Mental Capacity Act and Deprivation of Liberty

Points 1 to 3 relate to Capacity. Points 3 and 4 relate to Best Interests.

1. Assume Capacity.

BUT this is only the starting point. It is down to the clinician to prove that the patient lacks capacity rather than the patient having to prove that they have. Where there is a reason to doubt capacity then a formal assessment should be completed.

2. Support to Make Decisions.

It is not enough to simply test the patient's comprehension of the decision, professionals must also help them. Support might include writing down information, using pictures or symbols, or speaking to them at a time of day when the patient will be the most alert.

3. Unwise Decisions.

This is often misunderstood. This does not confer a right to make an unwise decision. It states that a patient cannot be judged to lack capacity just because they make a decision professionals and family deem unwise.

4. Best Interests.

Only when it has been determined that a patient LACKS capacity can we then make decisions on their behalf. This involves consultation with the person, their family & friends, and other health and social care staff using the Best Interests checklist.

5. Least Restrictive.

Any decision made in the patient’s Best Interests must not be unduly restrictive on their rights and freedoms. For example, prior to agreeing that covert medication is required you might consider if a ‘retreat and return’ approach may work.

Capacity is decision specific. Example decisions to be considered might be:

1. Capacity in regard to where the patient lives for their care and support.

2. Capacity in regard to antihypertensive medications.

3. Capacity in regard to treatment for pressure sores.

Stage 1 of the test asks if the patient is able to (1) understand, (2), retain, (3) use or weigh, and (4) communicate the relevant information.

In order to have capacity, the patient must be able to meet all 4 of the elements above.

The relevant information for the decision is determined by the clinician assessing capacity and includes the ‘reasonably foreseeable consequences’ of making or failing to make the decision.

Care must be taken not to set the bar to high. A patient who is suspected to lack capacity should not be asked more than someone whose capacity is not in doubt.

Some decisions now have case law which guides clinicians as to what the relevant information should be. This should be adapted to the individual circumstances of the patient. An example of this, 39 Essex Chambers Guidance Note, can be found here.

Stage 2 of the test prompts clinicians to ask: ‘Is the patient’s inability to make the decision because of a mental impairment?’.

Examples of a relevant mental impairment include such conditions as dementia, learning disabilities, delirium, or an alcohol intoxication. They may be permanent or temporary.

Decisions about a patient's capacity are made on the balance of probabilities. This is to say that you are of the view that it is more likely than not that they either have or lack capacity.

Capacity Assessments should be recorded using the pro–forma located here.

Protection from liability is found in your rationale for determining capacity rather than arriving at the ‘correct’ outcome. Show your working out in the pro-forma!

Assessing capacity where the person  is self neglecting and/or experiences executive dysfunction can prove challenging. A link to local guidance can be found here.

When making a Best Interests decision, Clinicians should follow the Best Interests checklist. This involves:

1. Encouraging the patient’s participation.

2. Identifying all relevant circumstances.

3. Determining the patient’s past and present wishes, their beliefs and values.

4. Avoiding discrimination.

5. Determining if it is possible to wait until they regain capacity.

6. Not be motivated by a desire to bring about the patients death in life sustaining treatment cases.

7. Consult with others (family, friends, legally appointed decision makers, and other health & social care workers).

8. Avoid unnecessary restrictions.

Where there are no friends or family to consult and the decision involves serious medical treatment or a long term move then a referral for an Independent Mental Capacity Advocate (IMCA) should be made. The link to the IMCA referral form for Somerset can be found here.

A Best Interests decision may be reached through individual discussions, electronic communication, or phone calls. However where the matter is more risky, complex, and contentious then a meeting will be required.

Best Interests decisions should be recorded  on the pro-forma located here here.

A person lacking capacity is not an off switch in regard to their rights and freedoms. The closer the incapacitated patient is to having capacity then the more weight should be given to their views and wishes.

Lasting Power of Attorney and Deputyships usually relate to:

1. Property and Affairs, or

2. Health & Welfare.

An Attorney or Deputy becomes the ‘decision maker’ on the patient's behalf in regard to care and treatment where; a) the patient no longer has capacity and b) the attorney and deputy has a registered health and welfare document.

Clinicians should request to see the documentation or they can complete an OPG100 and search the Office of the Public Guardian registers. You can find out if someone has a registered attorney or deputy here.

Attorneys are chosen by the patient themselves at a time where they had capacity planning for a time where they may lack. Deputies are appointed by the Court of Protection for patients who have already lost capacity. Deputies for property and affairs are commonplace, deputies for health and welfare are very rare.

Attorneys and Deputies are compelled to make their decisions based on considering Best Interests (in the same way that clinicians are).  If there are concerns that the attorney or deputy is not acting in the person’s Best Interests then a referral should be made to the local safeguarding team and the Office of the Public Guardian. Click here for the Local Safeguarding Referral information. However a referral should not be made simply because the clinician disagrees with the attorney or decision maker. Click here to report a concern about an attorney, deputy or guardian

The Court of Protection is the body that adjudicates on Mental Capacity Act issues where there is a dispute or the matter is contentious. Examples of issues that the Court might consider are; i) Coronavirus vaccination for a person with severe learning disabilities where the family do not agree, ii)  Moving into a care home for a person with alcohol related dementia who has been self neglecting, iii) Deciding whether or not to cease artificial hydration and nutrition where a patient is in a persistent vegetative state. An introduction to the work of the Court can be found here.

If you believe you have a case that may require consideration by the CoP then you should contact the ICB Mental Capacity and Deprivation of Liberty Strategic Lead.