The mental capacity act.

By C Spain

INTRODUCTION TO THE MENTAL HEALTH ACT

The mental health act was introduced in September of 1983 to replace the 1959 act.The mental health act in divided into various sections and subsections. These sections help to set out what sort of care is made available to clients who are placed under these sections.For example sections 2,3,4 and 5 (the most commonly used sections) can be remembered using the phase “I ATE ALREADY” as in Assessment, Treatment, Emergency and Already in hospital.

Common sections.

Section 1--This sets out why the act is needed and who it is trying to help.

Section 2—Assessment, usually for no more than 28 days.

Section 3—Treatment, This section is for people requiring treatment and is for a

Maximum period of 6 months.

Section 4—Emergency treatment, for no more than 72 hours

Common sections.

Section 5—Already in hospital, This section is designed to help with those people who Are in hospital informally (Not held under any section) If they are deemed to Be a “danger to themselves or others” and require to be held against their will

In order to help prevent any harm coming to themselves or others.

This section is split into two subsections section 5/2 refers to the doctors holding power whilst section 5/4 refers to the nurses holding power.

The nurses holding power.

This “nurses holding power” requires that the responsible nurse feels that the Client is— A-Informal B-Deemed to be a danger to themselves or others C-And no doctor is immediately available. The “nurses holding power” lasts for up to 6 hours and during that time a Doctor should be advised and then make a decision as to whether to section

the client or not.

The mental health act.

There are many other sections within the mental health act and if interested further reading is advised.

The mental capacity act 2005

A new part of legislation that has recently come into force that we need to be aware of is the mental capacity act.

This act is underpinned by five key principles, these are—

The mental capacity act 2005

A presumption of capacity.This means that every adult has the right to make his or her own decisions and must be assumed to have the capacity to do so unless it is proved otherwise.The right for individuals to be supported to make their own decisions.This means that people must be given all appropriate help before anyone decides that they are unable to make these decisions.

The mental capacity act 2005

The right to make wrong decisions.

This means that the individual must be allowed to make decisions which may seem as unwise or eccentric.

Acting in the individuals best interests.

This simply put means that anything done for and on behalf of an individual without capacity must be in those individuals best interests.

The mental capacity act 2005

Do not restrict the individuals own rights.

That anything done for or on behalf of an individual without said capacity should be the least restrictive of the individual’s basic rights and freedoms.

What is mental capacity?

• Mental capacity is the ability to make a decision

Capacity can vary depending on the decision to be made

Physical conditions, such as location, can affect a person’s capacity

Staff must not assume a lack of capacity because of a person’s age, physical appearance, condition or an aspect of their behaviour

What is lack of capacity?

An individual lacks capacity if they are unable to make a particular decision

This inability must be caused by an impairment or disturbance in the functioning of the mind or brain, whether temporary or permanent

Capacity can vary over time and depends on the type of decision

The mental capacity act 2005

So how do we assess the mental capacity of an individual?The act makes it clear that a lack of capacity cannot be made merely by reference to a persons age, experience or any other condition or aspect of a persons behaviour, Which could be deemed assumptions and unjustified.

The mental capacity act 2005

There is a test which can be done with the individual which is decision specific. to help enable staff to work out whether or not the clients have the capacity to make their own decisions about their own lives.

So what is this “Test”?

The client has to show that they—

A Understand what is being asked or said to them, For example can they repeat it back to you?

B Can they retain and remember the information given after say 10-15 minuets?

C Can the client not only remember but also repeat it back to you after a period of time, say 10-15 minuets?

The mental capacity act

If they are unable to complete all of these tasks then they are deemed not able (not to have the capacity) to make their own decisions without help and/or guidance.

At all times staff should work with the individuals best interests at the foremost of their care.

But remember

It may be useful, as in most tests of this type, for the client to attempt the test on more than on occasion , for example in the morning and later on in the evening. This will give a more accurate reading.The main thrust of the mental capacity act deals with how decisions are made with, and especially on behalf of, people who lack full mental capacity.These parts of the mental capacity act came into force as recently as 1st October 2007.

KEY CONCEPTS.

One person’s ability to make decisions can vary, both over time and depending on exactly what the decision is. However, the initial presumption must be in favour of mental capacity.

Mental capacity needs to be assessed by the person who is making the decision, not by some one else.

KEY CONCEPTS.

Decisions that are not urgent should normally be deferred to give time for the person to have all the options and other issued explained to them in a way that they may understand, to help avoid “other people” from making the decision for them.

Where a decision is to be made by some one other than the resident/client, then the clients own views and wishes should also be taken into account.

KEY CONCEPTS

Ultimately, however, the ultimate test is the “best interests” of the client.The process of assessment of capacity and decision making should be recorded, in order to avoid or limit possible legal liability.Where a person has nobody to speak for them, an independent mental capacity advocate (“IMCA”) may be appointed to assist. But they are not the decision maker, however.

HOW TO LIMIT PROBLEMS UNDER THE MENTAL CAPACITY

ACT.1—Get Trained (all staff)

2---Sort out capacity and any power of attorney issues at the same time you would do the Initial assessment, for admission. For existing clients, do it now.

3---Make sure that the contract is signed, and by the right person.

HOW TO LIMIT PROBLEMS

4---Make sure you have a care plan for mental capacity decision-making, especially where there are foreseeable difficulties, for example family members with strong or conflicting opinions.

5---Always use “best interest” as the test, no “convenience” or “relative’s wishes”.

6---Record whenever practical the reasons for the decision.

INITIAL CONSIDERATIONS

1---What is the decision to be made?

2---When does it need to be made, at the latest?

3---What is the worst that could happen if the decision is bad or wrong?

4---What would the client need to be capable of understanding, weighing up and Communicating, in order to make the decision for themselves?

INITIAL CONSIDERATIONS

5---Do I have any objective evidence for believing that the client is not capable of Understanding or communicating this?6---Can the decision be delayed until the client has recovered capacity, or can the necessary information be presented in a way that the client can understand?

DAY TO DAY CARE

7---If the answer to question 5 is “yes” and the answer to question 6 is “no”, Does the type of decision to be made fall within the “day to day care “of the client, for example help with washing, dressing, personal hygiene, eating drinking, mobility or personal safety. If the answers “yes”, then make the decision in the clients “best interests”, taking all relevant circumstances and known wishes into account, and record the decision and reasons for it if practical.

POWERS OF ATTORNEY

8---If this is not a “day to day care” decision, is there a registered attorney whose authority covers this sort of decision?

WHENEVER YOU OR THE HOME ARE THE DECISION MAKERS

9—REMEMBER—whatever the method used, ensure that the decision is—

a) The least restrictive option.

b) Recorded where ever practical,

c) Take advice if unsure.

d) In the clients “best interests”.

What is meant by, best interests

• Any decision or act must be in a person’s best interests

• When making decisions, staff should take account the following: – equal consideration and non-discrimination – considering all relevant circumstances

– regaining capacity– permitting and encouraging participation– special considerations for life-sustaining – the person’s wishes, feelings, beliefs and

values– the views of other people

Question.

How can I ensure that an older person who is mentally incapacitated gives their consent for treatment?

To ensure that an older person who is mentally incapacitated gives their consent, be very clear about the means by which the person is communicating their consent.

Consent to treatment can be communicated in writing or verbally. For example, is the person nodding their head, smiling or attempting verbal utterances?

Consent can also be implied.

Implied consent is usually clear because the patient co-operates with the treatment being given.

In most cases verbal consent or consent by implication is sufficient.

What to do?

Assess each person individually, but consider these practical steps……

1—Does the persons cognitive reasoning fluctuate from day to day? Give them time to consider their treatment during a period when their cognitive reasoning is improved.

Practical steps

If a person does regain some mental capacity, allow them to make an informed choice by presenting the information in a meaningful way.Have a sound knowledge of the individual person. Knowing their usual behaviours and ways of communicating can also aid decision making.

Practical steps.Be aware of the people who may consent through one means and not consent through another, For example, a person may say yes but then try to prevent the treatment from taking place.Maintain accurate records of all communications.And finally.

FINALLY.

All decisions must take into account the older persons human rights, regardless of their mental incapacity.

Royal college of nursing 2008

Thank you for your time.

Mr C Spain