Mental Capacity Act

 

Consent, Mental Capacity and Best Interest Decisions within the Care Environment

To ensure compliance with regulations and best practice you should have a robust system in place to evidence consent, mental capacity and best interest decisions for day to day care, treatment and support.

 

Key Principles:

• Mental Capacity Act Process within the Care Environment
• Gaining Consent Process
• Best Interest Decisions
• Conducting Reviews
• Why it is so important to follow the correct process
• Ensuring Compliance

 

Consent

Consent is giving permission to do something. In mental health and social care settings it usually means that the individual gives consent to take part in an activity or to accept some kind of care or treatment – this could be agreeing to have a shower or a bath – agreeing to take medication, as well as agreeing to have their details shared with others.

It is a general principle that valid consent must be obtained for a person before starting treatment or physical investigation, or providing personal care. This principle reflects people’s right to determine what happens to their own bodies, and is a fundamental part of good practice.

For consent to be valid, it must be given voluntarily and freely, without pressure or undue influence being exerted on the person either to accept or refuse treatment.

The consent must be given by an appropriately informed service user who has the capacity to consent to the intervention in question.

Consent to care and treatment could include the service user, the court, someone authorised under a Lasting Power of Attorney (LPA) or someone who has the authority to make treatment decisions as a court appointed deputy.

There are situations such as in an emergency or when a person is unconscious, when consent cannot be obtained.

There are different types of consent in health care and social care settings.

Written consent is valid if it is given voluntarily and appropriate information and capacity have been satisfied. It is good practice to use forms for written consent where an intervention is to be undertaken. Details of the information given to the service user should be recorded and a signature obtained. Most providers’ consent policies will require written consent to be obtained in these circumstances.

Verbal (explicit) and non-verbal (implied or implicit) consent – sometimes verbal consent might be referred to as ‘explicit’ consent, and non-verbal may be referred to as ‘implied’ or ‘implicit’ consent. An example of verbal or explicit consent would be where a nurse carries out a wound dressing change and tells the service user what they want to do and asks them if they agree to the procedure. If the service user agrees then this is explicit consent (verbal consent). An example of non-verbal or implied consent would be where a service user, after receiving appropriate information, holds out an arm for their blood pressure to be taken or opens their mouth for their teeth or throat to be examined. However, the person must have understood what examination or treatment is intended, and why, for such consent to be valid.

In all cases, staff should be aware of the different types of consent and the importance of ensuring that the service user understands what is going to happen to them. If written consent, then a consent form would be completed. If verbal or non-verbal then this should be documented in the notes e.g. the notes that are written up about the intervention/support given.

What is mental capacity?

This is the ability to make decisions and consent to support and treatment. If a person cannot do this then they lack capacity. Decisions may be about health/welfare and finances.

Lacking capacity is due to a brain impairment (long or short term) which may be:

• dementia
• learning disability
• brain injury
• mental health condition|
• a stroke
• certain medications
• unconscious (by anaesthesia or an accident)
• depression
• increased alcohol intake

If NO brain impairment, then they can make a decision.

Just because they have one of the above doesn’t necessarily mean they are not capable of making decisions. They may not have capacity to make big decisions (financial, major surgery), but still have capacity to make smaller decisions (what to eat, or how to dress).

To have capacity they must be able to:

• understand and retain information relevant to the decision
• retain it long enough to make a decision
• weigh up all info available
• communicate their decision.

Capacity can fluctuate – can you wait until they have recovered capacity?

The Mental Capacity Act 2005

The Mental Capacity Act (2005) is designed to protect and empower those who may be unable to make their own decisions about care and treatment. Applies to 16 years and older. It protects human rights by ensuring people are supported to make their own decisions where possible. If they cannot, then the decision should be made in their best interests, in the least restrictive way.

Restrictions include continuous supervision. Supervision can be necessary as a form of support (this doesn’t necessarily mean 24 hours a day, but if there are significant periods where supervision happens), and not being free to leave (they may not want to, but if they tried to, would they be stopped?). If the best interest’s decision includes this type of restriction, then it may constitute a Deprivation of Liberty and ‘authorisation’ to deprive someone of their liberty would need to be sought from local authority, or an urgent one put in place by the manager (this will change to Liberty Protection Safeguards in April 2022). This is commonly known as a ‘DoLS’. The scrutiny a care plan receives under DoLS can help make it more supportive/positive for the person.

There is a code of practice (Mental Capacity Act 2005 on gov.uk website) care home staff should be aware of.

The emphasis is: CHOICE. The service user should be encouraged to make their own decisions wherever possible. This respects choice and autonomy.

There are 5 principles of the Mental Capacity Act (2005):

1. Everyone has a right to make their own decisions – always assume they have capacity unless proven otherwise by a mental capacity assessment
2. The person must be given help to make a decision themselves – provide clear info in a format easier to understand, don’t use jargon etc.
3. Just because someone makes what may be considered an ‘unwise decision’, doesn’t mean they should be treated as if they lack capacity – everyone has the right to make their own life choices where they have capacity to do so. If I have capacity and want to spend my last few pounds on the horses… I CAN!
4. Where someone is assessed not to have capacity to make a specific decision, that decision can be made for them, but it must be IN THEIR BEST INTERESTS
5. Treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms as possible – whilst still providing the required treatment/care.

 

Mental Capacity Assessment

This assessment is time and decision specific, and should be repeated each time a decision needs to be made, if capacity is in doubt. It should be done by someone who has had mental capacity training.

It may not have to be recorded each time if the service user’s capacity has not recovered and their care plan covers the decision.

Stage one – have they got a brain impairment/disturbance in the functioning of the mind/brain?

Stage two – the service user must be capable of:

Understanding the information relevant to the decision – do they understand the reason for treatment/support?

Retaining that information – retain it long enough to make the decision?

Weighing up information available to make a decision – accepting info and taking into account

Communicating their decision – if not verbalising yes or no, then gestures, behaviour, written down, expressed in non-verbal ways

It is good practice to record what concerns/triggers have given rise to this assessment; details of action taken to support them to make a decision; whether the decision can be delayed because they are likely to regain capacity; whether the assessment was impaired, based on duress or undue influence e.g. restrain or coercion; details of any other professionals that supported you to carry out the assessment, and whether they agreed with the capacity decision reached.

The outcome of the assessment is based on the balance of probabilities, and if there is a reasonable belief that the service user has or has not got capacity in relation to that decision.

If they HAVE CAPACITY, they can make their own decision and give consent.

If they LACK CAPACITY, then a best interest’s decision should be made for them.

Best Interests Decision

When making a best interest decision, if the service user has an official advocate, then they have the authority to make decisions on their behalf e.g. a Lasting Power of Attorney (chosen by the service user when they had capacity, and registered officially with the Office of the Public Guardian); or a Deputy (someone who gained permission from the courts to act on a service user’s behalf if they don’t have capacity and have no LPA in place). Or an Independent Mental Capacity Advocate IMCA (a professional chosen to act on the service user’s behalf)/Best Interests Assessor (BIA)/care giver if there is no advocate in place.

Whomever makes the decision on their behalf must consider the following:

• All relevant circumstances
• Past and present wishes/statements/beliefs/values of the service user
• Consultation of others e.g. relatives, carers, friends (members of the family who do not have LPA/deputy status can still be involved in the decision making, and assisting care staff to make a best interest decision)
• Could the same result be achieved in a less restrictive way (the service user may wish to visit the shops but are unable to decide if it is safe…can they be accompanied so they can still go?)
• Will they have capacity in the future in relation to the matter? Can the decision wait?
• The service user should be encouraged to participate where possible
• The best interest decision is not based solely on age, appearance, behaviour or condition
• If the decision is about life sustaining treatment, do not be motivated by a desire to bring about the service user’s death
• If the service user has made an advance decision to refuse treatment in the case of deteriorating health, then this should be referred to, if relevant e.g. if the service user has a terminal illness and has made an advance decision to refuse antibiotics if they get a chest infection.

 

Advance Decisions

The Mental Capacity Act also enables someone to create an advance decision to refuse treatment. This allows someone to state the types of treatment. This allows someone to state the types of treatment they do not want, should they lack the capacity to decide for themselves in the future. This may include refusal of life sustaining treatment. Valid advance decisions are legally binding and must be followed by health professionals, provided the treatment and circumstances set out by the advance decision apply to the situation in question.

To be valid, an advance decision must be made in writing, and must be signed and witnessed. The document contains several pieces of information, and it can help to have a conversation with the GP before making an advance decision, in order to ensure it covers what the person wants to do.

Advance Statements

Another way someone can plan for their future is by creating an advance statement. This is where they set out their wishes and preferences, including preferences about care, where they will live, what they like or dislike to eat, and even day time activities and who they do and do not want to visit them.

Advance statements can either be made in writing or verbally. They are not legally binding, but must be taken into account when decisions are made on behalf of a person who cannot make the decisions for themselves. They are a good way of enabling someone to express their wishes for the future, including both what they do and don’t want.

Care Planning

Below are some pointers for approaching care planning in a person-centred way, ensuring where possible, the service user makes their own decisions.

• Start with the person and what they want to do and focus on this
• Even if decisions are small, most people can make them e.g. sitting in the sun
• Encourage the service user to enable themselves
• Respect and respond to the needs of the individual
• Good care is personalised and realistic
• They’re in their own home! If they want a lie in, they can have one!
• Detail why arrangements are in their best interest. Especially those in the context of DoLS
• Always make clear on why arrangements are least restrictive on the individual. In context of DoLS, explain why this is the least restrictive option
• Always have why options may not be allowed

 

Scenarios for mental capacity assessment

Below are a few examples of different decisions, action taken and how they would be reviewed, when the service user did not have mental capacity. If they had capacity the detail would be recorded on a consent form for the service user to sign if they consent to the care, treatment and support.

Sally is a resident in a care home with dementia. She has had a stroke and has permanent left sided weakness so has difficulty with washing and dressing.

She requires medication daily.

She has a leg ulcer that has a treatment plan in place to promote full healing.

She takes part in daily group activities such as knitting club, exercise and art.

Scenario One

We want to create a care plan for her personal care requirements. The specific decision here is ‘How I want my daily personal care to be delivered’.

At the time of needing to make a decision Sally has been assessed as not having capacity to make it. So her daughter who has LPA makes the decision for her, in her best interests, and details what Sally’s preferences are, the staff then create the Washing and Dressing Care Plan for Sally’s personal care requirements.

If Sally’s capacity has not recovered each time the care plan is reviewed then you wouldn’t be expected to completely re-do an assessment, however you would want to review the last mental capacity assessment to check all the details are still correct and it is still relevant.

If all is still the same, and Sally still does not have mental capacity then we just want to be able to sign to say we have reviewed it, to make a note Sally’s LPA is still happy, and ‘it still stands’. Or we may want to tweak it here and there, for example Sally’s daughter has specified something else. The old one is then archived and this new version then takes it place and becomes the current one.

Or it may be that Sally has capacity this time and can sign herself to give consent. In which case this supersedes the last one too, and so on.

Scenario Two

Sally is on various medication and these need to be taken daily. The specific decision here is ‘How I want my medication to be administered’.

Same as above, Sally does not have capacity at the time of needing to make a decision and her daughter decides it is in Sally’s best interests to have her medication administered by care staff and not self-administered. This is detailed in her Medication Care Plan. The review process is the same as above.

Scenario Three

Sally has a leg ulcer that needs to be dressed daily and photographed to track the process.

The specific decision here is ‘To have my dressing changed and photographs taken of my wound in order to monitor its healing’.

Same as above, Sally does not have capacity at the time of needing to make a decision and her daughter decides it is in Sally’s best interests to have her dressings changed as per treatment plan and to be photographed by care staff as part of this treatment plan. This is detailed in her Wound Care Plan. The review process is the same as above. Or it may not need reviewing as the wound may have healed and the mental capacity form could be archived in this scenario – it no longer needs to be visible as the issue no longer exists, but should be retrievable in case it needs to be referred to.

Scenario Four

Sally takes part in daily activities and has been asked if she would mind photographs of herself taking part in the activities to be shared on social media. The specific decision here is ‘To have photographs of me taking part in activities shared on the home’s Facebook page’.

Same as above, Sally does not have capacity at the time of needing to make a decision and her daughter decides it is in Sally’s best interests not to have her photograph shared on Facebook as she has always been a very private person and wouldn’t like this. This is detailed in her Social Activities Care Plan. The review process is the same as above.

Scenario Five

Sally needs a COVID nasal swab done weekly as per home policy. The decision here is ‘A weekly nasal swab is needed to monitor for COVID-19 to keep me and others safe’.

Same as above, Sally does not have capacity at the time of needing to make a decision and her daughter decides it is in Sally’s best interests to have the COVID-19 swab to keep her and others safe. This is detailed in her COVID-19 Care Plan. The review process is the same as above.

Note: If you find that someone does not have capacity to make a decision about one thing e.g. a medication decision, this does not mean that they cannot make a decision about another thing e.g. food choices. Even if it’s on the same day!

Mental capacity assessments are decision specific – you cannot do one assessment to cover a range of decisions.

Many service user’s capacity may not recover and they will be unable to make most decisions for themselves. This doesn’t mean that the above processes and principles should be ignored. You can review that the assessments relevant to that specific care plan are still valid, when you do your care plan review(s).

Mental Capacity Act Summary

The Mental Capacity Act 2005 provides a statutory framework to empower and protect vulnerable people who are not able to make their own decisions. It makes it clear who can take decisions, in which situations, and how they should go about this. It enables people to plan ahead for a time when they may lose capacity.

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