Assessment of Mental Capacity and Best Interest Decisions

Standard Operating Procedure 1 (SOP 1) Assessment of Mental Capacity and Best Interest Decisions Why we have a procedure? This Standard Operating Procedure (SOP) is required to set out how a person s capacity should be assessed, and if they are found to lack capacity, how decisions should be made on their behalf and who should make them. This SOP clearly defines the procedure that must be followed when decisions need to be made that involve a person over sixteen years of age who may not have the capacity to make the decision for themselves. The SOP is reflective of the Mental Capacity Act which is intended to assist and support people who may lack capacity and to discourage anyone who is involved in caring for someone who lacks capacity from being overly restrictive or controlling. It aims to balance an individual s right to make decisions for themselves with their right to be protected from harm if they lack capacity to make decisions to protect themselves. This SOP is intended to provide support in carrying out and recording formal capacity assessments and is not intended as a substitute for the Code of Practice. All people and professionals involved with working or caring for a person who lacks capacity to make a decision must have regard to the Mental Capacity Act Code of Practice. What overarching policy the procedure links to? Mental Capacity Act Policy Which services of the trust does this apply to? Where is it in operation? Group Inpatients Community Locations Mental Health Services all Learning Disabilities Services all Children and Young People Services all Who does the procedure apply to? All Health and Social Care staff who need to assess a person s capacity to make a particular decision. Under the Mental Capacity Act, capacity assessments are the responsibility of the person who has responsibility for the decision. Throughout this SOP (and the Mental Capacity Act Code of Practice) the person with responsibility for the decision is referred to as the Decision Maker. Assessment of Mental Capacity and Best Interest Decisions Page 1 of 18 Version 2.0 March 2017

The Decision Maker is likely to be the person within the organisation who would normally discuss the decision with the person and support them to make a decision. The Decision Maker may involve others in the assessment when necessary, though the Decision Maker has the responsibility to arrive at a Best Interests decision on behalf of a person who lacks capacity, unless someone else has the legal authority to do this. When should the procedure be applied? When there is need to assess a person s capacity to make a particular decision. How to carry out this procedure The first test is diagnostic: In order to decide whether an individual has the mental capacity to make a particular decision, you must first decide whether there is an impairment of, or disturbance in, the functioning of the person s mind or brain (it does not matter if this is permanent or temporary). The second test is functional: The person will be unable to make the particular decision if after all appropriate help and support to make the decision has been given to them (the second of the 5 principles) if they cannot do one of the following: 1. Understand the information relevant to that decisions 2. Retain that information long enough to make that decision (the fact that the retention maybe short is irrelevant to this consideration) 3. Use or weigh that information as part of the process of making the decision 4. Communicate their decision (whether by talking, using sign language or any other means) Mental Capacity is decision specific This means that a person may be capable of making a decision on a more simple issue, but not one of a more complex nature. Each decision the person is being invited to make should be individually assessed as to their ability to make it. Working in a Person s Best Interests Determining what is in the best interest of a person who lacks the capacity to make a decision requires the decision maker to: Consider the person s present and past wishes and feelings. Be aware of influencing beliefs and values the person holds Consult other people when it is appropriate to do so Those decision makers will normally be: The carer responsible for day-to-day care or A professional such as a doctor, nurse or social worker and Decisions about medical treatment, care arrangements or accommodation have to be made. Assessment of Mental Capacity and Best Interest Decisions Page 2 of 18 Version 2.0 March 2017

Remember Someone who can t make complex decisions, could still make simple decisions, such as what to eat or wear Start from the assumption that the person has the capacity to make the decision Assessment must be about that particular decision and not about a range of decisions An assessment will usually include the person s family, friends and carer, or an Independent Mental Capacity Advocate (IMCA) if one has been appointed Assessment 1. Is there a permanent or temporary impairment of, or disturbance in, the functioning of the person s mind? 2. If yes, does the impairment mean that the person is unable to make this decision? Remember Make every effort to find a way to communicate with the person. This may need specialist help The person is unable to make the decision if, after they have had all appropriate help and support, they can t: understand information about the decision and the consequences of making it retain information about the decision use the information as part of the decision-making process communicate their decision by any means Person has capacity and can make the decision even if their decision seems strange or eccentric Person does not have capacity, so you must make the decision in their best interests Assessment of Mental Capacity and Best Interest Decisions Page 3 of 18 Version 2.0 March 2017

Best interests Don t make assumptions on the basis of the person s age or appearance, condition or any aspect of their behaviour Consider all the relevant circumstances relating to the decision Consider whether the person is likely to regain capacity (after medical treatment). Can the decision wait until then? Involve the person as fully as possible in the decision that is being made on their behalf Consider the person s past and present wishes and feelings, and beliefs and values which could influence the decision Consult other people if it is appropriate and take into account their views, especially anyone named by the person as someone to be consulted, carers, close relatives or friends, an attorney appointed under a Lasting Power of Attorney and any deputy appointed by the Court of Protection to make decisions for the person If you are making a decision about serious medical treatment or changes of accommodation and there is no one else to consult, you should consider involving an IMCA When you are carrying out certain actions in connection with the care and treatment of people who lack capacity to consent, you must work within the MCA, which means that you must: Observe the principles of the MCA Carry out an assessment of capacity and reasonably believe that the person lacks capacity in relation to the matter in question Reasonably believe the action you have taken is in the best interests of the person Emergency (Doctrine of Necessity) In emergencies, it will almost always be in the person s best interests to give urgent treatment without delay. Action must be taken to prevent a serious deterioration in health or to prevent death. One exception to this is when there is an advance decision to refuse the proposed treatment. When the emergency is over the doctrine of necessity no longer applies Remember You should always refer to: Mental Capacity Act 2005 www.legislation.gov.uk/ukpga/2005/9/contents MCA Code of Practice www.justice.gov.uk/protecting-the-vulnerable/mentalcapacity-act Ministry of Justice Guidance leaflet www.dca.gov.uk/legal-policy/mentalcapacity/publications Assessment of Mental Capacity and Best Interest Decisions Page 4 of 18 Version 2.0 March 2017

Appendix 1 Best Interest Decision Making Checklist This form has been developed to support your compliance with the Mental Capacity Act 2005 (MCA). There is a statutory requirement for anyone making a best interest decision to have regard to the Code of Practice for the Mental Capacity Act which can be accessed via the Legislation section of the Adult Care Procedures Manual. References given below refer to the relevant paragraphs of the MCA Code. What is the 'best interests' principle and who does it apply to? The 'best interests' principle underpins the Mental Capacity Act. It is set out in chapter 5 of the MCA Code and states that: "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 his best interests." This principle covers all aspects of financial, personal welfare and healthcare decision- making and actions. Certain decisions are excluded because they are either so personal to the individual concerned, or governed by other legislation which include consenting to marriage and consenting to have sexual relations. For full details see 1.8 to 1.11 of the MCA Code. 2.1. Service user details Name: Date of birth: Case/ref: Present address/location: Home address (if different): 2.2. Person completing this form Name: Role: Organisation: Tel: Email: Address: Assessment of Mental Capacity and Best Interest Decisions Page 5 of 18 Version 2.0 March 2017

2.3. State the specific decision relevant to this best interest checklist (see 1.2 of Form 1 Mental Capacity Assessment) 2.4. The MCA Code 5.3 states "working out a person's best interests is only relevant when that person has been assessed as lacking, or is reasonably believed to lack, capacity to make the decision in question or give consent to an act being done." Confirm that a capacity assessment has established the person lacks capacity to make this decision. If the assessment has not established lack of capacity you cannot proceed with a best interests decision. (see 1.9 of Form 1 Mental Capacity Assessment) Yes No Date Undertaken by: Name: Profession: Relationship to person: Tel: Email: Address: 2.5. Clearly identify who is the named decision-maker for this Best Interest Decision. (see 1.5 of Form 1 Mental Capacity Assessment) Name: Profession: Tel: Email: Address: Assessment of Mental Capacity and Best Interest Decisions Page 6 of 18 Version 2.0 March 2017

Chapter 5 of the MCA Code details what you should take into account when working out someone's best interests. As every case, and every decision, is different, that law can't set out all the factors you should consider, however, it sets out some common factors which must always be considered. These factors are summarised in a checklist which this form will now prompt you to work through. 2.6. Best interests consultation record your consultation with the service user. (see 5.21-5.24 and 5.37-5.48 of the Code) What are the issues that are most relevant to the person who lacks capacity? Specify their past and present wishes, feelings and concerns in relation to this decision. What are their values and beliefs (e.g. religious; cultural; moral) in relation to this decision? Are there any other "relevant circumstances" that should be taken into account in this case? Is there a relevant advanced statement? A person may have previously recorded preferences for their future care. Such requests should be taken into account as strong indications of a person's wishes though they are not legally binding. 2.7. Use this section to record who is involved in the consultation. You must include anyone named by the person lacking capacity as someone to be consulted, another professional, and, where appropriate, anyone engaged in caring for the person or interested in their welfare, e.g. any attorney, Court Appointed Deputy or other relevant person. (see 5.49-5.55 of the Code) Assessment of Mental Capacity and Best Interest Decisions Page 7 of 18 Version 2.0 March 2017

Name: Relationship to person: Date consultation was undertaken: What do they consider to be in the person's best interests on the matter in question? Do they have any information about the person's wishes, feelings, values or beliefs in relation to this matter? 2.8. Independent Mental Capacity Advocate (IMCA) involvement Where the person lacking capacity has nobody that can be consulted other than paid carers and professionals, and faces a decision about serious medical treatment or a change of residence, the law requires you to ensure an IMCA is appointed. You also have discretion to refer the person for an IMCA if this decision relates to a safeguarding concern or a care review. The role of the IMCA is to facilitate the decision making process, they are not the decision-maker. (see chapter 10 of the MCA Code) Referral to IMCA service made? Yes No Date Name of appointed IMCA: Organisation: Tel: Email: Address: 2.9. Best interests decision balance sheet approach: specify the different options that are being considered. In deciding best interests, you must explore if there is a less restrictive way to achieve what is in the person's best interests but you do not automatically have to take whatever is the least restrictive option overall. This is because the least restrictive option might not be the one that is in the person's best interests. Assessment of Mental Capacity and Best Interest Decisions Page 9 of 18 Version 2.0 March 2017

Option one Description: Benefits for the person: Risks for the person: Can this be achieved in a less restrictive way? Option two Description: Benefits for the person: Risks for the person: Can this be achieved in a less restrictive way? Option three Description: Benefits for the person: Risks for the person: Can this be achieved in a less restrictive way? Option four Description: Benefits for the person: Risks for the person: Can this be achieved in a less restrictive way? Assessment of Mental Capacity and Best Interest Decisions Page 10 of 18 Version 2.0 March 2017

2.10. Additional information considered by the decision-maker in making the best interests decision specified. 2.11. Final decision. Give the reasons why this option has been selected and why other options have been rejected. 2.12. Objections. Record here if anyone disagrees with the decision that has been made and how you intend to proceed. (see 2.63-5.69 of the MCA Code) 2.13. Best interests decision risk assessment. If you have identified specific risks, consider if you need to complete a specialist risk assessment tool. Specialist risk assessment tool completed? Yes No Date Completed: Completed by: 2.14. Deprivation of Liberty. Article 5 of the European Convention on Human Rights provides that everyone has the right to liberty and security of person. This section helps to highlight if the person might be being deprived of their liberty. On 19.3.14 the Supreme Court handed down a judgment in the case of P (by his litigation friend the Official Solicitor) v Cheshire West and Chester Council and Anor [2014] UKSC 19 (19th March 2014). The judgment is significant as it introduced a new acid test for deciding whether the living arrangements of a person lacking capacity to consent to them amounts to a deprivation of liberty. Assessment of Mental Capacity and Best Interest Decisions Page 11 of 18 Version 2.0 March 2017

If the person lacks capacity to consent to their living arrangements are they: Under continuous supervision and control? Yes No AND Are they free to leave? (In this context this means not free to choose to live elsewhere). Yes No If you have answered 'yes' to either of these questions and the person is in a care home or hospital, the Deprivation of Liberty Safeguards (DoLS) may apply and you must seek advice by contacting the Deprivation of Liberty Safeguards Team on 01216128157 or 07973962948. If the person is living in the community and you are concerned that there may be a deprivation, this would need to be authorised by the Court of Protection and you should seek legal advice. Please note that the judgment made it clear that the person's compliance or lack of objection to the placement; the reason or purpose behind a placement and the relative normality of the placement is no longer relevant to the question of whether they are being deprived. Decision-maker: Date: Assessment of Mental Capacity and Best Interest Decisions Page 12 of 18 Version 2.0 March 2017

Appendix 2 Mental Capacity Act - Two Stage Test/Best Interests Forms Please note the forms below are designed to be printed back to back on A4 paper giving a single sheet for the Two stage functional test appendix 2a and a single sheet for Best interests checklist - appendix 2b These forms should be placed in the service users notes, where they are easily visible and accessible to all staff. The service user should also receive a copy. The nature of decision (two stage form) and the decision (best interests form) must be identical and be the decision the service user is being asked to make. Note: If the two stage functional test demonstrates that the person has capacity there is no need to complete the best interest form as the person will make their own decision. Assessment of Mental Capacity and Best Interest Decisions Page 13 of 18 Version 2.0 March 2017

Two Stage Functional Test for Capacity (Appendix 2a) Patient/User Name: DOB: Patient ID No (NHS or Social Care): STAGE ONE DIAGNOSTIC THRESHOLD Does the patient/service user have an impairment of or disturbance in the functioning of the mind or brain? Yes No If the answer is No then capacity is not at issue. If Yes then record nature of disturbance by applying a tick in the applicable condition as listed below. Neurological disorder Mental disorder Stroke Delirium or unconsciousness Other (please record) Learning disability Dementia Head injury Substance use NATURE OF DECISION (capacity must be assessed on a decision by decision basis) Record in the space below the nature of decision at issue for the person being assessed. STAGE TWO TEST See core policy for guidance on test criteria. Please circle/highlight appropriate answer. 1) Does the person understand the information relevant to the decision? Yes No 2) Can the person retain the information for long enough for the decision to be made? Yes No 3) Can the person use or weigh the information to make a choice? Yes No 4) Can the person communicate the decision? Yes No Answering No to any question above indicates lack of capacity. The assessor must record below evidence in relation to the above assessment outcome. The assessor should refer to Mental Capacity Act Code of Practice chapters 3 and 4 and include: 1. The key elements of the decision and what information the person was given to make the decision. 2. The strategies used to help the person understand the relevant information including the involvement of significant others. 3. How the person conveyed their decision. 4. How optimum timing and environment / location were used to ensure the person felt at ease. Assessment of Mental Capacity and Best Interest Decisions Page 14 of 18 Version 2.0 March 2017

OUTCOME Does the patient have capacity to make this decision at this time? Yes No If the answer is No then complete the Appendix 2b (Best Interest Checklist) Assessor s details Name (print): Signature: Designation: Date: Time: Assessment of Mental Capacity and Best Interest Decisions Page 15 of 18 Version 2.0 March 2017

Best Interests Checklist for Use by Health and Social Care Staff Working with Person Lacking Capacity in Relation to a Decision (Appendix 2b) Patient/User Name: Patient ID No (NHS or Social Care): DOB: DECISION Record in the space below the decision for which person lacks capacity CHECKLIST Please circle appropriate answer 1) Has an advance decision or advance refusal been made about the decision in question (only in relation to healthcare decision), and is it still relevant? Yes No If the answer is Yes then no further assessment is necessary 2) Have you considered whether it is likely that the person may have capacity at some time in future and whether a delay in decision-making will allow them Yes No to make that decision themselves? 3) Have you encouraged as far as is practicable that person s involvement in actions undertaken on their behalf or in any decisions affecting them? Yes No 4) Have you considered as much as is practicable the person s past and present wishes and preferences about the matter in question? Yes No 5) Have you considered any relevant written statement the person may have made when they did have capacity? Yes No N/A 6) Have you considered the beliefs and values that would be likely to influence the person s attitude to the decision in question, i.e. religious, cultural and Yes No lifestyle choices? 7) Have you taken into account other factors that the person would be likely to consider in relation to the matter, i.e. emotional bonds or family obligations Yes No in deciding how to spend money or where to reside? 8) Have you considered alternative actions that produce less restriction on the person s rights and freedoms? Yes No 9) Have you consulted and taken into account the views of other key people as to what would be in a person s best interests and gathered information on their wishes, feelings, values, beliefs? a) Anyone named in advance as someone to be consulted? Yes No N/A b) Carers, family, spouses or partners? Yes No N/A c) Others with an interest in their welfare, friends, voluntary workers, other professionals? Yes No N/A d) Any Lasting Power of Attorney? Yes No N/A e) Any Deputy appointed by the Court of Protection? Yes No N/A If there are any conflicts in the above consultations, there needs to be an attempt to reach a consensus. However, the decision maker makes final decision. Assessment of Mental Capacity and Best Interest Decisions Page 16 of 18 Version 2.0 March 2017

If there is an answer No in question 2 to 9, then staff should question whether they are acting in best interests. If no-one is available to consult and/or if there is serious conflict of opinion and the decision and eligibility relates to decisions identified in Section 4 of the local policy and procedure, then an IMCA referral should be considered. Staff should evidence their consultations in the space below: (continue on a separate sheet where necessary but firmly attach it to this document). Name and job title of worker: Name: Job title: Date of Decision Making/Best Interests Consideration: Assessment of Mental Capacity and Best Interest Decisions Page 17 of 18 Version 2.0 March 2017

Where do I go for further advice or information? MCA and DoLS Practitioner Training Staff may receive training in relation to this procedure, where it is identified in their appraisal as part of the specific development needs for their role and responsibilities. Please refer to the Trust s Mandatory & Risk Management Training Needs Analysis for further details on training requirements, target audiences and update frequencies Monitoring / Review of this Procedure In the event of planned change in the process(es) described within this document or an incident involving the described process(es) within the review cycle, this SOP will be reviewed and revised as necessary to maintain its accuracy and effectiveness. Equality Impact Assessment Please refer to overarching policy Data Protection Act and Freedom of Information Act Please refer to overarching policy Standard Operating Procedure Details Unique Identifier for this SOP is State if SOP is New or Revised BCPFT-MHA-SOP-01-1 Revised Policy Category Executive Director whose portfolio this SOP comes under Policy Lead/Author Job titles only Committee/Group Responsible for Approval of this SOP Month/year consultation process completed Mental Capacity Act Executive Director of Nursing, AHPs and Governance MCA and DoLs Lead Mental Health Legislation Forum September 2016 Month/year SOP was approved February 2017 Next review due March 2020 Disclosure Status B can be disclosed to patients and the public Review and Amendment History Version Date Description of Change 2.0 1.0 Mar 2017 Jul 2013 Full SOP review and new format New SOP for BCPFT Assessment of Mental Capacity and Best Interest Decisions Page 18 of 18 Version 2.0 March 2017