The Mental Capacity Act 2005, in force since 2007, and amended in 2009, to provide for the Deprivation of Liberty Safeguards, has provided:
- …a framework for making it safe, in legal terms, to do the right thing, for people lacking capacity, even if it involves touching a person, restraining them, etc. – the idea being that it can’t be right to take no for an answer, if you think the person doesn’t grasp the risks and consequences of what they’re saying, when they say no.
- … for an aspirational set of principles designed to make us all think at least twice before regarding anyone as lacking capacity to decide something for themselves, or to consent to treatment, whatever their diagnosis – just because we know that they are not functioning ‘normally’…
- …for the principle that if a person does lack capacity – anyone making a decision for that person must do so in their best interests – meaning they must try to figure out what the person would have wanted and try to limit their freedom and rights as little as possible.
- …for the principle that restraint, or restriction of a person, in order to be able to act in a person’s best interests, deserves statutory protection and is now a ‘good’ thing because it isn’t full on deprivation of liberty.
- …formal processes for making decisions for people lacking capacity, when there is a dispute about what should be done for their future – as between family members, a doctor or the council.
- …means for anyone to sort out a decision-maker of their own choosing, for themselves, (whilst the person still has their capacity), for a future date, if that capacity is ever lost – regarding money management and their welfare and medical treatment.
How did it achieve these aims?
- By providing a legal cloak of protection to anyone concerned with the health or welfare of a person, against legal redress, so long as the person concerned went about making their decisions to do whatever they’d done, in a particular way, with regard to the person believed to lack capacity.
- By making concrete the previous woolly legal principle that everyone is presumed to be capacitated for everything, regardless of their history, unless the opposite is established, and by providing a 4 point test for what it takes to establish the opposite (i.e. incapacity on a particular issue).
- By making concrete the notion of best interests decision-making, and making rules about how to arrive at that sort of a decision.
- By setting up a proper Court of Protection for resolving disputes about people with less than full capacity.
- By providing for a new kind of power of attorney, covering health and welfare in the future, as well as a power covering money and property management – and by updating ‘receivership’ into a new status called ‘deputyship’ for those wanting formal decision making status over an incapacitated person.
And through the Code of Practice that must be read alongside the Act:
- The Code applies to everyone but to different degrees – here is the link: http://www.dca.gov.uk/legal-policy/mental-capacity/mca-cp.pdf
- – Under Section 42, specific people are legally required to have regard to the Code – eg LPA holders, deputies, IMCAs and people carrying out research.
- – Two further categories are “people who are acting in a professional capacity for, or in relation to, a person who lacks capacity” (eg doctors, paramedics, social care staff and the police) and “people being paid for acts for or in relation to a person who lacks capacity” eg a care assistant in a care home, a care worker providing domiciliary care services, a friend getting paid out of a direct payment.
- – If you are just an ordinary person and you want the benefit of that important legal shield to invoke, if there’s trouble after you’ve done something for/to your relative or friend, then you also need to have taken the code into account – because even though you are not a worker, it can be taken account of in any legal proceedings.
Some examples, from across the board, as to how the Act applies:
- An ambulance paramedic lifting an unconscious patient or an objecting but delirious person into the back of an ambulance to take them to hospital – neither can consent, in reality.
- A carer in a care home shaving an incapacitated person or cutting their nails – even though he does not understand or welcome the activity.
- A hospital consultant discussing with a patient’s family the patient’s earlier wish not to be resuscitated in a particular situation, thereby respecting a person’s living will in which they refuse treatment in a given situation –
the doctor is the decision-maker, not the family.
- A nurse gaining access to a person’s home, using a key left outside by a relative who no longer knows who it is – the trespass is proportionate to the intention to act in the best interests of the home owner.
- Health and social services’ discharging an incapacitated patient to a care home after the council has consulted the patient’s relatives about the person’s best interests.
- An informal carer stopping a person from eating something inedible, even though the person seems to want it
Can the Court of Protection tell the council what to decide to offer? Or declare existing offers unlawful?
- The Court of Protection is not a judicial review court – for what is meant by this, read this statement from a judge in a case about whether it was in a woman’s best interests to be moved away from her husband into a care home: http://www.bailii.org/ew/cases/EWHC/COP/2011/2420.html – A London Local Authority v MH – in which the judge said
- “I accept the Official Solicitor’s submission that it is not a function of the Court of Protection to determine the legality of local authority’s and NHS’s assessments of the services to which Mr and Mrs H are entitled under the relevant statutory provisions. I also accept that this court cannot direct the local authority or NHS to provide services which they have assessed that Mr and Mrs H do not require or which they have decided at their reasonable discretion not to provide.
- Accepting the lawfulness and validity of the assessments for the purposes of these proceedings, and that the authorities are “within their rights,” does not mean that I am completely powerless.
- For example, in principle, I could decide on Mrs H’s behalf that it is not in her best interests to have contact with particular persons (including professionals) at particular times, or that she should reside somewhere other than envisaged by the service providers. Likewise, I can authorize legal proceedings on her behalf, or the taking of legal advice, and (in appropriate circumstances) authorize the expenditure of any savings she has on additional services. Without expressing any opinion at this stage, in exceptional circumstances it is possible that the cost rules may also entitle me to take into account any unreasonable refusals by either party to compromise or review particular positions taken by them which unnecessarily prolong the proceedings or cause unnecessary distress to Mrs H.
- “Ultimately, they decide what services they are required to provide by statute and I decide on her behalf and in her best interests whether to consent to a particular part of the care or treatment which is offered to her.” [and thus, indirectly whether it is lawful to do what is proposed – and the judge can say it isn’t].
- Although the cost of the difference in relation to the number of care hours amounts only to around £150 per week, which is considerably less than the public cost of this litigation, the local authority has expressed the view that any increase would amount to allowing itself to be “blackmailed” and that it is “a point of principle.” I cannot agree with the “blackmail” point. When discussing their needs with people who have mental health problems and their carers, establishing agreement and a therapeutic rapport through a reasonable compromise of different perspectives is an important aspect of responding to the patient’s needs.
- I can find no evidence which suggests that three hours respite care per week is adequate, only evidence that the local authority has exercised its statutory discretion and, in the context of available resources, cannot afford to provide more. I make that interim finding because it is relevant to why Mr H has been worn down and frustrated, and disengaged from services, which did not help to promote his wife’s best interests.
- The local authority’s submission that Mrs H has care needs which Mr H cannot meet because of the “lack of any … respite provision in his plan to care” is a gross distortion of the truth, given their decision to provide three hours respite per week and his request for more respite care.
- The level of assistance provided to Mr H has placed him under great strain. Much of the conduct which the local authority complains of can be attributed to this lack of respite care. It is, I accept, for the local authority to determine whether he should be provided with more respite, having regard to matters such as their budget and the need to be fair to other service users. However, the solution to this problem, as they have in effect reminded me, lies in their hands, not mine.”
How does one assess capacity ?
- There must be strong evidence of something which seems to be causing an impairment of or disturbance in the functioning of the mind or brain which negates a person’s ordinary reasoning processes and causes an inability to make the decision in question.
- It’s a relative concept, incorporating legal knowledge, a grasp of the pros and cons of the specific issue, familiarity with the person, and not ever a matter of professional qualification, on its own.
- Once past this first question above, the 4 stages of the test are cumulative – like building blocks – and the test must be done in a certain order.
- The evaluation must be issue- and time- and context- specific.
- If it is more likely than not that the person cannotmanage all 4 tasks on a specific issue, then they lack capacity on that matter.
The tasks are absorbing and believing relevant information, simply put over; retaining it long enough to weigh it; weighing it in an objectively observable way, but according to the person’s own subjective values is enough; and then communicating a decision in some shape or form, consistent with a decision having been made.
What if the person is incapacitated on the issue in question?
A decision has to be made in the person’s best interests by whoever is ‘the decision-maker’.
- It will usually be a person’s ordinary family member or a police officer.
- Where a person is/will be dependent on the NHS or the council for services, it will be health or social services, a day care agency manager, a care home provider, a volunteer etc.
- But in other contexts it could also be a solicitor, or a town hall registrar, or a coroner, etc.
- The legal cloak of protection provides a defence to the legal decision-maker, even if someone disagrees with what is then done, and brings proceedings for assault or trespass to the person.
A best interests decision can only be made properly, after …
- consultation of all the relevant consultees – usually the person’s family and friends, and anyone with a respectable interest in the person’s welfare – like a provider…
- and after considering carefully whether there is an effective, less restrictive effective alternative to what is being proposed.
- The outcome need not bethe least restrictive effective thing possible but there has to be a good lawful reason if it is not, such as a legitimate regard to resources, under social care law and human rights law.
- You could say that all this is down to human rights – because treating people in this manner is just showing proper respect for their autonomy, their private and family lives, and their rights to be free of degrading treatment, under articles 8 and 3.
Who decides about capacity in the first place?
- There are three ‘ready reckoner’ ways to resolve this interesting question, in the context of a multi-disciplinary world: ask yourselves the following questions:
- Who is about to touch the person? They needthat precious cloak of legal protection, so theyare the decision maker….
- If it’s not about touching, then who’s going to be paying, or more subtly, whose duty or function, with regard to payment, is next inline to be performed? Is it Health’s or social care’s duty? Or the relative’s , because they were chosen as the attorney, for instance, and don’tactually need the council or NHS’s help or money to take the proposed action?
If that doesn’t sort it out (in a disputed continuing health care case for instance) then ask yourself this: who will be blamed, if nobody does anything, or everyone walks away and takes no for an answer without engaging with the question of capacity?
Who must be consulted before the capacity or best interests decision is taken?
People with a (virtual) right to be consulted under the Act, (ie so long as it is appropriate and practicable to consult them) include:
- Anyone named by the person lacking capacity as someone to be consulted
- Anyone engaged in caring for the person or interested in the person’s welfare (this could include a provider, a trustee, or even an alleged abuser);
- Any attorney appointed by the person under a Lasting Power of Attorney;
- Any deputy appointed by the Court of Protection.
Access to ‘Advocates’ for unbefriended incapacitated people
An NHS body must instruct an IMCA and must take the views of the IMCA into account in decision-making regarding treatment whenever:
- It proposes to provide or secure provision of serious medical treatment (this is now defined in regulations) for a person lacking capacity to consent (other than URGENT treatment or treatment under Part IV of the MHA) AND
- It is satisfied that there is no person, other than one engaged in providing care or treatment in a professional capacity or for remuneration, whom it would be appropriate to consult in determining what would be in the person’s best interests – ie there is no-one at all, personally involved in the person’s life, to take an interest and be consulted.
The NHS is also obliged to appoint an IMCA if putting an incapacitated unbefriended person into long term registered care for NHS continuing healthcare purposes.
- When a council proposes making arrangements under the National Assistance Actor s117 Mental Health Act for the provision of residential accommodation lasting for more than 8 weeks, (unless the arrangements are urgent) for an incapacitated person, or for a change in that accommodation, and is satisfied that there is no-one involved in the person’s life to consult, other than one engaged in providing care or treatment in a professional capacity or for remuneration, it must instruct an IMCA and take account of the IMCA’s views. (This does not apply to supporting someone to move out into a tenancy)
The IMCA’s job is to:
- Provide support to the person so that they may participate as fully as possible
- Obtain and evaluate relevant information
- Ascertain likely wishes and feelings, values and beliefs of the person likely to influence him or her if they had capacity
- Ascertain any alternative courses of action available in relation to the person
- Obtain a further medical opinion where treatment is proposed and the IMCA thinks that one should be obtained
- Challenge or provide assistance in challenging any relevant decision.
If Councils, hospitals and PCTs can just ‘crack on’, under Best Interests, when might it be right or necessary to refer a case to the Court of Protection?
- Where there is genuine doubt or disagreement about the person’s capacity itself – because of the presumption of capacity.
- Or where there is doubt about the existence, validity or applicability of an Advance Decision to refuse treatment (i.e. a living will).
- Or there is major disagreement about whether a particularly serious decision such as irrevocable surgery or deprivation of liberty is in the person’s best interests.
- Where someone suspects that a person who lacks capacity to make decisions to protect themselves is at risk of harm or abuse from a named individual (the court could stop that individual contacting the person who lacks capacity).
What was the Act supposed to do?
- Since it covered everyone (i.e. not just workers, but ordinary members of a person’s family, and anyone who’s involved with anyone lacking capacity, in any regard) it should have meant that people were treated far more individually, rather than by reference to their client group, diagnosis or the unfortunate results of their actions.
- It should have meant that care management and health professionals’ education, training and employment focused on the impact of incapacity, on how staff ‘engage’ with clients and patients, in terms of communication, timing of appointments and sessions, choice of activities, staff ratios and workloads, advocacy and support arrangements, the design of assessment paperwork, commissioning policy, etc.
What has it affected in real life, in practice?
- Medication and personal care issues where one would normally ask for consent and stop if someone says no – home care, care home care, hospitals, day care.
- Sexuality and relationships – at day care, care home care, hospitals, even at home and in supported living.
- Managing people who wander or self-harm – restraint, discouragement, keypad doors in institutional facilities settings (because of the risk of it having become deprivation of liberty, as opposed to proportionate restraint.)
- Dealing with benefits, direct payments and the management of daily financial affairs, assisted shopping, etc – home care and supported living.
- Information sharing, because consent matters here.
The impact of mental incapacity, in relation to social care and support
It affects screening – because a council could not simply ‘signpost’ an incapacitated person away from their statutory right of assessment for community care.
It affects assessment of needs – because of the centrality of the person’s insight into the question of their own needs and appreciation of risks.
It affects care planning, because the council can’t make a person take a direct payment, or a tenancy, if they don’t want to, under a woolly ‘best interests’ approach…
It affects whether there’s effectively a duty to contract for someone – because an incapacitated person can’t, and may not have anyone else with lawful authority to do so, in their place – eg even if it’s a person with assets over the capital threshold for a National Assistance placement; or over the maximum for any subsidy of care costs under Fairer Charging.
Other ways in which it bites…
It affects market development, because of the impossibility of contracting with an incapacitated person, and the procedural difficulty of recovering payment for services – hence the move to Suitable Persons for holding Direct Payments, since November 2009.
It affects safeguarding, because a vulnerable but not completely incapacitated person may still have sufficient capacity to choose to do nothing about an abusive situation – because the pros outweigh the cons – to them. Safeguarding Adults says a person’s consent to a referral to Safeguarding process should always be sought.
And it will affect personalisation, because councils won’t be able to simply abandon incapacitated people to “self-assessment” and a “take-it or leave-it” resource allocation system.
Some ‘blanket’ assumptions from personalisation rhetoric that risk overlooking the difference that incapacity makes to a person’s ability to do things for themselves:
- “Everyone can self-assess”
- “People are always their own best care managers”
- “A Resource Allocation is always better than the legal right to have one’s needs met appropriately, regardless of the council’s available resources in social services…”
- “Everyone’s carers are benign and well-informed and willing to become their loved one’s care manager and their commissioner.”
- “It’s always better to be in the community than in a care home.”
- “Having the money to spend is the very essence of citizenship.”
- “People don’t need any protection beyond the regulatory structure policed by CQC”.
A greater emphasis on rights and law is needed, in an era of personalisation…
- Can a person be ‘PUT’ in a tenancy, just because Valuing People said everyone with a learning disability should live independently and everyone else thinks it would be good for them and for the council?
- Can a person’s mum or dad be given control of a direct payment for an adult person who can’t consent?
- Can staff stop someone having sex with someone if they seem to want to, but the other person is ‘bad’ for the less capacitated one?
- Should we allow an incapacitated person from a culture of arranged marriage to get married to someone chosen for them, if they don’t even grasp what marriage means?
- Can a family member possibly look after an elderly confused relative, properly, and lawfully, by locking them in a room at night?
Putting incapacity into a safeguarding context – Re Z
A woman was suffering from cerebellar ataxia, the condition was incurable and irreversible; it attacked the part of the brain controlling her body’s motor functions. She had become increasingly disabled. She wished to be assisted to commit suicide; her family was initially opposed to this.
Now, reluctantly, her family had decided to support her wishes. Her husband informed the local authority, which had been providing extensive support for his wife, that he was arranging to take her to Switzerland where assisting suicide is not a criminal offence.
The local authority applied to the courts for an injunction, which was initially granted restraining the husband from removing his wife to Switzerland. The Court then subsequently considered the situation. It concluded that the adult protection duties of the local authorities were as follows :-
- to investigate to ascertain their genuine wishes
- to make an assessment of their legal capacity
- to identify that the adult has relevant information and is aware of all options
- to ensure there is no adverse influence on the adult
- to bring the question of capacity before the court if necessary
- to give advice and assistance in allowing the adult to determine their own best interests
- to allow the adult, if capacitated, to make a decision, and allow them to give effect to that decision
- to bring to the attention of the police any suspected criminal behaviour by the person or anyone else
- And then – to stop right there!! If someone is capacitated and wants to end their life, it’s not anyone’s duty to stop them; and if someone wants to stop it, they have to do so lawfully – and councils only have limited statutory powers.
There is a limit, in practice too, regardless of incapacity, perhaps based on an acknowledgement that it is not fair to professional staff, to make them feel that they have no option but to keep someone alive: in a recent case, a hugely troubled and damaged woman won her battle to be allowed to die, after 20 years of anorexia nervosa, borderline personality and alcohol and opiate addiction, all consequential upon being abused as a child. She was incapacitated by her mental illness and be her extremely low body mass index, but she had an iron will and had co-operated with the authorities for long enough to convince all of them that nothing they could physically do for her, and no service that they could ever put in place for her, were she to recuperate, would ever negate her determination to end her life. Her parents and all the psychiatrists were, in the end, convinced that her wishes and feelings and intelligence were such that even if one could clearly state that she lacked capacity as a matter of law, the reality was that she had no desire left to live, and every intention of dying in a dignified manner, over which she was finally exercising control.
The below link (“Guide on the decision-making process regarding medical treatment in end-of-life situations”) provides information about the principles relating to end of life decisions.