Working With the Mental Capacity Act 2005 (eBook)

Aasya Mughal, Steven Richards (Autoren)

eBook Download: EPUB

2018 | 1. Auflage
251 Seiten
Bookbaby (Verlag)
9781543934663 (ISBN)

Infos

The Mental Capacity Act 2005 provides the legal framework for assessing whether a person has the mental capacity to make decisions and defines how others can make decisions on their behalf if they lack mental capacity. Its scope is wide-ranginginvolving decisions regarding social care, healthcare and financial matters. Working with the Mental Capacity Act 2005 (Third Edition) provides a clear and detailed explanation of the Act. It is written in an accessible style and is designed to be of maximum use to health and social care practitioners, enabling them to utilise the Act with confidence in daily practice. There are detailed chapters on key parts of the Act including: The principles Advance decisions to refuse treatment Mental capacity assessment Office of the Public Guardian Best interests decisions Advocacy (IMCA) Restraint Deputies Deprivation of Liberty Safeguards Court of Protection Lasting powers of attorney Financial powers Criminal offence Codes of practiceEach chapter contains references and quotes from the most recent and relevant case law and, in addition, the codes of practice to the Act are referenced throughout. The book also provides special dedicated chapters and guidance as follows: Consent to care and treatment and the link to the Act Safeguarding adults and the Act The interaction between the Mental Health Act and the Mental Capacity Act The use of the Act by different care providers including the police, ambulance staff,dentists, GPs, prison healthcare and CCGs Information and case law guidance on specific decisions including: Admission for care (supported living and mental health hospital) Contact with other people Contraception Do not attempt cardiopulmonary resuscitation (DNACPR) End of life decisions Marriage Sexual relations Tenancy agreements Testamentary capacity (wills)The book also contains a series of summary tables, charts and diagrams designed to provide at a glance information and explanations. In addition, every chapter addresses frequently asked practice-based questions asked by health and social carestaff.

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PROTECTION, POWERS, DEFENCE AND DUTIES

‘The Mental Capacity Act 2005 established a comprehensive scheme for decision-making on behalf of people who are unable to make the decision for themselves. The decision-maker - whether a carer, donee of a power of attorney, court-appointed deputy or the court - stands in the shoes of the person who is unable to make the decision - known as P - and makes the decision for him. The decision has to be that which is in the best interests of P.’

Supreme Court judgment, N v ACCG & Ors [2017] UKSC 22

The Mental Capacity Act 2005 provides a statutory framework for assessing whether a person has mental capacity to make certain decisions. It also defines how others can make decisions on behalf of those who lack mental capacity to decide for themselves. Its scope is wide-ranging, involving decisions regarding healthcare, social care and financial affairs. The Act directly addresses the issue of providing care and treatment for people who lack the mental capacity to consent to it.

Prior to the legislation being introduced, such decisions lacked legal protection unless they followed the common law rules relating to mental capacity and best interests. These common law rules were derived from previous cases that had been to court in which judges had set out how mental capacity should be assessed and given guidance in relation to making best interest decisions. However, many health and social care staff were unaware of these court cases governing assessments of mental capacity and best interests decision-making. This resulted in assessments with no basis in law and consequently no legal protection for staff or the individuals they assessed. It was not uncommon for assessments of mental capacity to be unlawful because they were based solely on a person’s diagnosis, for example a doctor might decide that someone lacked mental capacity just because they had dementia. Other assessments had been based solely on inappropriate testing, such as psychiatric assessments establishing a mental health diagnosis, a mini mental state examination or an IQ test where low results were seen to equate to a lack of mental capacity. Although these were important tests for different purposes, for example obtaining a diagnosis, they were unlawful ways to assess mental capacity.

The Act resolved this problem by clearly defining how to assess mental capacity and best interests. The legislation can be seen as working in a number of ways – providing protection, a defence, powers and duties.

Protection

The Act provides protection for people whose mental capacity is called into question. As indicated above, it was not uncommon prior to the introduction of the legislation for people to be labelled as lacking mental capacity to make decisions based purely on their diagnosis, such as dementia. For these people, the Act provides protection by asserting that regardless of a person’s diagnosis or behaviour, they must be assumed to have mental capacity. Any doubt over a person’s mental capacity must be proven by following the assessment laid down in the legislation and evidencing the reason they lack mental capacity. The person being assessed has to prove nothing.

For people lawfully assessed as lacking capacity, the legislation provides protection by setting out a mandatory procedure for making decisions on their behalf (best interest decisions). The procedure takes into account the wishes and values of the person and those closest to them and involves the person in the decision-making as far as possible. Because of this approach, the decision arrived at may not necessarily be in the person’s best medical interests or the safest option available but will be respectful of them as an individual and their human rights. The importance of the Act was underlined in 2015 by Lord Faulks, Minister of State (Ministry of Justice) during a House of Lords debate. Referring to the terrible abuse of learning disabled adults at the Winterbourne View private hospital, Lord Faulks stated:

‘… the failings at Winterbourne View were completely unacceptable and use of the Mental Capacity Act there was poor, if not non-existent. The Government strongly believe that better implementation of the Act will greatly reduce the likelihood of a future Winterbourne View situation.’

In July 2017, a report called Learning from SARs: a report for the London Safeguarding Adults Board was published. It is available from: www.londonadass.org.uk/learning-from-sars-report. The report analysed 27 separate safeguarding adult reviews from 17 safeguarding boards across London. The majority of these reviews were statutory under section 44 of the Care Act 2014 which meant the person concerned had died or suffered serious abuse or neglect. The detailed report found many issues for learning but the key one was:

‘Twenty one of the 27 reports commented on mental capacity, which represents therefore the most frequently represented learning about direct practice … much of the learning in the SARs is about missing or poorly performed capacity assessment, insufficient scepticism and respectful challenge of decision-making and possible consequences, and in some cases about an absence of best interests decision-making.’

The Act also contains a criminal offence which can be used to prosecute those who wilfully neglect or ill-treat people lacking mental capacity. In addition, for the most vulnerable people, the legislation provides a free independent mental capacity advocacy service (IMCA).

The Act also provides protection for the staff and carers working with them. By using the Act, staff are protected for the decisions they make despite the person lacking mental capacity to consent to them. However, if their actions are negligent, they are not protected. For example, a person may lack capacity to consent to dental treatment. Their dentist may decide in accordance with the Act, that it would be in their best interests to have a tooth extraction, a decision for which the dentist would be protected if the Act was used correctly. However, if the dentist then carried out the treatment in a negligent way and extracted the wrong tooth, they would not be protected for this mistake and would be responsible in law for their negligence.

A defence

Section 5 of the Act contains a defence. As long as people use the Act properly, it gives them a defence if they make decisions in the best interests of those who lack mental capacity to decide or consent. The Act provides a standard method to make a best interests decision which is detailed in the chapter Best Interests Decisions. Failure to use the Act where it applies means a professional is not protected by this defence when making decisions on behalf of the person who lacks mental capacity. In the case of Elaine Winspear v City Hospitals Sunderland NHS Foundation Trust [2015] EWHC 3250 a doctor failed to apply the best interests checklist when completing a DNACPR notice for a hospital patient lacking mental capacity about this decision. Specifically, the doctor failed to consult the patient’s mother breaching the duty to consult anyone interested in the welfare of the person under section 4(7) of the best interests checklist. The judge, in finding against the doctor, stated:

‘Accordingly I am satisfied that there was a breach of the s.4(7) duty; no s.5(2) defence exists to this claim …’

Powers

The Act provides fundamental powers in relation to financial, health and social care decisions. For people who have capacity, it is the power to plan ahead for a time when they may lack capacity. Under the Act, people are able to assign another person to make these decisions on their behalf in case they lose the mental capacity to do so themselves. This is called a lasting power of attorney. Those with mental capacity can also record their wishes to refuse future treatment, through an advance decision (previously known as a living will). The Act provides a statutory procedure to do this and formally recognises its authority.

Duties

The defence mentioned above is only accessible by following the Act. Professional staff need to provide evidence they are following the rules and procedures laid down within the legislation. Statutory and non-statutory organisations providing health and social care for people who lack capacity must ensure that their policies and practices take account of the Act. They must comply with the legal requirements the legislation places upon them. Managers need to ensure staff have an understanding of the Act and can use the powers provided correctly. Lord Dyson in the Court of Appeal ruling on the failure of the Metropolitan Police to use the Act when taking action against a man with a learning disability stated:

‘As I have said, the Mental Capacity Act does not impose impossible demands on those who do acts in connection with the care or treatment of others. It requires no more than what is reasonable, practicable and appropriate.’

ZH v the Commissioner of Police for the

Metropolis [2013] EWCA Civ 69

Implementation of the Act

Although called the Mental Capacity Act 2005, the full powers of the legislation only came into force on 1st October 2007. The Deprivation of Liberty Safeguards came into force in April 2009. The Act has authority in the legal jurisdiction of England and Wales....

Produkt-Details

• Erscheint lt. Verlag: 9.5.2018
• Sprache: englisch
• Themenwelt: Recht / Steuern ► Allgemeines / Lexika
• ISBN-13: 9781543934663 / 9781543934663