Deciding whether a person has the capacity to make a decision the Mental Capacity Act 2005

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1 Deciding whether a person has the capacity to make a decision the Mental Capacity Act 2005 April 2015 Deciding whether a person has the capacity to make a decision the Mental Capacity Act 2005 The RMBI, in adherence with the Mental Capacity Act 2005, aims to ensure there is a protective framework in place for people who lack or lose capacity to make their own decisions now and into the future. What is mental capacity? Mental capacity means the ability to make a decision including decisions that affect daily life such as when to get up, what to wear or whether to go to the doctor when feeling ill as well as more serious or significant decisions that may have legal consequences, either for them or for others. Examples include agreeing to have medical treatment, buying goods or making a will. A person s capacity to make a decision can be change over time. It can be affected by a range of factors such as a stroke, dementia, a learning disability or a mental illness. Some people may experience only a temporary loss of capacity to make decisions while others may have longer term loss of capacity. However, people with these conditions do not all necessarily lack capacity to make decisions. What to do You must keep a record of all assessments and decisions made regarding a person s capacity to make a decision, using the Mental capacity assessment form at the end of this section. Keep the completed form in the person s personal file and make a note in their Care plan that the assessment has been carried out. It is important to regularly review a person s capacity to make decisions. The ability to make a decision can improve and/or deteriorate over time. Updated and current records provide evidence and ensure the appropriate care for people using our services.

2 Assessing whether a person has capacity to make a decision In this section we describe what to do if you need to assess a person s capacity to make a particular decision (see also the Mental capacity assessment form at the end of this section). Core principles When making any assessment of or decision about a person s capacity, follow these five core principles as set out in the Mental Capacity Act 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 steps to help him or her to do so have been taken without success. 3 A person is not to be treated as unable to make a decision merely because he or she makes an unwise decision. 4 An act done, or decision made, under the Mental Capacity Act for or on behalf of a person who lacks capacity must be done, or made, in his or her 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. When you might need to assess a person s capacity You should presume that a person has capacity to make a decision unless doubts are raised. There are a number of reasons why people may question a person s capacity to make a specific decision: The person s behaviour or circumstances cause doubt as to whether they have the capacity to make a decision. Somebody else says they are concerned about the person s capacity. The person has previously been diagnosed with an impairment or disturbance that affects the way their mind or brain works, and it has already been shown that they lack capacity to make other decisions in their life. Helping a person to make the decision themselves Before deciding to assess whether someone lacks capacity to make a particular decision, it is important to take all practical and appropriate steps to enable the person to make that decision themselves. To help someone make a decision for themselves, check the following points: Does the person have all the relevant information they need to make the decision? Provide all relevant information, but do not burden the person with more detail than

3 is necessary. Include information on the consequences of making, or not making, the decision. The information that should be provided is what an ordinary person would expect to receive to make this decision. If they are making a decision that involves choosing between alternatives, do they have information on all the different options? Would the person have a better understanding if information was explained or presented in another way? Consult with family and other people who know the person well on the best way to communicate for example, by using pictures or signing. Check if there is someone who is good at communicating with the person involved. Are there times of day when the person s understanding is better? For example, consider the effects of any medication or treatment. If the person s medication makes them drowsy, see them before they take the medication, or after the effect has worn off. Are there locations where they may feel more at ease? Make sure it is quiet and that you are unlikely to be interrupted. Can the decision be put off until the circumstances are different and the person concerned may be able to make the decision? Can anyone else help the person to make choices or express a view? For example, a family member or carer, an advocate or someone to help with communication. Make sure that the person feels comfortable with the person who is supporting them to make the decision. Fluctuating capacity Capacity is both time-specific and decision-specific. As a general rule, most people will be able to make most decisions most of the time. A lack of capacity can change over time. Some people have fluctuating capacity. This means that they have a problem or condition that gets worse occasionally and affects their ability to make decisions. So lack of capacity can change over time. Also, a person may have the capacity to make some decisions but not others. Decisions made while a person with fluctuating capacity has capacity are binding decisions. What is the test of capacity? To help determine if a person lacks capacity to make a decision, the two-stage test of capacity must be applied. The person should be assessed while at their best level of functioning.

4 Two-stage test of capacity Stage 1: Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? Stage 1 requires proof that the person has an impairment of the mind or brain, or some sort of disturbance that affects the way their mind or brain works. If a person does not have such an impairment or disturbance of the mind or brain, they will have capacity to make the decision under the Act. Examples of an impairment or disturbance in the functioning of the mind or brain may include the following: conditions associated with some forms of mental illness dementia significant learning disabilities the long-term effects of brain damage physical or medical conditions that cause confusion, drowsiness or loss of consciousness delirium concussion following a head injury, and the symptoms of alcohol or drug use. If the answer to the Stage 1 question is Yes, go to Stage 2. Stage 2: Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to? For a person to lack capacity to make a decision, the Act says that their impairment or disturbance must affect their ability to make the specific decision when they need to. But first people must be given all practical and appropriate support to help them make the decision for themselves. Stage 2 can only apply if all practical and appropriate support to help the person make the decision has failed. What does unable to make a decision mean? Under the Mental Capacity Act, a person is unable to make a decision if they cannot: understand information about the decision to be made retain that information in their mind use or weigh up that information as part of the decision-making process communicate their decision (by talking, using sign language or any other means). Note: If a person cannot do any of the first three of these things, they will be treated as unable to make the decision. The fourth only applies in situations where people cannot communicate their decision in any way.

5 If the person has capacity to make this decision: The person makes an informed choice regarding care or treatment. This choice must be respected even if it is unconventional. Record the decision taken by the person. If the person lacks the capacity to make this decision: The team that is carrying out the assessment makes the decision of what is in the person s best interests (see Making a decision in the person s best interests, later in this section). Relatives, friends or others should be consulted in this process but cannot make the decision for the person, except where there is a registered Lasting Power of Attorney or a Deputy of the Court of Protection whose power covers the situation. Take into account any relevant advance decision. See section Consent: Advance decisions. The person should be informed and supported throughout the decisionmaking process. Deprivation of Liberty safeguards Any decision judging a person s capacity needs to take into account the potential for triggering a Deprivation of Liberty. This is most relevant if the issue involves potentially restricting the movement or action of a person, or placing them under constant or considerable surveillance. For further information, please see section Deprivation of Liberty. The Mental Capacity Act and common-law approaches Although the Mental Capacity Act was intended to establish a method of dealing with all capacity issues, it may well be that previous common-law approaches will still be adopted when applying the Mental Capacity Act (Common law is law established through decisions made by courts in individual cases). Decisions that can never be made on behalf of a person There are certain decisions that can never be made on behalf of a person who lacks capacity to make those specific decisions. This is because they are either so personal to the individual concerned, or are governed by other legislation. Decisions not covered by the Mental Capacity Act include: decisions concerning family relationships matters where the Mental Health Act applies voting rights unlawful killing or assisted suicide. Other people can never make these decisions on behalf of a person, regardless of the person s capacity to make these decisions themselves.

6 Who should assess capacity? The assessment of capacity is the responsibility of the relevant decision maker. Anyone caring for or supporting a person who may lack capacity should be involved in an assessment. Each decision needs to be considered alongside the person s capacity to make it. For example, care home staff regularly make day-to-day assessments of capacity when asking people in the Home whether they want to do one thing or another. The more significant the decision, the more likely it is that a number of different professional staff will be involved. When should other professionals be involved? Professional opinions may be required when assessing a person s capacity to make complex or major decisions. In some cases this will simply involve contacting the person s GP. If the person has a particular condition or disorder, it may be appropriate to contact a specialist for example, a consultant psychiatrist, psychologist or other professional with experience of caring for patients with that condition. A speech and language therapist may be able to help if there are communication difficulties. In some cases, a multi-disciplinary approach is best (this means combining the skills and expertise of different professionals). Professional involvement might be needed if: the decision that needs to be made is complicated or has serious consequences an assessor concludes that a person lacks capacity, and the person challenges the finding family members, carers and/or professionals disagree about a person s capacity there is a conflict of interest between the assessor and the person being assessed (if this is the case, the assessor should not take part in the assessment) the person being assessed is expressing different views to different people they may be trying to please everyone or telling people what they think they want to hear somebody might challenge the person s capacity to make the decision either at the time of the decision or later (for example, a family member might challenge a will after a person has died, on the basis that the person lacked capacity when they made the will) somebody has been accused of abusing a vulnerable adult who may lack capacity to make decisions that protect them a person repeatedly makes decisions that put them at risk or could result in suffering or damage.

7 Record keeping You must keep a record of all assessments and decisions made using the Mental capacity assessment form at the end of this section. Keep the completed form in the person s personal file and make a note in their Care plan that the assessment has been carried out. The record should include: why the assessment was undertaken the reason behind the assessment the result of the assessment who was involved in the assessment, and a date for reviewing the assessment. In certain circumstances the Court of Protection or the Office of the Public Guardian may require formal reports or access to records. It is therefore important that records are maintained and kept up to date. Making a decision in the person s best interests The Mental Capacity Act requires any decision or act made on behalf of a person who lacks capacity to be made in that person s best interests. Any act done for, or any decision made on behalf of, someone who lacks capacity should be an option that is less restrictive of their basic rights and freedoms as long as it is still in their best interests. The Act does not define best interests because so many different types of decisions and actions are covered by the Act and so many different people and circumstances are affected by it. However, it does identify the following factors that must be considered when determining the best interests of individuals. (For more information see chapter 5 of the Mental Capacity Act 2005 Code of practice.) Working out what is in someone s best interests cannot be based simply on someone s age, appearance, condition or behaviour. Consider all relevant circumstances when working out someone s best interests, including any Advance decision made by the person. These are circumstances of which the decision-maker is aware and those which it is reasonable to regard as relevant. Involve the person in the decision-making process wherever possible. This may involve finding the appropriate means of communication or using other people to help the person participate in the decision-making process. If there is a chance that the person will regain the capacity to make a particular decision, consider whether it may be possible to put off the decision until later if it is not urgent.

8 Special considerations for life-sustaining treatment. Anyone who is deciding whether or not life-sustaining treatment is in the best interests of someone who lacks capacity to consent to or refuse such treatment must not be motivated by a desire to bring about the person s death. Consider the person s current and past wishes, feelings, beliefs and values especially any written statements made by the person when they had capacity. Other people who are close to the person who lacks capacity must be consulted, if it is reasonable and practicable to do so. This includes: - anyone the person has previously named as someone they want to be consulted - anyone involved in caring for the person - anyone interested in their welfare (for example, family carers, other close relatives, or an advocate already working with the person) - an attorney appointed by the person under a Lasting Power of Attorney, or - a deputy appointed for that person by the Court of Protection. If there is no-one to speak to about the person s best interests, in some circumstances the person may qualify for an independent mental capacity advocate (IMCA). Before making the decision: Consider whether there is a less restrictive alternative or intervention that is in the person s best interests. Demonstrate that all conflicting evidence has been assessed. Provide clear, objective reasons as to why you are acting in the person s best interests. Record keeping You must keep a record of the process of working out the best interests of that person for each relevant decision, using the Mental capacity assessment form at the end of this section. Keep the completed form in the person s personal file and make a note in their Care plan that the assessment has been carried out. The record should include: how the decision about the person s best interests was reached what the reasons for reaching the decision were who was consulted to help work out the person s best interests, and what particular factors were taken into account.

9 Independent Mental Capacity Advocate (IMCA) service The aim of the IMCA service is to provide independent safeguards for people who lack capacity to make certain important decisions and who, at the time such decisions need to be made, have no-one else (other than paid staff) to support or represent them, or to be consulted. IMCAs must be independent. An IMCA must be instructed, and then consulted, for people lacking capacity who have no-one else to support them (other than paid staff), whenever: an NHS body is proposing to provide serious medical treatment, or an NHS body or local authority is proposing to arrange accommodation (or a change of accommodation) in hospital or in a care home, and the person will stay in hospital longer than 28 days, or the person will stay in the care home for more than eight weeks. An IMCA may be instructed to support someone who lacks capacity to make decisions concerning: review of the Care plan, where no-one else is available to be consulted, or adult protection cases, whether or not family, friends or others are involved, or if deprivation of liberty safeguards have to be considered. Lasting Power of Attorney and Enduring Power of Attorney Under a Lasting Power of Attorney an individual can, while they still have capacity, appoint another person to make decisions on their behalf about property and financial affairs, health and personal welfare matters (including health care and consent to medical treatment). The person making the Lasting Power of Attorney chooses who will be their attorney. They can give power to the attorney to make all decisions, or they can choose which decisions they can make. The Lasting Power of Attorney replaced the Enduring Power of Attorney in October Enduring Powers of Attorney set up before 2007 are still valid but since October 2007 only a Lasting Power of Attorney can be made. A Lasting Power of Attorney can cover property and financial affairs, and also personal welfare. An Enduring Power of Attorney covers only property and financial affairs. A property and financial affairs Lasting Power of Attorney, and an Enduring Power of Attorney, can be used while the person still has capacity to manage their own property and affairs, as long as the person does not say otherwise in the Lasting Power of Attorney. (A Lasting Power of Attorney for property and affairs has to be registered before it can be used and can only be used while the person has capacity if they consent to this.) However, a personal

10 welfare Lasting Power of Attorney can only be used once the person lacks capacity to make the welfare decision in question. See also: Consent: Advanced decisions Deprivation of Liberty Mental Capacity Act 2005 Code of practice. By the Department for Constitutional Affairs. London: TSO. Review date: June 2017

11 Mental capacity assessment form Please use this form in conjunction with the Mental Capacity Act 2005 Code of practice and section 11.2 Deciding whether a person has the capacity to make a decision the Mental Capacity Act Core principles When making any assessment of or decision about a person s capacity, follow these five core principles, as set out in the Mental Capacity Act 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 steps to help him or her to do so have been taken without success. 3 A person is not to be treated as unable to make a decision merely because he or she makes an unwise decision. 4 An act done, or decision made, under the Mental Capacity Act for or on behalf of a person who lacks capacity must be done, or made, in his or her 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. Name RMBI Home Date of birth I am completing this assessment on (add date) because (insert name) appears to lack capacity at this time and for this decision. Why does this assessment need to be made? What is the decision to be made?

12 Are there significant barriers to communication? (Sight, cognitive function, hearing, verbal communication) of barrier and what you have done to improve communication Assessment of whether a person has capacity to make a decision This assessment of whether the person has capacity refers only to a specific decision that needs to be made now. Stage 1 Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain? Yes, permanent Yes, temporary No Please record symptoms, behaviour or any relevant diagnosis. If the answer to the Stage 1 question is No, the person has capacity to make the decision. Signature Date Time If the answer to the Stage 1 question is Yes, permanent or Yes, temporary, go to Stage 2. Stage 2: Does the impairment or disturbance mean that the person is unable to make a specific decision when they need to? To decide this, answer the four questions below. At the bottom of this box, add any details relevant to this information. 1 Can the person understand the information relevant to the decision, with all possible help given? Yes No 2 Can the person retain that information in their mind long enough to make the decision? Yes No 3 Can the person use or weigh up that information as part of the decision-making process? Yes No

13 4 Can the person communicate their decision, by any means available to them? Yes No Extra information to add to the points above:

14 Outcome of mental capacity assessment Is the answer to all the four questions above Yes? Yes The person, named above, has capacity to make this decision. The person makes an informed choice regarding care or treatment. This choice must be respected even if it is unconventional. Record the decision taken by the person. No The person, named above, lacks the capacity to make this decision. The team that is carrying out this assessment makes the decision of what is in the person s best interests. Relatives, friends or others should be consulted but cannot make the decision for the person, except where there is a registered Lasting Power of Attorney or a Deputy of the Court of Protection whose power covers the situation. Take into account any relevant advance decision. See section Consent: Advance decisions. The person should be informed and supported throughout the decision-making process. Fluctuating capacity Consider whether the person has fluctuating capacity and whether the decision can wait until capacity returns. If so, record this and enter a date for a re-assessment. Capacity may be regained Not likely to regain capacity Not appropriate to delay the decision Re-assessment date

15 Advance decision (Record any documentation.) Is there an advance decision relevant to this decision? No Yes If Yes, why is it relevant? Advance decision type Written Verbal Date of advance decision Is this advance decision still applicable? Yes No Withdrawn Unanticipated circumstances Lasting Power of Attorney or Enduring Power of Attorney granted regarding the decision Inconsistent behaviour regarding the advance decision Detained under the Mental Health Act 1983

16 Making a decision in the person s best interests The Mental Capacity Act requires that any act done or decision made on behalf of a person who lacks capacity must be done or made in that person s best interests. The following factors must be considered when determining the best interests of the person. Are there any relevant circumstances that should be taken into account when making the decision? How can the person be involved in the decision-making process? Is the person likely to regain capacity? If so, can the decision be put off until the person regains capacity? What are the person s current and past wishes, feelings, beliefs and values in relation to this decision? (In particular, any written statements made by the person when they had capacity) Views of other people Other people must be consulted if it is reasonable and practicable to do so. Views of anyone the person has previously named as someone they want to be consulted (Name and role or relationship)

17 Views of anyone involved in caring for the person or interested in their welfare (for example, family carers, other close relatives, or an advocate already working with the person) (Name and role or relationship, if applicable) Views of the lead professional (Name and role) Views of other professionals involved (Names and roles) Views of interested others (an attorney appointed by the person under a Lasting Power of Attorney, or a deputy appointed for that person by the Court of Protection) (Names and roles) Is there any possible conflict of interest with regard to this decision? If the person lacking capacity does not have anyone in the above categories, other than paid carers, and faces a decision about serious medical treatment or a change of residence, you will need to instruct and consult with an IMCA (independent mental capacity advocate).

18 Assessment summary Does the decision require referral to the Court of Protection? Yes No Considering all the factors, what final decision has been made? The decision made is the least restrictive option or intervention possible. There are no conflicts of interest. This decision has not been based on the person s age, appearance, condition or behaviour. Every effort has been made to communicate with the person concerned. Decision-maker Organisation Signature Role Phone Date decision made Time of decision made What happens now? You must inform the person, named above, of the decision. You must inform everyone involved in this process about the decision.

19 You must continue to record, in the person s personal file, any subsequent actions with regard to the person s care and treatment.

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