Mental capacity is an issue in neuropsychology/neuro-rehabilitation when a clients family and the clinical team providing care and treatment are trying to arrange what is in the best interests of the client, because the client may lack the mental function and capacity to make an informed decision. In 2005 a specific act, The Mental Capacity Act (2005) was created, in order to clear up a number of issues:
1. The assessment of a person's capacity and acts by carers and people working with those who lack capacity
2. The provisions whereby people can plan ahead for a time when they may lack capacity
3. Important safeguards
1 The Act makes it clear that any assessment of a person’s capacity must be ‘decision specific’. This means that:
• The assessment of capacity must be about the particular decision that has to be made at a particular time and is not about a range of decisions
• If someone cannot make complex decisions, this does not mean that he/she cannot make simple decisions
• You cannot decide that someone lacks capacity based upon his/her age, appearance, condition or behaviour
• People who have capacity have the right to make poor judgements/decisions- this is not a basis for lacking capacity.
People lacking capacity will include those with dementia, learning disability, mental health problems, brain damage, toxic confusional state and physical injury or illness. The mental incapacity may be permanent or temporary.
Key Principles
There are five important things to think about:
1. Start off by thinking that everyone can make their own decisions.
2. Give a person the support he/she needs to make decisions before concluding that he/she cannot make his/her own decisions.
3. Nobody should be stopped from making a decision just because others may think it is unwise or eccentric.
4. Anything done for, or on behalf of, a person without capacity must be in his/her “best interests” - a decision which is arrived at by working through a checklist.
5. When anything is done or decided for a person without capacity, it must be the least restrictive of his/her basic rights and freedoms.
What does the Act do?
• It aims to clarify a number of legal uncertainties.
• It reforms and updates the current law where decisions need to be made on behalf of others, incorporating good practice into statute and introducing a process.
• It sets out a single test for assessing capacity which is a ‘decision specific test’ (covering emergency decisions; day to day decisions and significant, but not urgent, decisions – including where there are a series of minor decisions which together become significant).
• It covers a wide range of decisions, on personal welfare (including health care) as well as financial matters and substitute decision-making by attorneys or court appointed ‘deputies’. It also clarifies the position where no such formal process has been adopted.
• It includes new rules to govern research involving people who lack capacity and provides for new independent mental capacity advocates to represent and provide support to such people in relation to certain decisions.
• It provides recourse, where necessary and at the appropriate level, to a court with power to deal with all personal welfare (including health care) and financial decisions on behalf of adults who are lacking capacity.
• It replaces the current Court of Protection with a new Court of Protection which has more comprehensive powers.
What does the act mean?
It puts in place a code of practice to give guidance about the legislation. The code must be followed by those working in a professional capacity (e.g. doctors and social workers).
The Act offers appropriate protection for carers (both family members and unpaid carers), as well as health and social care professionals, to those who act in the reasonable belief that they are doing so in the person’s ‘best interests’ when the principles of the Act are followed.
2. The Act sets out provisions whereby people can plan ahead for a time when they may lack capacity
• Lasting Powers of Attorney (LPA)
the Act allows a person to appoint an Attorney to act on their behalf if they should lose capacity in the future. More information on Lasting Powers of Attorney is available.
• Advance decisions to refuse treatment
the Act makes it possible to make an advance decision to refuse treatment should they lack capacity in the future. The Act sets out clear safeguards for the making and application of advance decisions. Further guidance and explanation of advance decisions can found, in Chapter 9 of the Code of Practice.
3. The Act creates important safeguards
• A new Court of Protection
the new Court will have the power to make declarations about whether someone lacks capacity, make orders, or appoint Deputies to act and make decisions on behalf of someone who lacks capacity. More information on the Court of Protection and Deputies is available.
• A new Public Guardian
the Act creates a new public official called the Public Guardian. The Public Guardian will have several duties under the Act including registering Lasting Power of Attorney's (LPA's) and Deputies. The Public Guardian will be supported in his role by a new office called the Office of the Public Guardian (OPG). More information on the Public Guardian and OPG is available.
• Independent Mental Capacity Advocate (IMCA)
an IMCA is someone appointed to support a person who lacks capacity but has no one to speak for them, such as family or friends. They will only become involved when decisions about serious medical treatment or a change in the person's accommodation where it is provided by the NHS or a local authority. More information on the IMCA's can be found on the Department of Health website.
• Research involving people who lack capacity
the Act sets out clear guidelines for research involving people who lack capacity. The research must be approved by an appropriate body, who will also ensure that the research is safe and relates to the person's condition. They must also ensure that the research would not be as effective if they use people who have mental capacity. More information on research and its regulations can be found on the Department of Health website.
• New criminal offence
the Act introduces 2 new criminal offences of ill treatment and wilful neglect of a person who lacks capacity. A person found
The Mental Capacity Act Deprivation of Liberty Safeguard was introduced to specifically protect the freedom of people who cannot make decisions over their treatment and care because of a lack of mental capacity.
The Mental Capacity Act Deprivation of Liberty Safeguards is a new law, which came into force on 1st April 2009.
The safeguards are in response to the 2004 European Court of Human Rights judgement involving an autistic man who lacked the capacity to consent who was kept at Bournewood Hospital by doctors against the wishes of his carers. The court found that he had been deprived of his liberty unlawfully, and the Department of Health committed to introducing new legislation to close the 'Bournewood gap'.
These safeguards provide protection for a very vulnerable group of people who are cared for in hospitals or in care homes registered under the Care Standards Act 2000, in circumstances that deprive them of their liberty, and who are unable to consent (but who are not detained under the Mental Health Act 1983).
The safeguards are designed to protect the interests of an extremely vulnerable group of service users and to:
• ensure people can be given the care they need in the least restrictive regimes
• prevent arbitrary decisions that deprive vulnerable people of their liberty
• provide safeguards for vulnerable people
• provide them with rights of challenge against unlawful detention
• avoid unnecessary bureaucracy
What is a Deprivation of Liberty?
Deprivation of liberty has no clear definition. Many people in hospitals and care homes may have their liberty restricted but not all will be deprived of their liberty. The following factors need to be considered:
• Whether professionals have complete and effective control over assessment, care, treatment, contacts, movement and residence
• Whether the person will be under constant supervision and control and not free to leave
• Whether restraint is used including sedation
• Whether the person would be prevented from leaving if they attempted to do so
• Whether a request from carers for the person to be discharged into their care is likely to be agreed
• Whether the person can maintain social contacts
• Whether the person has choice about their life within the home or hospital
Who do the Deprivation of Liberty Safeguards apply to?
The safeguards apply to anyone:
• aged 18 and over
• who suffers from a mental disorder or disability of the mind – such as dementia or a profound learning disability
• who lacks the capacity to give informed consent to the arrangements made for their care and / or treatment and
• for whom deprivation of liberty (within the meaning of Article 5 of the ECHR) is considered after an independent assessment to be necessary in their best interests to protect them from harm
What are the authorities' duties under the Safeguards?
Hospitals and Care Homes (these are called Managing Authorities) have a duty to:
• provide care and treatment in ways that do not deprive a person of their liberty, or if this is impossible;
• apply to the Supervisory Body for authorisation of the deprivation of liberty.
The Council and the Primary Care Trust (these are called Supervisory Bodies) have a duty to:
• assess any person for whom the Managing Authorities request a deprivation of liberty;
• authorise a deprivation if it is necessary and in the best interests of a person to whom the Safeguards apply;
• set any necessary conditions to make sure the person's care/treatment meets their needs in their best interests;
• set a timescale for how long a deprivation can last;
• keep records of who is being deprived of their liberty.
What should I do if I feel a person is being deprived of their liberty?
Discuss the issue with the hospital or care home. They may be able to change a person's care or treatment to make sure the person is not being deprived of their liberty, or may be able to explain why a person is not actually deprived of their liberty.
Request that the Supervisory Body reviews the person to see whether they are being deprived of their liberty. This request can be by telephone, fax or email. There are standard letters available to use.
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