacity advocates 32

8.1 The role of the independent mental capacity advocate 32

9 Planning for future care and treatment 35

9.1 Advance decisions to refuse treatment 359.2 Lasting Power of Attorney (LPA) 379.3 Enduring Power of Attorney 39

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10 Safeguards 40

10.1 New criminal offences of ill-treatment or wilful neglect 4010.2 The Court of Protection 4110.3 Court-appointed deputies 4210.4 Resolving disputes 4310.5 The Public Guardian 4410.6 Court of Protection visitors 4510.7 Raising concerns and complaints 45

11 Children and young people 47

11.1 Young people under the age of 16 4711.2 Young people aged 16 and 17 47

12 Research 49

13 Sharing information 51

13.1 Confidentiality 51

14 Using the Mental Capacity Act to improve practice 53

14.1 Communicating with service users and patients 53

Glossary 54

Useful sources and references 56

Certificate of Completed Learning Hours 58

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ForewordI am pleased to introduce these excellent new training materials on the MentalCapacity Act 2005 (MCA). They have been developed by the University ofCentral Lancashire (UCLAN) and the Social Care Workforce Research Unit atKing’s College London, and provide in-depth information and guidance onwhat the new MCA will mean to people like you working in health and socialcare. The MCA will apply to everyone who works in health and social careand is involved in the care, treatment or support of people who lack capacityto make their own decisions or consent to the treatment or care thatis proposed.

The MCA puts the individual who lacks capacity at the heart of decisionmaking and places a strong emphasis on supporting and enabling theindividual to make their own decisions or involving them as far as possible inthe decision-making process.

You will all have a vital role to play in the implementation of the MCA.Your role will begin in April when some parts of the MCA come into force –including the new Independent Mental Capacity Advocate (IMCA) serviceand the new criminal offences of ill-treatment or wilful neglect of a personwho lacks capacity.

The MCA Code of Practice, recently passed by Parliament, provides thefoundation of the training materials. It will be useful to become familiarwith the Code, which explains how the MCA will work on a day-to-day basis.As you will know, because you work in a professional or paid capacity withpeople who lack capacity, you have a duty of regard to the Code. The trainingmaterials complement the Code and are a wide-ranging and comprehensivepackage, which, together with the Code, will ensure that you have therelevant knowledge and skills to meet the demands of the new MCA.

The new MCA will play an important part in safeguarding and protectingthose people in society who lack capacity to do so for themselves. Workingin health and social care, you will be playing a vital part in supporting andcaring for some of the most vulnerable people in society, and I am confidentthat you will rise to the challenge posed by the new MCA.

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The training is interactive and I know that you will be engaged and stimulated by the material. I hope that the training will leave you with a full understanding of your new role in relation to the MCA, and, most importantly, of your responsibilities to those in your care who lack capacity.

Rt Hon Rosie Winterton MP Minister of State (Health Services)

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1 Introduction 1.1 Who is this training for?

This training is for community care and primary care staff working with the Mental Capacity Act 2005 (MCA) in England and Wales. It is designed to be used as the basis for training sessions for staff who are working with people whose capacity to make particular decisions may be uncertain or questionable, and for training those working with people who wish to plan ahead or make their decisions in advance. It can be used in three main ways:

• as the basis for staff training sessions

• for individual learning and continuing professional development

• as a resource that staff can consult in the course of their day-to-day practice.

This set of materials is designed to cover the knowledge needed by those working in a range of social care and primary and community health settings, including front-line services such as home care, day centres, training centres, GP surgeries, community nursing services and health centres. The training focuses on how the Act will be used in practice by staff in these settings.

This training can be used in conjunction with the Core Training Set and the PowerPoint presentation on the MCA available at: www.dh.gov.uk/mentalcapacityact

You may also be interested in the training sets aimed at staff in other professional groups. These are:

• acute hospitals

• mental health services

• residential accommodation.

A range of training tools is provided here including case studies and exercises. This is to ensure that the materials can be used by front-line staff in a range of organisations. All sets of materials are available in hard copy, on CD-Rom and online at: www.dh.gov.uk/mentalcapacityact

The training set comprises five learning hours for continuing professional development purposes and there is a certificate included in the back of this pack which you can complete and forward to your professional training organisation or employer when you have worked through this training set.

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1.2 Introducing the Mental Capacity Act

The MCA is being implemented in two distinct phases in 2007.

In April 2007:

• the new Independent Mental Capacity Advocate (IMCA) service became operational in England only

• the new criminal offences of ill-treatment or wilful neglect came into force in England and Wales

• Sections 1–4 of the Act (the principles, assessing capacity and determining best interests), which are essential to how IMCAs do their work, also came into force but only in situations where an IMCA is involved and for the purposes of the criminal offences. Sections 1–4 of the Act will not apply in any other situations until October 2007

• the Code of Practice for the Act was issued and should be followed by those who must have regard to it in situations where an IMCA is involved or in relation to the new criminal offences.

In October 2007:

• all other parts of the Act come into force, including the IMCA service in Wales

• the Code of Practice will have statutory force for all of the Act not solely in relation to where an IMCA is involved and/or the criminal offences.

The MCA is different from the Mental Health Act 1983. Some people may be affected by both Acts. See the Mental Health Training Set for further details.

1.3 Using this training

The case studies and examples are included here for discussion and to show how the MCA and the Code of Practice will work in practice. They are not provided as examples of what must be done, as each assessment of capacity and best interests-led decision will be determined by individual circumstances.

Those using the training are encouraged to refer to the Code of Practice on the MCA for more detailed guidance, and references to the Code of Practice are included throughout.

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http://www.opsi.gov.uk/acts/acts2005/50009--b.htm#1

http://www.opsi.gov.uk/acts/acts2005/20050009.htm

http://www.opsi.gov.uk/acts/en2005/ukpgaen_20050009_en_cop.pdf



If you are using the PDF version of this training set you can move around it and to other documents mentioned in the text, such as the Code of Practice, by clicking on the underlined chapter headings or references. Where the PDF features recordings of the service users’ and carers’ quotations you can click on these to hear their words spoken.

In some places, this training set employs language and phrases used in the legislation. References to the relevant sections are included in the text. You can find an accessible glossary of relevant terms at the end of this training set.

This training has been developed in collaboration with service users, carers and practitioners who have provided some of the case examples we have used. The quotations included here express their opinions of the MCA. These are their views and are not a guide as to how the Act will be applied in specific situations. We are grateful for their comments.

1.4 Service users and carers

Service users have expressed the hope that the MCA will contribute to the empowerment and protection of vulnerable people. In talking to us, they have emphasised how service users who need help with day-to-day activities, often of an intimate nature, such as bathing and toileting, can feel powerless and frightened. They often don’t know how to change things or complain:

Isabel, who is in her 80s, has been a service user and a carer. She is active in campaigning for older people’s rights and comments:

“I think the issue of fear surrounds lots of people in their old age who are needing care. Fear of reprisals, fear of things getting worse, fear of losing what they’ve got.”

Service users were very interested in the role of independent mental capacity advocates (IMCAs) (see Part 8 of these materials). Many feel that this type of advocacy should be available to a broader group of people. They noted that family and friends aren’t always best placed to act in their best interests or to challenge the recommendations or decisions made by professional staff.

Jenny, a mental health service user, says:

“The most helpful are the IMCAs, because they are trained, because they are knowledgeable, and because they are independent.”

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Service users and carers were also very positive about advance decisions (see Part 9 of these materials):

Isabel comments:

“Advance decisions, well I’m seriously thinking about a living will myself... I think my family want me to make known my wishes and perhaps the Act will advance decision making in that way so that people can take more responsibility. I do think as a society we should take more responsibility for expressing our wishes, make known our wishes. We should face death more realistically than we do.”

Service users and carers commented that the attitudes and practices of many staff involved will have to change and better communication between service providers and service users will be essential:

Eileen, an older person who has been undergoing medical treatment in hospital, says:

“I think they should have some training in understanding that lay people have different ideas; that different things are important to lay people and professionals and that professionals should respect or, at the very least, listen to and try to understand what it is to have lived experience of an issue.”

Karen, who has severe physical disabilities, describes the qualities staff need to work with the Mental Capacity Act:

“They’d have to be very patient, be willing to listen, be willing to explore ways to communicate; particularly at that stage when they’re trying to make decisions, they want to be sure they’re making decisions based on what the person lacking capacity would really want, not what the professional thinks might be easier for a friend, social services or whatever...”

1.5 Which staff will be affected by the Mental Capacity Act?

The MCA applies to all people making decisions for or acting in connection with those who may lack capacity to make particular decisions. The staff who are legally required to have regard to the Code of Practice when acting in relation to a person who lacks, or who may lack, capacity are:

• people working in a professional capacity, e.g. doctors, nurses, social workers, dentists, psychologists and psychotherapists

• people who are being paid to provide care or support, e.g. care assistants, home care workers, support workers, staff working in supported housing, prison officers and paramedics

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• anyone who is a deputy appointed by the Court of Protection

• anyone acting as an IMCA

• anyone carrying out research involving people who cannot make a decision about taking part.

Exercise:

Discuss or write down how the Act might affect you in your work. Repeat this exercise again when you have completed the training set.

At this point, you have:

• listened to the views of people using services about the potential role of the MCA

• considered ways in which the MCA may affect your practice.

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2 Defining mental capacity 2.1 What is mental capacity?

Mental capacity is the ability to make a decision.

Mental capacity, under the Mental Capacity Act 2005 (MCA), is the ability to make a decision. The lack of capacity may be temporary or permanent and will include people with dementia, brain injury, learning disability and mental health needs, and those who are unconscious or barely conscious, whether due to an accident, being under anaesthetic or as a result of other conditions. A range of factors, such as a stroke, can affect a person’s capacity or ability to make a decision, and physical conditions such as an intimidating or unfamiliar environment can affect capacity. Trauma, loss and physical health problems can also alter a person’s capacity to make decisions.

BOX 1

The five core principles (Mental Capacity Act, Section 1; Code of Practice, Chapter 2)

1. A person must be assumed to have capacity unless it is established that they lack capacity.

2. A person is not to be treated as unable to make a decision unless all practicable (doable) steps to help them to do so have been taken without success.

3. A person is not to be treated as unable to make a decision merely because they make an unwise decision.

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 their best interests.

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 less restrictive of the person’s rights and freedom of action.

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http://www.opsi.gov.uk/acts/acts2005/20050009.htm




Karen says:

“Well, I think everybody has the right to make unwise decisions. A lot of the time disabled people – especially people with learning disabilities – they’re not allowed to make mistakes like the rest of the world. I know a lot of the time it’s because we want to protect people from making silly mistakes, getting into trouble or whatever, but I think you have the right to make mistakes.”

Marion, who cares for her daughter Anna, an adult with profound and multiple disabilities, adds:

“I welcome the assumption in the Act that all people have capacity and that each decision should be viewed on its own.”

Capacity can vary over time and according to what decisions need to be made.

Example 1:

Anna is a young woman with multiple impairments – both cognitive and physical. Anna does not use language to communicate, and does not have the cognitive ability to understand language – even in its most simple form. She would not understand questions put to her in picture format. However, Anna does communicate using emotional responses such as eye contact, laughter, turning her head away and not eating.

Anna’s capacity to make a decision varies according to the decision to be made.

Marion, her mother, points out:

“It is important that we respect Anna’s actions when she is indicating that she does not wish to do something – turns her head away when she does not like food or shows no interest in an activity. There are some things that she is not interested in making decisions about – for example, what colour clothing she wears. She cannot anticipate the future and while some decisions can be made on the basis of what she has enjoyed in the past, there are many decisions which are made on her behalf.”

Example 2:

May is a fit older woman who lives alone and receives some support from her family, while offering substantial care to a neighbour. However, a urinary tract infection causes her temporary confusion over a period of two weeks. She is uncertain about where she is and does not seem to recognise her

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daughter who visits her regularly. She temporarily loses her capacity to make decisions and, while she is unwell, her daughter manages her money for her, does her shopping and pays the milkman. However, once she has been treated with antibiotics, her confusion clears and she is able to manage her own finances again.

Example 3:

Ken is 78 and lives at home with his wife, Lucille. Ken’s memory is variable (he has dementia) and he has to be reminded to wash and told that he has already eaten. Lucille makes a lot of his day-to-day decisions for him. However, he still goes on his own to his local social club once a week with his neighbour where he meets with friends. Sometimes he loses a lot of money at card sessions at the club. Lucille wonders if she should take control of all his finances to limit his spending. This is causing considerable conflict between them. She consults the community nurse who comes round to dress Lucille’s leg ulcers.

What should the nurse say?

She could help Lucille to think that Ken’s decision about spending his money at cards is a separate decision which has to be assessed separately from his capacity to make other types of decisions (see Part 4 of these materials for an explanation of the legal position).

A lack of capacity cannot be established by a person’s age, appearance, condition or an aspect of their behaviour which might lead to unjustified assumptions about capacity.

Frances lives with anorexia nervosa. She comments:

“Because of their thin or emaciated appearance, individuals with eating disorders could be assumed to have regressed to a ‘child-like mentality’ and need to be treated as one might treat a child in the decision-making process. I have frequently been very child-like in my thinking and expressed wishes, but was able to be ‘adult’ in some areas of my thinking/decision making.”

Exercise:

Think of some service users you have been involved with in your work who might lack capacity at the moment. Does their capacity vary over time? Does it vary according to the decision they are making?

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2.2 Recording decisions about capacity (Code of Practice, 4.6–4.63)

All professional staff – that is, social workers, care managers, nurses, doctors and so on – involved in the care and treatment of a person who may lack capacity to make a particular decision should keep a record of long-term or significant plans made about capacity. The record should be made in the place where you regularly record details about a service user or patient such as a care plan, file or case notes. The record should show:

• what the decision was

• why the decision was made

• how the decision was made – who was involved and what information was used.

Recording decisions in this way will assist staff to demonstrate why they had a reasonable belief in the person’s lack of capacity. They will also help your colleagues and co-workers and anyone who may take over your work in your absence.

For care assistants or support staff making day-to-day decisions on a regular basis, no formal assessment procedures or records are required. Frequent decisions about washing, taking a person to the toilet or helping them to bed do not need to be recorded on every occasion. However, care plans should show that capacity to make decisions about these activities has been assessed at some point, is reviewed from time to time and that such decisions are being made in a person’s best interests, and that when that person gains capacity they will be able to consent or refuse consent for themselves.

If a decision is challenged, staff must be able to describe why they had a reasonable belief in the person’s lack of capacity at that time. It is therefore advisable to make notes of new decisions in a person’s file or case notes. This applies even to those day-to-day decisions which might not previously have been recognised as decisions about capacity.

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BOX 2

Example

Mr Patel has a severe form of Parkinson’s disease and needs to be helped to take a bath, go to the toilet and go to bed at night by support staff. Staff should record in the notes or case file that Mr Patel does not, at present, have the capacity to consent to this care and that decisions about his care are being made in his best interests. The record should show that his capacity to consent is checked at regular intervals and that staff do not assume that his lack of capacity is permanent.

In this instance, there is no requirement for Dina to record this decision about Sanjiv’s capacity because they were able to persuade him to go and did not have to take any action for which he lacked the capacity to consent.


• learnt how mental capacity is defined

• been introduced to the five core principles of the MCA

• discovered that mental capacity is time and decision specific.

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3 Using the Mental Capacity Act as part of screening processes When delivering care or treatment, staff should make an assessment of whether a person does or does not have capacity to consent to that care or treatment. Staff cannot know whether they are acting with the person’s consent or whether they are acting without consent if they do not do this assessment.

Assessment of capacity to make a decision is therefore an integral part of any assessment about care or treatment. You should assume a person has the capacity to make a specific decision unless there is evidence to show otherwise. Any relevant preliminary screening forms or standardised tools should include questions that consider matters of capacity. The trigger for an assessment of capacity is that a decision has to be made.

3.1 When is an assessment of capacity required?

As stated in the principles of the Mental Capacity Act, you should always start from an assumption of capacity. Doubts about a person’s capacity to make a decision can occur because of:

• the person’s behaviour

• their circumstances

• the concerns raised by someone else.

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BOX 3

Example

Mrs Nagy, aged 77, uses a wheelchair. She lives on her own in a flat that has been adapted to meet her needs and support workers help her with a range of tasks including washing and shopping. Apart from her mobility problems, which were caused by a road accident some years ago, she appears well and does a number of household tasks such as cooking and light housework herself. However, one of her support workers reports that when she changed Mrs Nagy’s bed last week, she found vegetables hidden at the bottom of the bed. She also noticed that the bin was full of what looked like food that had been prepared but not eaten. Mrs Nagy tells her support workers that she doesn’t want them to do her shopping any longer as she is now growing her own food to avoid dangerous toxins in the food they sell in the supermarket. The support worker is concerned about this and doubts that Mrs Nagy has the capacity to make this decision.

Mrs Nagy’s behaviour has changed sufficiently to cause concern, which needs to be communicated by the support worker to her supervisor. The supervisor can alert the care manager to these changes and they can make an assessment of Mrs Nagy’s capacity to make the decision to cancel her shopping service, as well as encouraging Mrs Nagy to contact her GP for a check-up.

Any doubts must be considered in relation to the specific decision to be made. Also, remember an unwise decision does not necessarily indicate lack of capacity.

Martin, who has learning disabilities, describes a decision that a professional thought was ‘unwise’:

“Forever I’ve been suffering from blackouts. Five or six years ago, I made the decision not to take my tablets any more and since then I haven’t had a fit. And I went back to the doctor to tell him I’d decided not to renew my prescription, not to take the tablets. He argued with me but then I told him that I’m over 21. It could come back and hit me I know but that’s my decision...”

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Exercise:

Think of an occasion when a service user took a decision that you thought to be unwise. What did you do? What was the outcome? With hindsight, what might you have done differently?

Exercise:

Write down some triggers that might make you think that a person for whom you are providing support may lack capacity.


• considered what might trigger an assessment of capacity to make a decision

• confirmed that an unwise decision does not necessarily indicate a lack of capacity.

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4 Assessing capacityThis process needs to be integrated into your usual assessment procedures. For some staff, it will become part of the Single Assessment Process at the overview assessment stage and beyond; for others, it may be part of the community care assessment (Section 47) of the NHS and Community Care Act 1990.

4.1 How is capacity assessed? (Mental Capacity Act, Section 3; Code of Practice, Chapter 4)

There are two questions to be asked if you are assessing a person’s capacity to make a particular decision.

BOX 4

The two-stage test of capacity (Code of Practice, 4.11–4.13)

1. Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain?

2. If so, is the impairment or disturbance sufficient that the person lacks the capacity to make that particular decision?

This two-stage test must be used and your records should show it has been used.

Remember: an unwise decision made by the person does not necessarily indicate a lack of capacity.

The presumption is always that a person has capacity. Deciding that a person lacks capacity to make a decision is a serious matter. A formal, clear and recorded process should be followed where an important decision is to be made. Day-to-day assessments of capacity may be relatively informal but should still be written down if a new decision about capacity in a particular situation is being made.

Any assessment of a person’s capacity must consider the following factors:

1. whether they are able to understand the information

2. whether they are able to retain the information related to the decision to be made

3. whether they are able to use or assess the information while considering the decision.

The person has to be able to do all three to make a decision and:

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4. they must have the ability to communicate that decision – this could include alternative forms of communication such as blinking an eye or squeezing a hand when verbal communication is not possible.

If the person being assessed is unable to do any one of the above, they are unable to make the decision for themselves.

4.2 Who assesses capacity?

Anyone caring for or supporting a person who may lack capacity could be involved in assessing capacity. This will include family members and carers as well as health and social care staff. Important and/or more complex decisions may require specialist opinions from specialist nurses, speech therapists, psychologists or doctors but, even when used, may not be the only form of assessment. Who you involve depends on individual circumstances.

BOX 5

Example

Mr Ali, aged 82, lives with his son and his son’s family. He has always been very fastidious and neat in his appearance but recently he has not had many baths for fear of falling. He is increasingly confused, owing to vascular dementia, and has problems with urinary incontinence that might be helped by a daily bath. You are a home care worker responsible for providing personal care but he refuses to have a bath when you visit.

• How would you assess capacity?

• Who would you involve in the assessment?

• Where might you seek advice?

• Where would you record your decision?

We suggest that in this case you would tell your manager or supervisor in the home care service. They would be likely to discuss the problem with the family and any care manager or community psychiatric nurse (CPN) involved in Mr Ali’s support. Either of these staff might involve Mr Ali’s GP. An assessment of Mr Ali’s capacity to make a decision about refusing a bath might draw on the views of the GP but it is unlikely that a consultant or psychologist would be involved in a decision of this nature. However, the family’s views would be very relevant as they are the people who know Mr Ali best.

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4.3 Legal decisions and common law tests of capacity

Although the MCA brings together much common law and establishes the way in which capacity will be assessed, some decisions will continue to be dealt with under common law, that is, law established through decisions made by courts in individual cases. Where a legal decision needs to be made, staff must be fully aware of those that are covered by the MCA and those that are covered by common law and other Acts.

There are several tests of capacity that have been produced following judgments in court cases: these are known as common law tests. They cover capacity to:

• make a will

• make a gift (but attorneys can also make gifts, see Part 9.2 of these materials)

• enter into litigation (take part in legal cases)

• enter into a contract

• enter into marriage.

Other professionals will need to be involved in administering these tests of capacity under common law. It is advisable that legal practitioners are consulted when people who may lack capacity are making a will.

Registrars will continue to decide if somebody has the necessary capacity to understand the marriage vows, and other Acts, for example, the Juries Act 1974, have been amended to include the MCA’s definition of lacking capacity. A lack of capacity to serve on a jury disqualifies somebody from jury service.

For more information on common law tests and their use, see the British Medical Association and Law Society book Assessment of Mental Capacity – Guidance for Doctors and Lawyers, second edition. Please check that you use the latest edition – as the law develops and decisions are made about individual cases, some of the guidance will change.

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http://www.bma.org.uk/ap.nsf/Content/Assessmentmental


BOX 6

Example

Lucy works as a home care worker and visits Rosa four times a week to prepare food for her, bath her and undertake a range of other care tasks. Rosa is 80 and quite confused but she seems to like Lucy and talks to her a lot about her mother who died of cancer 30 years ago. Rosa has two sons who live some distance away and visit occasionally. Rosa asks Lucy to help her make her will as she wants to make sure that most of her money goes to a charity supporting research into cancer.

• How should Lucy respond?

• Who should Lucy discuss this request with?

We suggest that Lucy talks to her manager and that the manager and Lucy talk to Rosa together, advising her to discuss this with a solicitor. She might need help to arrange this.

• Should Lucy tell Rosa’s sons? We suggest she asks Rosa if this is what she wants her to do. However, this is confidential information so, unless Rosa wants her to or unless they have a Lasting Power of Attorney (see Part 9 of these materials), Lucy should not inform Rosa’s sons. The solicitor will do a common law test to establish Rosa’s capacity to make a will.

Other decisions excluded from the MCA include:

• consent to sexual relations

• consent to divorce or dissolution of a civil partnership

• consent to a child being placed for adoption or to making an adoption order

• voting.

Other people cannot make these decisions on behalf of a person who is assessed as lacking capacity to make them.

4.4 Assessing capacity in practice

You must always bear in mind the five core principles and ensure that no one is treated as unable to make a decision unless all practical steps to help them have been exhausted and shown not to work.

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Steps to be taken (Code of Practice, 3.10–3.16)

• Provide all relevant information but do not burden the person with more detail than required. Include information on the consequences of making, or not making, the decision. Provide similar information on any alternative options.

• Consult with family and other people who know the person well on the best way to communicate, e.g. by using pictures or signing. Check if there is someone who is good at communicating with the person involved.

• Be aware of any cultural, ethnic or religious factors which may have a bearing on the individual. Consider whether an advocate (in Part 8 of these materials you will see that an independent mental capacity advocate is only likely to be involved in a limited number of cases, so we mean a general advocacy service here) or someone else could assist, e.g. a member of a religious or community group to which the person belongs.

• Make the person feel at ease by selecting an environment that suits them. Make sure it is quiet and unlikely to be interrupted. Arrange to visit relevant locations; for example, if the decision is about a hospital or short break stay, visit the place with them. See if a relative or friend can be with them to support them.

• Try to choose the best time for the person. Try to ensure that the effects of any medication or treatment are considered. For example, if any medication makes a person drowsy, see them before they take the medication, or after the effect has worn off.

• Take it easy. Make one decision at a time, don’t rush and be prepared to try more than once.

Marion, a carer whose daughter has multiple disabilities, says:

“It’s important to understand a person’s system of communication... this is especially important for people who have unique communication systems, e.g. people who communicate through emotional response or people with autism. Communication passports can be used to form a shared understanding of the system of communication.”

Ade, a retired social care worker who supports his adult child who has severe mental health problems, describes how he thinks staff assessing people under the MCA should approach their work:

“They need to have interpersonal skills and they need to listen to the patient. They need to understand cultural differences and they need to listen to the carer.”

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BOX 7

Example

Mrs Walazsewska is 78 years of age and has lived in England since 1943. English is not her first language. She now lives alone in sheltered accommodation and her daughter lives 30 miles away in another town.

Mrs Walazsewska had been fit and active until she fractured her femur (thigh bone). However, she is increasingly confused. On discharge from hospital she received care from the community nursing service. Following a multidisciplinary assessment, she was offered personal care for two hours a week to be provided by a private agency. However, she refused to be means tested to pay for this. The manager of the agency arrives for the assessment visit to be told by Mrs Walazsewska that she can’t afford her services. Bearing in mind the above points:

• What information can the home care manager give and in what format?

• As English is not Mrs Walazsewska’s first language, who else might she involve in discussions?

• Who might she report this to?

• What might she need to consider in her discussions with Mrs Walaszewska?

• What does she do next?

4.5 How do I assess capacity?

Anyone who is being assessed for capacity should be assessed at his or her best level of functioning for the decision to be taken. This will be achieved by taking the steps listed on page 20. Be aware that circumstances may change and an assessment of capacity may have to be repeated or reviewed over time and for different decisions.

The following list shows the range of areas to be considered. As always, the range of areas to be tested will be specific to the individual and their circumstances and the two-stage test of capacity must be applied. Do you remember what this is? Go back and check Box 4.

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Factors to be considered in assessing capacity

• General intellectual ability

• Memory

• Attention and concentration

• Reasoning

• Information processing

• Verbal comprehension and expression

• Cultural influences

• Social context

• Ability to communicate.

Not all of these factors need to be considered in every assessment of capacity although, for some formal assessments, a number of these factors will be relevant. A reasonable belief in a person’s lack of capacity to make a particular decision should be supported by judgements about some of these factors.

Each assessment of capacity will vary according to the type of decision and the individual circumstances. The more complex or serious the decision, the greater the level of capacity required. The questions in Box 8 must be addressed.

BOX 8

Questions to consider (Code of Practice, 4.44–4.49)

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

• Do they understand the consequences of making, or not making, the decision, or of deciding one way or another?

• Are they able to understand the information relevant to thedecision?

• Can they weigh up the relative importance of the information?

• Can they use and retain the information as part of the decision-making process?

• Can they communicate their decision?

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It is important that all people involved in assessing a person’s capacity should understand the nature and effect of the decision and any actions relating to the assessment.

Exercise:

Go back to the case example of Mrs Walazsewska on page 21. How would you use the questions above if you were the home care manager?


• been introduced to the two-stage test of capacity

• identified what needs to be considered when assessing capacity to make a decision

• discovered when legal advice should be taken about certain decisions

• considered what might help support a person when making a decision.

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5 Care planningMaking decisions for people who have been assessed as lacking capacity will become an important part of care planning as a result of the Mental Capacity Act 2005 (MCA). All decisions made on behalf of people who lack capacity need to be made in their best interests. Decisions may be made under the Act by people appointed to do so, such as attorneys, deputies and the Court of Protection (see Parts 9 and 10 of these materials), but will usually be made by staff involved in the care and treatment of the person concerned. Staff can also undertake any acts in connection with care or treatment which are made on behalf of a person who lacks capacity to consent if those acts are in a person’s best interests. In many cases of day-to-day care or treatment, best interests acts will follow directly from an assessment of a person’s lack of capacity to consent to that act of care or treatment.

The person who makes decisions on behalf of someone who lacks capacity is described in the Code of Practice as ‘the decision maker’.

5.1 Who is the decision maker in health and social care services?

The ‘decision maker’ is a shorthand term for someone who has to decide whether to provide care or treatment for someone who cannot consent because they lack the capacity to do so. The decision maker will vary depending on the individual’s circumstances and the type of decision involved.

Social care staff will be decision makers for many day-to-day situations.

They may also act as decision makers for longer-term decisions regarding the care of an individual who lacks capacity. Those making such decisions have some protection under the MCA (see Section 5 of the Act).

Health professionals will be decision makers for medical and related treatment, such as dental care and physiotherapy. ‘Treatment’ includes investigations such as X-rays, as well as procedures like operations and injections. However, doctors are unlikely to be decision makers for social activities or day-to-day care. Nurses will be the decision makers in relation to nursing care.

Remember, the person delivering the treatment or nursing care makes the decision about whether to deliver the care, even though the treatment may have been prescribed by someone else. Although decisions may result from discussions with other professionals or with the medical or nursing team, the person who delivers the treatment or care for somebody who lacks capacity is responsible for making the final decision to deliver that treatment or care in that person’s best interests.

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Family members and unpaid carers who live with or care for people who lack capacity to make decisions will often be the decision makers for many day-today acts such as what people eat or wear.

Exercise:

Write down three instances when you were recently a decision maker for service users.

There are protections in the MCA for staff making such decisions on behalf of people who lack capacity. More details are included in Section 5 of the MCA.

Exercise:

List any concerns you have regarding your personal liability and responsibility for decisions about capacity. Discuss with your line manager how you might be protected from liability and prosecution under the Act while carrying out your duties.

5.2 Best interests (Code of Practice, 5.1–5.69)

The MCA does not define best interests but identifies a number of factors that must be considered when determining the best interests of individuals who have been assessed as lacking capacity to make a particular decision or consent to acts of care or treatment. The MCA makes it clear that, when determining what is in someone’s best interests, you must not base the decision on the person’s age or appearance or make unjustified assumptions based on their condition.

The factors that must be taken into account when determining what is in someone’s best interests are set out in the best interests checklist (MCA, Section 4; Code of Practice, 5.13):

• Avoid making assumptions about someone’s best interests merely on the basis of the person’s age, appearance, condition or behaviour.

• Consider a person’s own wishes, feelings, beliefs and values and any written statements made by the person when they had capacity.

• Take account of the views of family and informal carers.

• Can the decision be put off until the person regains capacity?

• Involve the person in the decision-making process.

• Demonstrate that you have carefully assessed any conflicting evidence or views.

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• Provide clear, objective reasons as to why you are acting in the person’s best interests.

• Take account of the views of any independent mental capacity advocate.

• Take the less restrictive alternative or intervention.

BOX 9

Example

Darren, who is 28 and has severe brain damage, lives with his aunt and attends a day centre three days a week. The day centre staff are taking some of the service users to a local go-kart centre for a day. Darren’s aunt is keen for Darren to be involved in activities with other centre users but is concerned that he will not be able to manage a go-kart. Darren is excited at the idea of driving a go-kart.

Staff discuss the situation with Darren and his aunt and it is decided that a support worker who has a good relationship with Darren and understands how he communicates will accompany the group visiting the go-kart centre and will keep an eye on Darren.

At the go-kart centre, all those riding go-karts are required to wear a helmet. Darren says that he doesn’t want to wear one but the support worker makes a best interests decision and insists that he wears it as she knows that he will feel excluded and disappointed if he doesn’t take part in the activity. She uses signs and pictures to communicate to Darren that the helmet is for his protection and points out that all his friends from the day centre are wearing one.


• clarified the role of the decision maker

• learnt the importance of consultation and engagement when establishing a person’s best interests.

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6 Delivering day-to-day care and treatment

6.1 Best interests decisions and acts (Mental Capacity Act, Section 5; Code of Practice, Chapter 6)

Staff don’t always realise when they are deciding or acting to deliver appropriate care and treatment in the best interests of a person who lacks capacity to consent to the care or treatment. Many of these decisions or actions are day-to-day ones that staff are already carrying out on behalf of others.

Exercise:

In relation to day-to-day activities, what decisions or actions are you already taking on behalf of people who lack the capacity to consent? How might you change this because of the Act?

As noted above, staff will have statutory or legal protection for acts of care and treatment, providing that they can demonstrate they:

• have taken reasonable steps to assess capacity to make a decision

• reasonably believe that the person lacks capacity to make that decision

• reasonably believe that the decision is in their best interests.

However, staff will not be protected if they act negligently.

Acts in connection with personal care may include:

• assistance with physical care, e.g. washing, dressing, toileting, changing a catheter, colostomy care

• help with eating and drinking

• help with travelling

• shopping

• paying bills

• household maintenance

• those relating to community care services.

Acts connected to healthcare and treatment may include:

• administering medication

• diabetes injections

• diagnostic examinations and tests

• medical and dental treatment

• nursing care

• emergency procedures.

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Exercise:

You must also consider whether you could provide the care or treatment in a less restrictive way. For example, could a person be given a shower that they can manage themselves rather than a bath for which they will need to be supervised? The three conditions described earlier must also be met. What are these conditions?

Marion offers an example of when she has to make a decision about care and treatment for her daughter Anna, who has cognitive and physical impairments:

“Many decisions will be straightforward; however, there may be occasions when we will need to weigh up that Anna is indicating that she does not like something and her long-term best interests – for example, she indicates that she does not like having her teeth cleaned or going to the dental hygienist. However, it would not be in her best interests to stop these activities.”

Exercise:

What are your thoughts on this example? Have you come across a similar situation in your work? If so, how did you decide what was in the patient’s/service user’s best interests?

6.2 Recording day-to-day decisions

Many of these day-to-day decisions don’t get recorded and, as noted in Part 2 of these materials, you are not expected to make a formal record of every minor decision every time you give someone a daily bath or do their shopping for them. Such ongoing care should be recorded in their care plan.

However, you are advised to make a record or tell your supervisor if you make a new decision for someone, take on a new care task or the care or treatment is substantial or long term.

Find an example of a day-to-day decision you made in someone’s best interests which you think should have been recorded and an example of a day-to-day decision which was already recorded in the person’s care plan.


• considered the role of the Mental Capacity Act in relation to day-to-day support decisions

• noted the importance of recording your practice.

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7 Limitations on restraint (Mental Capacity Act, Sections 5 and 6; Code of Practice, 6.11–6.19)

7.1 What is restraint?

In circumstances where restraint needs to be used, staff restraining a person who lacks capacity will be protected from liability (for example, criminal charges) if certain conditions are met. There are specific rules on the use of restraint, whether verbal or physical, and the restriction or deprivation of liberty, as outlined in the Code of Practice (6.11–6.19 and 6.40–6.53) and Department of Health and Welsh Assembly Government guidelines (www.dh.gov.uk/assetRoot/04/06/84/61/04068461.pdf and http://new.wales.gov.uk/docrepos/40382/40382313/childrenyoungpeople/ childrenfirst/603793/framework-rpi-e.pdf?lang=en).

If restraint is used, staff must reasonably believe that the person lacks capacity to consent to the act in question, that it needs to be done in their best interests and that restraint is necessary to protect the person from harm. It must also be a proportionate or reasonable response to the likelihood of the person suffering harm and the seriousness of that harm. Restraint can include physical restraint, restricting the person’s freedom of movement and verbal warnings, but cannot extend to depriving someone of their liberty (the difference between restraint and deprivation of liberty is discussed in Part 7.2, below).

Restraint may also be used under common law in circumstances where there is a risk that the person lacking capacity may harm someone else.

BOX 10

Examples

1. Mr Evans, who has severe dementia, has been prescribed medication for a heart condition, which requires his blood pressure to be monitored regularly, and occasional blood tests to be carried out. He does not like being ‘messed about with’ and also is unable to keep still for long enough for the tests to be done. Both his GP and the practice nurse are concerned that his medication may cause harm if it is not prescribed at the correct level and balanced against other drugs he has been prescribed. On a visit to the health centre, after trying without success all possible means to explain to Mr Evans what is happening and why, the nurse asks two of the other practice nurses to hold him still just for long enough for the tests to be carried out. In doing so, they are acting in his best interests (and the test is necessary to prevent harm to Mr Evans), acting proportionately in response to the likelihood and seriousness of harm, and would be protected from liability in restraining him in this way.

29

http://new.wales.gov.uk/docrepos/40382/40382313/childrenyoungpeople/childrenfirst/603793/framework-rpi-e.pdf?lang=en

http://www.dh.gov.uk/assetRoot/04/06/84/61/04068461.pdf

http://new.wales.gov.uk/docrepos/40382/40382313/childrenyoungpeople/childrenfirst/603793/framework-rpi-e.pdf?lang=en

http://www.dh.gov.uk/assetRoot/04/06/84/61/04068461.pdf





BOX 10 (continued)

2. A support worker carries out a range of domestic tasks for Elsa, who has multiple disabilities including brain damage, following an accident and lives in extra care housing. In order to be able to vacuum clean the living room carpet more efficiently, he moves Elsa into the bedroom and locks the door so she is not in his way while he cleans. He does not consult her about this. This is restraint undertaken in order to allow the support worker to complete his work more easily and is not acceptable practice – it also contravenes health and safety legislation. The support worker is not covered against possible criminal charges of assault and risks dismissal.

Positive practice in this case would be to ask Elsa if she would mind moving while he cleans the living room. If she doesn’t understand or doesn’t want to move, he will have to vacuum around her or clean when she is out.

Exercise:

Think about your work and the situations where you have used restraint. How would you objectively justify your actions? If you were unsure about using restraint with an individual, in a particular situation, what would you do?

7.2 The Bournewood Case

This is a legal case that tested the boundary between appropriate restraint or restriction and the loss of human rights under Article 5 of the European Convention on Human Rights – the right to liberty. The Government is seeking to amend the Mental Capacity Act (MCA) to take into account the issues raised by this case.

The patient was in hospital and lacked the capacity to say whether he would stay in hospital or accept treatment. He was not detained under the Mental Health Act 1983.

The European Court of Human Rights determined: “the key factor in the present case (is) that the health care professionals treating and managing the applicant exercised complete and effective control over his care and movements”. The Court found “the concrete situation was that the applicant was under continuous supervision and control and was not free to leave”.

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The distinction between restraint and the loss of liberty, which took this case into the European Court, is “one of degree and intensity, not one of nature and substance”. Any deprivation of liberty can only be lawful if accompanied by safeguards similar to those surrounding detention under the Mental Health Act 1983.

The Department of Health (December 2004) and the Welsh Assembly Government (January 2005) have issued guidance and a briefing sheet, which should already be included in service providers’ policies. At the time of writing, the Government is taking legislation through Parliament to establish a new set of safeguards in the MCA for people who need to be deprived of their liberty in their best interests and who cannot make the necessary decisions for themselves.

BOX 11

If you have concerns that anyone is being inappropriately detained, express your worries to your manager in the first instance. You can use your local whistle-blowing procedures if your concerns are not appropriately dealt with. Each social care organisation and primary care trust or local health board in Wales should have adult protection procedures which you could consult. Other organisations to contact include the Office of the Public Guardian, your local Adult Protection Unit (contact the local authority), the Commission for Social Care Inspection (CSCI), the Care Standards Inspectorate in Wales, the Healthcare Commission and Healthcare Inspectorate Wales.


• confirmed that restraint may only be used in limited circumstances

• learnt that the use of restraint must always be recorded

• been alerted to the Bournewood Case and the need to seek advice in such circumstances.

31

http://www.wales.nhs.uk/sites3/Documents/438/WHC%5F2005%5F005The%20BournewoodCase%2Epdf

http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4136790


8 Independent mental capacity advocates

8.1 The role of the independent mental capacity advocate (Mental Capacity Act, Sections 35–41; Code of Practice, Chapter 10)

The Mental Capacity Act (MCA) introduces a duty on the NHS and local authorities to involve an independent mental capacity advocate (IMCA) in certain decisions. This ensures that, when a person who lacks capacity to make a decision has no one who can speak for them and serious medical treatment or a move into accommodation arranged by the local authority or NHS body (following an assessment under the NHS and Community Care Act 1990) is being considered, an IMCA is instructed.

The IMCA has a specific role to play in supporting and representing a person who lacks capacity to make the decision in question. They are only able to act for people whose care or treatment is arranged by a local authority or the NHS. They have the right to information about an individual, so they can see relevant health and social care records.

The duties of an IMCA are to:

• support the person who lacks capacity and represent their views and interests to the decision maker

• obtain and evaluate information, both through interviewing the person and through examining relevant records and documents

• obtain the views of professionals and paid workers providing care or treatment for the person who lacks capacity

• identify alternative courses of action

• obtain a further medical opinion, if required

• prepare a report (that the decision maker must consider).

In England, regulations have extended the role of IMCAs so they may also be asked to represent the person lacking capacity where there is an allegation of or evidence of abuse or neglect to or by a person who lacks capacity. In adult protection cases, an IMCA can be appointed even though the person has family or friends.

Similarly, the regulations also allow IMCAs to contribute to reviews for people who have been in accommodation arranged by the local authority or NHS body or who have been in hospital for more than 12 weeks and who have nobody else to represent them.

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The local authority or NHS body may instruct an IMCA to represent the person lacking capacity in either adult protection cases or accommodation reviews if they consider that it would be of ‘particular benefit’ to the person.

The National Assembly for Wales has also extended the role of IMCAs in Wales, to cover accommodation reviews and adult protection cases.

BOX 12

IMCAs always represent the interests of:

• those who have been assessed as lacking capacity to make a major decision about serious medical treatment or a longer-term accommodation move, if they have no one else to speak for them other than paid carers, and if their care or accommodation is arranged by their local authority or NHS.

IMCAs may represent the interests of:

• those who have been placed in accommodation by the NHS or local authority, and whose accommodation arrangements are being reviewed, and/or

• those who have been or are alleged to have been abused orneglected or where a person lacking capacity has been alleged orproven to be an abuser (even if they have friends or family).

An IMCA is not a decision maker for the person who lacks capacity. They are there to support and represent that person and to ensure that decision making for people who lack capacity is done appropriately and in accordance with the MCA.

In England, the local authority area where a person currently is (e.g. in hospital) is responsible for making the IMCA service available. In Wales, local health boards have this responsibility. If the decision is about treatment, the relevant NHS body must instruct an IMCA, if it is about a move it will be either the local authority or the NHS body.

To contact an IMCA, look for details on the IMCA website.

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http://www.dh.gov.uk/en/Policyandguidance/Healthandsocialcaretopics/Socialcare/IMCA/index.htm


BOX 13

Example

Hannah is a young woman with severe learning disabilities who visits the dentist following a tooth infection. She has always been reluctant to visit the dentist who discovers that the decay is so widespread that he recommends an extraction of all her teeth. He considers this to be a serious medical treatment decision within the MCA’s definition and understands that he now needs to instruct an IMCA to support and represent Hannah as she has nobody other than paid staff who could do so. He needs to contact the local IMCA service, details of which should be available from the primary care trust, local health board, or the local authority.

How would you contact your IMCA service?


• noted that there is a duty to instruct an IMCA in certain circumstances

• identified who an IMCA can represent

• noted that an IMCA is not a decision maker

• confirmed that the local authority or local health board where the person is currently living is responsible for commissioning the IMCA service

• identified who instructs an IMCA

• noted that the IMCA’s report must be considered.

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9 Planning for future care and treatment

9.1 Advance decisions to refuse treatment (Mental Capacity Act, Sections 24–27; Code of Practice, Chapter 9)

The Mental Capacity Act 2005 (MCA) requires that advance decisions are made in a particular way. It is essential that professionals involved in the care of a person who lacks capacity understand the difference between an advance decision to refuse treatment and other expressions of an individual’s wishes and preferences.

An advance decision to refuse treatment enables an adult to make treatment decisions in the event of their losing their capacity at some time in the future. Such a decision properly made is as valid as a contemporaneous decision (made at the time) and so it must be followed, even if it would result in the person’s death. If an advance decision involves refusing life-sustaining treatment, it has to be put in writing, signed and witnessed but, otherwise, advance decisions can be verbal and do not need to be signed or witnessed if they are written down.

Even in the absence of an advance decision, people’s views and wishes, whether written down or not, should be used to assist in planning appropriate care for the individual and making decisions in their best interests. Such statements of wishes and feelings are important, particularly if they are written down, but are not legally binding in the same way as advance decisions.

BOX 14

Example

Michaela, aged 74, is partially paralysed following a stroke and is treated in hospital following operations for a fracture. A nurse applies a vacuum dressing to the wound but Michaela finds it painful and uncomfortable and asks the nurse not to use it again under any circumstances. This request is noted in Michaela’s notes. Michaela is treated in hospital again a year later following another stroke when her operation scars are again a problem. On this admission, she is very confused and is not able to communicate clearly with staff. She is assessed as lacking capacity to consent to treatment. The doctor on duty suggests that a vacuum dressing be applied. However, the nurse notes from Michaela’s records that she has said in the past that she does not want this treatment ever again. This is an advance decision that must be followed as Michaela had capacity to make the advance decision at the time it was made.

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Jenny comments:

“In terms of advance decisions, where someone’s anticipating that at some point they’re going to lack capacity, I think that’s a really good thing. Because you often get situations where people verbally express what their wishes are to relatives, or carers, or people who have an emotional attachment and then, if they’re in a situation where they lack capacity that person’s not necessarily able to make a decision in the best interests for them because they are too emotionally involved. And so if someone can put something in writing beforehand and make sure that that is followed then that’s essentially a really good idea, it’s a really good thing.”

Staff risk legal action if they ignore an advance decision. A formally registered Lasting Power of Attorney (LPA) (see Part 9.2 of these materials) will override an advance decision if it has been made after the advance decision, and gives the attorney the right to consent to or refuse the treatment specified. An advance decision will also be withdrawn if the individual made the advance decision and then did something which is clearly inconsistent with it.

BOX 15

Example

Mrs Lewis made an advance decision about not wanting surgery if she had cancer and couldn’t give consent or had lost capacity. In later life, she became very confused. When she was diagnosed with breast cancer, her daughter, who did not share the same views as her mother, said she would fight for her mother to have surgery if this became necessary. Mrs Lewis’ sister was very upset by this and raised it with Mrs Lewis’ GP, telling him about the advance decision, which Mrs Lewis had written down and showed to her GP.

In this case, primary care staff were guided by Mrs Lewis’ advancedecision. She was treated as she wished with chemotherapy andradiotherapy, but did not undergo surgery.

As part of empowering service users, care staff need to develop different ways of promoting, implementing and recording this form of advance planning. NHS trusts and voluntary groups are developing guidance on the use of advance decisions and expressions of wishes.

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For more information about advance decisions to refuse treatment, see Part 9 of the Core Training Set.

Exercise:

Think about your own healthcare in the future. Are there aspects of treatment you might not want to receive? How would you describe the circumstances under which you would want treatment to be withheld?

9.2 Lasting Power of Attorney (LPA) (Mental Capacity Act, Sections 9–14; Code of Practice, Chapter 7)

Under an LPA, an individual can appoint another person to act on their behalf in relation to certain decisions regarding their financial, welfare and healthcare matters. LPAs replace the Enduring Power of Attorney. Forms and guidance on LPAs can be found at: www.guardianship.gov.uk or www.publicguardian.gov.uk (from October 2007).

Isabel says:

“I made my daughter responsible for me... because I realised how important it was. I trust her implicitly.”

What is a Lasting Power of Attorney?

In order to be valid, an LPA must be registered with the Public Guardian and on the prescribed form. An LPA is a formal, legal document. There are two different LPAs to cover a range of circumstances. These are:

• personal welfare (including healthcare decisions)

• property and affairs (financial matters).

A personal welfare LPA will only take effect when a person has lost capacity to make this sort of decision and the LPA has to be registered with the Office of the Public Guardian. If it is not registered, it cannot be used. An LPA concerning financial matters will take effect immediately it is registered unless the donor specifies that it should not take effect until they lose capacity to make these decisions.

The person making the LPA is the donor who donates or hands over responsibility to make decisions under specified circumstances. The person appointed to make the decisions under the LPA is the donee, also known as the attorney in the Code of Practice. There are a number of restrictions on attorneys holding LPAs depending on the type of LPA: for example, there are restrictions on gifts (see below). One attorney may hold a number of LPAs for

37

http://www.guardianship.gov.uk

http://www.publicguardian.gov.uk





different people; for example, a daughter can have an LPA for both her parents. A person can choose one or a number of people to hold an LPA, such as their partner and adult children.

Who can be an attorney?

An attorney could be a family member, friend or professional, such as a lawyer. The Code of Practice advises that health and social care staff should not act as attorneys unless they are also close relatives of the person who lacks capacity.

Ade, who is retired and has a child with mental health problems, comments:

“The LPAs, not specifically to me, but to people who have property and people who have children and who are elderly may find themselves in a situation where if they know that their mental capacity will be threatened in later life, if they will suffer from Alzheimer’s and diseases of old age it would be helpful if they could make a will beforehand... or if they could appoint LPAs or whoever to look after their affairs this I think would be very, very helpful for them. It will avoid confusion and bickering among the family.”

Attorneys must be over 18 years old and not be bankrupt (for property and affairs LPAs only). Most attorneys will be named individuals. However, for property and affairs LPAs, the attorney could be a trust or part of a bank. More than one individual may be appointed to act either separately or together.

BOX 16

Example

Peter and Graham have been partners for the last ten years. Peter’s father’s death from cancer was protracted and painful. Peter has been a heavy smoker and fears a similar death. He asks Graham to act as his attorney to make decisions about treatment on his behalf should he lack the capacity to do so in the future. Peter makes a personal welfare LPA, appointing Graham to refuse life-sustaining treatment on his behalf.

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Limitations on LPAs

It is important to remember that an LPA may describe treatment that the individual doesn’t want but it cannot give attorneys the power to demand a specific treatment that healthcare professionals do not believe clinically necessary or appropriate.

An attorney can only make certain gifts from the property and estate of the owner, for example to friends and relatives (including the attorney), on customary occasions such as birthdays, Christmas, Diwali or any religious festival the person lacking capacity would be likely to celebrate. Any customary gift or charitable donation must be reasonable in the circumstances and take into account the size of the estate. Limitations may also be specified in the LPA.

9.3 Enduring Power of Attorney (Mental Capacity Act, Schedule 4; Code of Practice, Chapter 7)

Enduring Powers of Attorney (EPAs) were established by the Enduring Powers of Attorney Act 1985. They allow the appointed attorney to manage property and financial affairs on behalf of the donor. At the onset of the donor’s incapacity, the attorney must register the EPA with the Public Guardian in order for their authorisation under the EPA to continue. No new EPAs can be set up after the MCA is implemented, but existing EPAs will continue to be valid whether registered or not (Code of Practice, Chapter 7). Donors can choose to replace their existing EPA with an LPA.


• learnt when an advance decision is valid

• learnt when an LPA is valid

• reflected on the possible implications for your own care and treatment in the future

• discovered the role and powers of a person who has been given an LPA.

39

http://www.opsi.gov.uk/acts/acts2005/50009--e.htm#sch4




10 Safeguards Staff need to know what safeguards are available for those affected by the Mental Capacity Act (MCA) so that they can inform service users and carers about opportunities to report abuse, raise complaints and resolve disputes.

10.1 New criminal offences of ill-treatment or wilful neglect (Mental Capacity Act, Section 44; Code of Practice, Chapter 14)

The MCA creates new criminal offences of ill-treatment or wilful neglect for the following:

1. people who have the care of a person who lacks capacity

2. an attorney acting under a Lasting Power of Attorney (LPA) or Enduring Power of Attorney (EPA)

3. a deputy appointed by the court.

Allegations of offences may be made to the police or the Office of the Public Guardian. They can also be dealt with under adult protection procedures (via adult services in social services departments). The penalty for these criminal offences may be a fine and/or a sentence of imprisonment for up to five years.

Isabel says:

“I was pleased to see that the Act introduces a new criminal offence of ill-treatment or neglect of a person. I’m so pleased to see that within the Act because we’ve found it very difficult to pinpoint how some retribution can take place and this makes it a criminal offence. It’s a step forward.”

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BOX 17

Example

Mabel has Parkinson’s disease and dementia. She lives with her son,Michael, who is her main carer and welfare attorney under an LPA. A community nurse regularly visits Mabel to treat her leg ulcers. She is concerned that Mabel is displaying bruises and other injuries,including cigarette burns. She wonders if Michael is assaulting Mabelwhen he is drunk, as she has noticed numerous empty bottles ofalcohol in the house.

The nurse alerts her manager and they contact the police and the localAdult Protection Service. An investigation is carried out and Michael ischarged with the ill-treatment of Mabel. The local authority instructs anindependent mental capacity advocate (IMCA) to represent Mabel as,although she has a relative, he is involved in the charges. In addition,the court, in conjunction with the Public Guardian, also later takes stepsto terminate the LPA. Adult services were alerted early on andalternative support for Mabel is put in place.

10.2 The Court of Protection (Mental Capacity Act, Part 2; Code of Practice, Chapter 8)

The Court of Protection is a specialist court with powers to deal with matters affecting adults who may lack capacity to make particular decisions. The Court is able to hear cases at a number of locations in England and Wales. It covers all areas of decision making under the MCA and can determine whether a person has capacity in relation to a particular decision, whether a proposed action would be lawful, whether a particular act or decision is in a person’s best interests and the meaning or effect of an LPA in disputed cases.

The Court of Protection plans to be an accessible, regional court. It aims to be informal and quick. It takes over the duties of the former Court of Protection and matters regarding healthcare and personal welfare which were previously dealt with by the High Court. The Court charges a fee for applications – information on fees and forms are available on the Court’s website at: www.guardianship.gov.uk or www.publicguardian.gov.uk (from October 2007).

It is expected that the Court of Protection will only be involved where particularly complex decisions or difficult disputes are involved.

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http://www.opsi.gov.uk/acts/acts2005/50009--c.htm


Either the Court of Protection or the Family Court may deal with health and welfare decisions concerning 16 and 17-year-olds who lack capacity to make particular decisions. The Court of Protection will continue to deal with decisions regarding the financial affairs of children lacking capacity.

BOX 18

Example

Matty appointed her son Joe to manage her financial affairs under an LPA. Matty now has dementia. The rest of the family is concerned that Joe is frequently using Matty’s money to purchase expensive holidays. Joe and his wife accompany Matty on these trips. The other family members say the holidays do not benefit Matty but instead appear to give Joe and his wife an opportunity to have free holidays at Matty’s expense. Relationships between Joe and the rest of the family are becoming increasingly difficult, making it hard for them to reach agreement on other decisions that need to be taken about Matty’s care and treatment. The home care service has told Matty’s daughter that it is owed a large sum of money. Recently, Joe has bought a villa in Spain and intends to move out there with his mother so she can enjoy the sun. He has put her house on the market.

Matty’s daughter asks the Court of Protection to appoint a deputy to make best interests decisions about Matty’s finances over the next two years. She suggests that Matty’s solicitor should take on this role.

10.3 Court-appointed deputies

What is a court-appointed deputy? (Mental Capacity Act, Section 16(4)(a))

The MCA requires the Court to make a decision where possible. However, the Court might decide that it is appropriate to appoint a deputy. Deputies are appointed by the Court of Protection to make ongoing decisions on behalf of a person who lacks capacity to make those decisions.

A deputy can be appointed to deal with financial matters and/or personal welfare. The appointment of a deputy could take place, for example, where no Lasting Power of Attorney exists or there is a serious dispute among carers that cannot be resolved in any other way. The appointment of a deputy is

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limited in scope (what it can do) and duration (time). This is to reflect the principle of the less restrictive intervention.

A deputy can be a family member, or any other person (or in property and affairs cases a trust) the Court thinks suitable.

A deputy must act with regard to the Code of Practice, in accordance with the Act’s principles and in the person’s best interests.

10.4 Resolving disputes

The Court of Protection will only act in disputes when alternative solutions to resolving them have been considered and tried. This should happen before an application to the Court of Protection. The Court will consider if appropriate alternatives have been pursued when an application is made. The Court decides which applications it will accept.

Alternative methods for resolving disputes include the following:

• disputes between family members – may be dealt with informally or through mediation

• disputes about health, social or other welfare services – may be dealt with by informal or formal complaints processes

• independent advocacy services may be able to help resolve a dispute.

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BOX 19

Example

Clive, a young man with learning disabilities, has been discussing moving into a group home with staff and other service users at the centre he attends twice a week. A place in one of the group homes is now available and Clive is friendly with the other residents. However, his father objects to this plan as he thinks that Clive is not responsible enough to move out of the family home. The care manager and the community nurse (learning disability) support this opportunity for Clive’s personal development and consider seeking permission to apply to the Court of Protection on his behalf. However, after discussing the situation with his parents, the workers decide that a resolution can be reached through negotiation, which would benefit Clive. Following a number of meetings with Clive, his parents and the other residents in the group home, it is agreed that Clive’s ability to live away from his parents’ home will be assessed by a number of short stays in the group home which will be monitored by centre staff.

Disputes regarding certain serious medical treatments may go directly to the Court of Protection.

10.5 The Public Guardian

The Public Guardian is a new office with a range of functions that contribute to the protection of people who lack capacity to make certain decisions. These include:

• keeping a register of LPAs and EPAs

• monitoring attorneys

• receiving reports from attorneys and deputies

• keeping a register of orders appointing deputies

• supervising deputies appointed by the Court

• directing Court of Protection visitors

• providing reports to the Court

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• dealing with enquiries and complaints about the way deputies or attorneys use their powers

• working closely with other agencies to prevent abuse.

Isabel says:

“I think the new Public Guardian opportunity for complaints is a good one. But I fear it will remain hidden from the people who need to know about it, as have many of the complaints systems in the past. And I think that in order to make that part of the Act meaningful, a new think, a rethink will have to take place as to how we inform people at the grass roots, as to how they can access those processes which they find intimidating.”

The Public Guardian can be contacted at: www.guardianship.gov.uk or www.publicguardian.gov.uk (from October 2007).

10.6 Court of Protection visitors

BOX 20

Court of Protection visitors

These individuals provide independent advice to the Court of Protection and the Public Guardian on matters arising from the exercise of powers under the MCA.

They will have a role in the investigation of allegations of abuse of a person who lacks capacity. Their visits will also include checks on the general well-being of a person who lacks capacity. They will also help and support attorneys and deputies.

10.7 Raising concerns and complaints

The Court of Protection only deals with complaints when all other avenues have been tried. So if a care worker, for example, wants to complain that they have been asked to do something that seems to be against the Act, then they can contact the Court of Protection, use whistle-blowing procedures or contact the local Adult Protection Service (through the local authority) or the Commission for Social Care Inspection or Care and Social Services Inspectorate for Wales. Other sources of help include telephone advice from the Action on Elder Abuse helpline or Witness.

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http://www.csci.org.uk/

http://www.csiw.wales.gov.uk/index.asp

www.popan.org.uk/

http://www.elderabuse.org.uk/



• been introduced to the new offences of ill-treatment and wilful neglect

• clarified the role of the Court of Protection, court-appointed deputies and visitors

• considered how disputes may be addressed at local level and what to do if this fails

• noted the functions of the Office of the Public Guardian.

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11 Children and young people 11.1 Young people under the age of 16

The Mental Capacity Act 2005 (MCA) does not usually apply in relation to children younger than 16 who do not have capacity. Generally, people with parental responsibility for such children can make decisions on their behalf under common law. However, the Court of Protection has powers to make decisions about the property and affairs of a person under 16 who lacks capacity within the meaning of the MCA (see Part 4.1 of these materials) if it is likely that the person will still lack capacity to make these types of decisions when they are 18.

11.2 Young people aged 16 and 17

The MCA overlaps with provisions made under the Children Act 1989 in some areas. There are no absolute criteria for deciding which route to follow. An example of where the MCA would be used would be when it is in the interests of the young person that a parent or, in some cases, someone independent of the family, is appointed as a deputy to make financial or welfare decisions.

This could apply when a young person has been awarded compensation and a solicitor is appointed as a property and affairs (financial) deputy to work with a care manager and/or family members to ensure that the award is suitably invested to provide for the young person’s needs throughout their lifetime.

Another example would be where the Court of Protection is asked to make a best interests decision where there is a dispute between those with parental responsibility for a young person and those treating or caring for the young person and the dispute cannot be resolved in any other way.

Under the MCA, only people who have reached the age of 18 can make Lasting Powers of Attorney and advance decisions. While 16 and 17-year-olds who have capacity may give or refuse consent to treatment at the time it is offered, they cannot make advance decisions under the MCA. However, any views or preferences they express when they have capacity should be considered when making a best interests decision.

A 16 or 17-year-old who lacks capacity to consent can be treated under Section 5 of the MCA. The person providing care or treatment must follow the Act’s principles and act in a way that they reasonably believe to be in the young person’s best interests. Parents, others with parental responsibility or

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anyone else involved in the care of the young person should be consulted unless the young person does not want this, or this would otherwise breach their right to confidentiality. Any known views of the young person should also be taken into account. If legal proceedings are required to resolve disputes about the care, treatment or welfare of the young person aged 16 or 17 who lacks capacity, these may be dealt with under the Children Act 1989 or the MCA.

BOX 21

Example (Code of Practice, 12.7, 12.23–12.25)

Katy is 17 and has profound learning disabilities and lacks the capacity to decide where she should live. Her parents are divorcing and do not agree on where Katy should live. In this case, it may be appropriate for the Court of Protection to deal with the disputed issue. This is because an order made in the Court of Protection could continue into Katy’s adulthood whereas any orders made by the Family Court under the Children Act 1989 will expire on Katy’s 18th birthday.


• confirmed that the MCA generally only applies to people aged 16 and over

• discovered that the Court of Protection can be involved in decisions about someone under 16 if they are likely to continue to lack capacity to make those decisions when they are 18

• learnt that only people of 18 and over can make Lasting Powers of Attorney and advance decisions under the MCA

• clarified that a 16/17-year-old who lacks capacity can be treated under the MCA.

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12 Research(Mental Capacity Act, Sections 30–34; Code of Practice, Chapter 11)

There are clear rules about involving people in health and social care research studies when they are not able to consent to taking part. A family member or carer (the consultee) should be consulted about any proposed study. People who can be consultees include family members, carers, attorneys and deputies, as long as they are not paid to look after the person in question and their interest in the welfare of the person is not a professional one. If they say that the person who lacks capacity would not have wanted to take part, or to continue to take part, then this means that the research must not go ahead.

If there is no such person who can be consulted, the researcher must find someone who is not connected with the research who can fulfil this role instead. Guidance will be available to researchers about how to go about this. Again, if the consultee says that the person would not have wanted to take part or continue to take part, the research must not go ahead.

The research has to be approved by the relevant research ethics committee. A researcher must stop the research if at any time they think that one of the MCA s31 requirements is not met (i.e. the research must relate to an impairing condition, have potential to benefit the person lacking capacity or be intended to provide knowledge about the same or a similar condition). This means that the researcher needs to understand the basis on which the research approval is given and ensure not only that the research is approved but that these requirements continue to be met throughout the period of the research. It is good practice for staff to ask to see evidence that the research has received approval.

If the person who lacks capacity appears to be unhappy with any of the activities involved in the research, then the research must stop.

NB: There are separate rules for clinical trials.

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http://www.mrc.ac.uk/PolicyGuidance/EthicsAndGovernance/ClinicalResearchGovernance/PolicyonUKClinicalTrialsRegulations/MRC002541





BOX 22

Example

Mr O’Brien has a severe form of Parkinson’s disease and is confused and often distressed. Claire, a nurse, is undertaking a study as part of her university course and has received approval from the relevant ethics research committee. She asks Mr O’Brien’s son if she can talk to his father and observe his reactions to his care. Mr O’Brien’s son says that she must ask for his father’s agreement. However, when approached, Mr O’Brien becomes agitated. Mr O’Brien’s son tells Claire that Mr O’Brien’s behaviour can be interpreted as an objection and she cannot include him in her research. Other participants in the study show no signs of objecting nor do others consulted express any opposition so Claire is able to proceed with a good number of other participants in her research.


• established that research can go ahead if it has approval from a relevant research ethics committee

• noted that if the individual appears unhappy with any aspects of the research, it must stop

• confirmed that if a consultee says the research must not go ahead because the person would have objected, then the research cannot proceed.

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13 Sharing information13.1 Confidentiality

(Code of Practice, Chapter 16)

People making decisions on behalf of people who lack capacity will often need to share personal information about the person lacking capacity. This information is required in order to ensure that decision makers are acting in the best interests of the person lacking capacity.

When releasing information, the following must be considered:

1. Is the person asking for the information acting as an agent on behalf of the person who lacks capacity?

2. Is disclosure in the best interests of the person who lacks capacity?

3. What kind of information is being requested?

BOX 23

Example

Mr Yu is in the later stages of Alzheimer’s disease. Mr Yu’s son is responsible for his care and welfare under a Lasting Power of Attorney (LPA). Mr Yu has been attending a day centre for a year, but his son has become concerned about the ability of the centre to meet his father’s needs, given the recent deterioration in his health. He asks for specific information from his father’s file about the care provided so that he may make an informed decision in the best interests of his father. But the manager of the centre refuses this request, saying that he is prevented from disclosing personal information in respect of Mr Yu because of the Data Protection Act.

• What would you have done in these circumstances?

• Where might you get advice if you were not sure?

Mr Yu’s son is a welfare attorney. Having an LPA he is, legally, his father’s agent and the LPA gives him authority to look after his father’s welfare. He needs to access specific personal data in order to ensure that proper care is provided to Mr Yu. With the power under the LPA, the Data Protection Act 1998 requires the day centre manager to provide access to personal data held on Mr Yu in this respect.

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Remember, access to personal information must be in accordance with the law. Disclosure of, and access to, information is regulated by:

• the Data Protection Act 1998

• the common law duty of confidentiality

• professional codes of conduct

• the Human Rights Act 1998.

Attorneys with an LPA are entitled to any information as if they were theperson lacking capacity as long as they are acting within the scope of theirauthority.

The NHS Code on Confidentiality provides the following guidance:

“Where the patient is incapacitated and unable to consent, information should only be disclosed in the patient’s best interests and then only as much information as is needed to support their care.”

Remember that concerns about data protection and maintaining confidentiality should not mean that someone does not receive a service.


• identified the questions to ask when sharing information

• noted that attorneys are entitled to information.

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http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_4069253


14 Using the Mental Capacity Actto improve practice

14.1 Communicating with service users and patients

In commenting on the skills needed by staff working with the Mental Capacity Act 2005 (MCA), service users and carers emphasised the importance of taking time over communicating with people who may lack capacity and to be prepared to communicate in different ways.

Karen says:

“They’d have to be very patient, they’d have to listen, but it’s more than listening skills. I was an advocate for a woman who I was told had no communication skills. But they don’t mean that – they just mean she doesn’t communicate in a way that is readily accessed by us. You’d say, ‘Do you want a cup of tea?’ and she’d grab your arm and you’d have to follow her to know that was where she was going but, yes, she did want a cup of tea. It took her three visits before she would accept me because I was a stranger.”

User and carers hoped that the Act would encourage staff to acknowledge their service users’ dignity and right to make choices. They emphasised that all service users want to be treated with warmth and respect.

Isabel says:

“The thing that affects me most are the personal qualities of the person who comes through my door, not the qualities of their manager, but their qualities and whether they have understood what qualities will most help me keep going at home. And I find that some have personal understanding, compassion, empathy, relate to you in a spontaneous and respectful way, and that those people make your life better.”

In conclusion, you have:

• listened to the views of people using services about their hopes for the Act and how it can sustain good practice and improve quality of life

• learnt about the key elements of the MCA

• reflected on how it will affect your work.

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GlossaryAdvance decision – allows an adult with capacity to set out a refusal of specified medical treatment in advance of the time when they might lack the capacity to refuse it at the time it is proposed. If life-sustaining treatment is being refused, the advance decision has to be in writing, signed and witnessed, and include a statement saying that it applies even if life is at risk.

Attorney – the person you choose to manage your assets or make decisions under a Lasting Power of Attorney or Enduring Power of Attorney.

Best interests – the duty of decision makers to have regard to a wide range of factors when reaching a decision or carrying out an act on behalf of a person who lacks capacity.

Capacity – the ability to make a decision.

Contemporaneous – at the same time – any person with capacity can refuse treatment at the time it is offered. An advance decision means you have to accept that what the person wanted some time ago is what they want now.

Court of Protection – where there is a dispute or challenge to a decision under the Mental Capacity Act, this Court decides on such matters as whether a person has capacity in relation to a particular decision, whether a proposed act would be lawful and the meaning or effect of a Lasting Power of Attorney or Enduring Power of Attorney.

Court-appointed deputy – an individual appointed by the Court of Protection to make best interests decisions on behalf of an adult who lacks capacity to make particular decisions.

Decision maker – someone working in health or social care or a family member or unpaid carer who decides whether to provide care or treatment for someone who cannot consent; or an attorney or deputy who has the legal authority to make best interests decisions on behalf of someone who lacks the capacity to do so.

Donor – the person who is making a Lasting Power of Attorney to appoint a person to manage their assets or to make personal welfare decisions.

Enduring Power of Attorney (EPA) – a power of attorney to deal with property and financial affairs established by previous legislation. No new EPAs can be made after the Mental Capacity Act is implemented, but existing EPAs continue to be valid.

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Independent mental capacity advocate (IMCA) – someone who is instructed when a person who lacks capacity to make specific decisions has no one else who can speak for them. They do not make decisions for people who lack capacity, but support and represent them and ensure that major decisions for people who lack capacity are made appropriately and in accordance with the Mental Capacity Act.

Lasting Power of Attorney (LPA) – a power under the Mental Capacity Act which allows an individual to appoint another person to act on their behalf in relation to certain decisions regarding their financial, welfare and healthcare matters.

Public Guardian – this official body registers Lasting Powers of Attorney and court-appointed deputies and investigates complaints about how an attorney under a Lasting Power of Attorney or a deputy is exercising their powers.

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Useful sources and referencesFurther information is available in the training sets that accompany this material. Links to more information and reference to the Mental Capacity Act 2005 (MCA) and Code of Practice are included in the text where relevant. The following list includes other articles or books that may be of interest.

Department for Constitutional Affairs Range of material including the statutes and an easy read summary to the MCA available on the website: www.dca.gov.uk/legal-policy/mentalcapacity

Department of Health website: www.dh.gov.uk/mentalcapacityact

Welsh Assembly Government Guidance issued for Wales available on website: http://new.wales.gov.uk/topics/ health/nhswales/healthservice/mental _health_services/mentalcapacityact/ ?lang=en

Ashton, G., Oates, L., Letts, P. and Terrell, M. (2006) Mental Capacity: The New Law, Bristol: Jordan Publishing Ltd.

Bartlett, P. (2005) Blackstone’s Guide to the Mental Capacity Act 2005, Oxford: Oxford University Press.

British Medical Association (2007) Withholding and Withdrawing Life-prolonging Medical Treatment: Guidance for decision making, third edition, Oxford: Blackwell Publishing.

British Medical Association and Law Society (2004) Assessment of Mental Capacity: Guidance for Doctors and Lawyers, second edition, London: BMJ Books.

British Psychological Society (2006) Assessment of Capacity in Adults: Interim Guidance for Psychologists, Leicester: British Psychological Society.

Department of Health (2000) No Secrets: guidance on development and implementation of multi-agency policies and procedures to protect vulnerable adults, London: Department of Health.

Department of Health (2004) The Ten Essential Shared Capabilities:A Framework for the Whole of the Mental Health Workforce, London:Sainsbury Centre for Mental Health, the NHSU and the National Institute forMental Health England.

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http://www.dca.gov.uk/legal-policy/mental-capacity/

http://www.dca.gov.uk/legal-policy/mental-capacity/


http://new.wales.gov.uk/topics/health/nhswales/healthservice/mental_health_services/mentalcapacityact/?lang=en

http://new.wales.gov.uk/topics/health/nhswales/healthservice/mental_health_services/mentalcapacityact/?lang=en


Department of Health (2004) Advice on the Decision of the European Court of Human Rights in the Case of HL v UK (The ‘Bournewood’ Case), London: Department of Health.

Department of Health (2006) Bournewood Briefing Sheet, London: Department of Health.

Griffith, R. (2006) ‘Making decisions for incapable adults 1: capacity and best interest’, British Journal of Community Nursing, Vol. 11, No. 3, 119–25.

Griffith, R. (2006) ‘Making decisions for incapable adults 2: advance decisions refusing care’, British Journal of Community Nursing, Vol. 11, No. 4, 162–6.

Griffith, R. (2006) ‘Making decisions for incapable adults 3: protection, guardians and advocates’, British Journal of Community Nursing, Vol. 11, No. 5, 214–21.

Hotopf, M. (2005) ‘The assessment of mental capacity’, Clinical Medicine, Vol. 5, No. 6, 580–4.

Jones, R.W. (2005) Mental Capacity Act 2005, London: Thompson, Sweet and Maxwell.

National Assembly for Wales (2000) In Safe Hands, Cardiff: Social Services Inspectorate.

National Association for Mental Health (MIND) (2006) Guidance on the Mental Capacity Act 2005: Part 1, Openmind, 138.

National Association for Mental Health (MIND) (2006) Guidance on the Mental Capacity Act 2005: Part 2, Openmind, 140.

National Council for Palliative Care (2005) Guidance on the Mental Capacity Act 2005, London: National Council for Palliative Care.

Schiff, R., Sacares, P., Snook, J., Rajkumar, C. and Bulpitt, C.J. (2006) ‘Living Wills and the Mental Capacity Act: a postal questionnaire survey of UK geriatricians’, Age and Ageing, 35: 116–21.

Woodbridge, K. and Fulford, K.W.M. (2004) Whose Values? A workbook for values-based practice in mental health care. London: Sainsbury Centre for Mental Health.

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