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Mental Capacity Act Policy

Aim

The aim of this policy is to ensure that Cavendish Homecare Professionals fully implement the Mental Capacity Act 2005 which sets out how clients who lack capacity should be helped to take decisions and under what circumstances decisions might be taken on their behalf when they lack the ability to do so.  Most importantly the MCA sets out:

  • who can take decisions for people who lack capacity
  • in which situations this can be done
  • how they should go about this.

Definition of ‘capacity’

The ‘capacity’ referred to in the MCA refers to the mental capacity to make a decision. Where a person is described as ‘lacking capacity’ this means that the person is judged as being unable to make a decision for him or herself because of an impairment of, or disturbance in the functioning of, the mind or brain, whether temporary or permanent.

Importantly, capacity can change and may relate to different decisions differently. Therefore a lack of capacity should never be assumed or presumed.

A person’s capacity to make a decision can be affected by a range of factors such as a stroke, dementia, a learning disability or a mental illness – or when they are near end of life. A person’s capacity may also vary over time or according to the type of decision to be made.

Physical conditions, such as an intimidating or unfamiliar environment, can also affect capacity, temporarily preventing people from being able to make decisions, as can trauma, loss, medication and health problems.

Key principles of the Act

The Act is underpinned by five key principles namely –

  • A presumption of capacity – every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise.
  • The right for individuals to be supported to make their own decisions – people must be given all appropriate help to enable them to make their own decisions before anyone concludes that they cannot do so.
  • Individuals must retain the right to make what might be seen as eccentric or unwise decisions – it is human nature that people sometimes make poor decisions but that does not mean that they should be judged as unable to take those decisions.
  • The principle of ‘best interests’ – anything done for or on behalf of people without capacity must be in their best interests.
  • The least restrictive intervention principle – anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.

According to these principles, which are legally enforceable in law, all staff involved in the care and treatment of a person who may lack capacity must show that they understand the rights of the person under the law and that they have assessed the person’s capacity appropriately.

CQC compliance

Cavendish Homecare Professionals understands that from April 2015 the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 apply.

The fundamental standards also contain a number of references to the Mental Capacity Act and the need to protect the human rights of people who lack capacity.

For example, Regulation 9: Person centred care states that where a client lacks mental capacity to make specific decisions relating to their care and treatment, and no lawful representative has been appointed, their best interests should be established in accordance with the Mental Capacity Act 2005, and these should be acted upon.

Mental capacity issues are also covered in Regulation 11: Need for consent; Regulation 12: Safe care and treatment; Regulation 13: Safeguarding clients from abuse and improper treatment; and Regulation 20: Duty of candour.

Implementation

In Cavendish Homecare Professionals:

  • Managers and staff must assume that a user of our service has the capacity to make their own decisions, unless it is established or reasonably suspected that they do not have capacity. The presumption of capacity is considered one of the most important elements of the MCA as this forms the basis of all other decisions.
  • In all cases the person should receive appropriate support to help them make their own decisions and, before concluding that individuals lack capacity to make a particular decision, it is important to take all possible steps to try to help them reach a decision themselves.
  • For some people their lack of capacity may be obvious and they may be incapable of communicating or of thinking for themselves. For others the situation may be less clear. They may be confused or difficult to communicate with, or their abilities may come and go but, if approached at the right time and in the right way, they may be capable of registering their wishes in a way that shows they have understood the issues. In these cases people who may lack capacity will require care staff to make every effort to help them understand.
  • In emergency medical situations (for example, where a person collapses), urgent decisions will have to be made and immediate action taken in a person’s best interests. However, even in emergency situations the Act states that it should not merely be assumed that decisions can be made for a person. In such situations, staff should try to communicate with the person and keep them informed of what is happening at all times.
  • If a decision does have to be made for a person who lacks the capacity to make it for themselves, the Act makes it clear that all such decisions must be based on the ‘best interests’ of the person concerned. When trying to work out the person’s best interests the decision-maker must identify all the issues that would be most relevant to the individual who lacks capacity and to the particular decision. Wherever possible they should include other staff, family members, carers, advocates or other professionals and record the decision. Such decisions are referred to as best interests decisions.
  • Staff should use the two-stage test set out in the Act for assessing whether a person lacks capacity to take a particular decision at a particular time. The two-stage test asks:

Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain? If so, is the impairment or disturbance sufficient that the person lacks the capacity to make that particular decision?

The Act states that any competent person who is aware of the requirements of the MCA can apply this test; they do not have to be a doctor or a nurse. The test is decision-specific which means that it must be applied for each specific decision.  Where used the test should be properly recorded in the client’s notes.

  • Staff should be aware of Section 2 of the Act which makes it clear that a lack of capacity cannot be established merely by reference to the person’s age, appearance, or any condition or aspect of a person’s behaviour which might lead others to make unjustified assumptions about capacity.
  • Staff assessing capacity must remember that an unwise or unpopular decision made by the person does not of itself indicate a lack of capacity.
  • A person can put his or her wishes and feelings into a written statement if they so wish, which the person making the determination must consider.
  • Where assessments of capacity relate to day-to-day decisions and caring actions, such as helping someone to wash or get out of bed, no formal assessment procedures or documentation are required. However if a decision is challenged the member of staff must be able to describe why they had a reasonable belief of lack of capacity. Anyone making a decision in the best interests of a person who lacks capacity is specifically warned in the Act not to make assumptions that cannot be clearly justified.
  • Where the decision is about highly significant matters, such as financial, medical or end of life matters, the assessment process has to be clear and accountable and requires input from staff across the range of organisations involved in providing support for a person. In such cases it should include family and carers and, where there is no family or carer, an independent mental capacity advocate (IMCA) may be assigned where appropriate.
  • Family, carers and significant others in the life of a client should be consulted about decisions, wherever appropriate. Under the Act carers and family members have a right to be consulted.
  • Restraint should only ever be used in compliance with the Act as a last resort or in exceptional circumstances. It is defined in the Act as the use or threat of force where an incapacitated person resists, and any restriction of liberty or movement, whether or not the person resists. It is only permitted if the person using it reasonably believes it is necessary to prevent harm to the person who lacks capacity, and if the restraint used is proportionate to the likelihood and seriousness of the harm.
  • Staff should be aware of how the Act relates to advance decisions. These are decisions made by a person in case there comes a time when they no longer have the capacity to make a decision. In such cases the advance decision, where properly made, should be acted upon.
  • Staff should be aware that in situations where decisions are being made about serious medical treatment for a person who lacks capacity and has no one to speak for them, such as family or friends, the Act makes provision for them to be supported by an independent mental capacity advocate (IMCA). The IMCA makes representations about the person’s wishes, feelings, beliefs and values, at the same time as bringing to the attention of the decision-maker all factors that are relevant to the decision. The IMCA can challenge the decision-maker on behalf of the person lacking capacity if necessary.
  • Staff should be aware that the Act allows a person to appoint someone with lasting powers of attorney to act on their behalf if they lose capacity in the future. An attorney must be over 18 and can be a family member, friend, care worker or professional. They are always subject to the provisions of the Act, particularly the core principles and the best interests requirements.
  • Staff should be aware that the Act introduced a criminal offence of ill treatment or neglect of a person who lacks capacity. Any person found guilty of such an offence may be liable to imprisonment for a term of up to five years. Organisations may also be liable to prosecution under corporate manslaughter provisions if the ill treatment or neglect resulted in or contributed to the death of a person.

Training

In Cavendish Homecare Professionals all care staff should be trained in the basic principles of the Mental Capacity Act and in its direct application to their work. Training should be included in induction and refreshed as necessary.

Date: January 2024

Version: 8 (Review)

 Source: Expert Care Manager