Assessing the mental health needs of older people

Mental capacity

Introduction

This section outlines the key dimensions of the 2005 Mental Capacity Act. With reference to older people, the Act mainly applies to people with advanced dementia and their carers.

Summary: Mental capacity

An estimated two million people in the UK are unable to make decisions for themselves because of disability, mental illness, brain injury or dementia.

With reference to older people, the Mental Capacity Act 2005 mainly applies to those with advanced dementia and their carers.

• The Act provides a statutory framework for people who may not be able to make their own decisions: it sets out who can take decisions, in which situations, and how they should go about this.
• The Act is underpinned by the following principles:
• A person must be assumed to have capacity unless it is proved otherwise.
• A person cannot be considered unable to make a decision unless all 'practicable steps' have been taken to help him or here do so
• A decision made on behalf of a person who lacks capacity must be made in his or her 'best interests'.
• The key provisions of the Act are:
• A 'best interests' checklist for people acting on behalf of those people who lack capacity, which includes consideration of the person's wishes, feelings, beliefs and values, and those of their friends and family.
• People can appoint an attorney to act on their behalf if they should lose capacity in the future. This provision can cover health and welfare decisions as well as financial ones.
• Deputies with similar powers can be appointed by the Court of Protection to make decisions on behalf of a person who lacks capacity.
• Carers and professionals can lawfully care for someone who cannot consent without incurring liability.
• The creation of two new public bodies: a new Court of Protection and a new Public Guardian.
• The creation of an Independent Mental Capacity Advocate to support and represent people lacking capacity who have no one else to speak for them.
• Statutory recognition of advance decisions ('living wills') which enable people to set out in advance how they wish to be treated should they lose capacity in the future.
• Introduction of a new offence of ill treatment or neglect of a person who lacks capacity.
• There is opposition to the Act as it stands: concerns focus on a lack of firm proposals for patient safeguards and no identified system of appeal by the person deemed to lack capacity.
• As dementia often increases the likelihood of things being done to the person rather than with or by them, the following aspects are likely to be beneficial: the emphasis that the Act places on 'decision specific' assessment of capacity; engaging with approaches to communication that can support decision making; and maximising people's ability to make choices.
• Recognition of the need to assess an individual's capacity in a systematic way is also positive.

Introduction

The Act was introduced in response to widespread concerns about the limited account taken of the voices and rights of adults who may 'lack capacity' in decisions about their care and treatment. This particularly applies to decisions about psychiatric treatment and the support of people in long-term care. What has become known as the 'Bournewood judgement', dealing with the case of a man with learning difficulties detained in hospital without resort to a 'section', was a key driver to developing legislation as it highlighted the lack of safeguards for patients who have limited long term capacity.

The Mental Capacity Act is an important piece of legislation, clarifying, strengthening and protecting the rights of people who wish to plan for their future in the event of becoming incapacitated, as well as the rights of those who currently lack capacity. It also clarifies the rights and duties of the carers and professionals who assist such people.

There are an estimated two million people in the UK who are unable to make decisions for themselves due to disability, mental illness, brain injury or dementia.

The Mental Capacity Act 2005

The Mental Capacity Act 2005, covering England and Wales, provides a statutory framework for people who may not be able to make their own decisions. It deals with who can take decisions, in which situations, and how they should go about this.

Five principles are set out at the beginning of the Act:

• 'A person must be assumed to have capacity unless it is established that he lacks capacity.
• A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
• A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
• An act done, or decision made, under this Act for, or on behalf of, a person who lacks capacity must be done, or made, in his best interests. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person's rights and freedom of action.' (54)

The Act includes provisions for people to act on behalf of someone who cannot make decisions for themselves:

• Best interests - The Act has a 'best interests' checklist for people acting on behalf of others. This includes consideration of the person's wishes, feelings, beliefs and values (including any written advance statement they made when they had capacity) and taking account of the views of their friends and family. When considering what would be in someone's best interests in relation to life-sustaining treatment, the decision maker must not be motivated by a desire to bring about the person's death.

• Lasting Powers of Attorney - People will be able to appoint an attorney to act on their behalf if they should lose capacity in the future. This is like the current Enduring Power of Attorney, which covers financial decision making, but the Act also allows people to choose an attorney to make health and welfare decisions.

• Court-appointed deputies - Deputies can be appointed by the Court of Protection to make decisions on behalf of a person about matters in relation to which that person lacks capacity. This replaces the current system of receivership covering financial decision making and extends it to include health and welfare.

• Acts in connection with care or treatment - Under the Act, carers and professionals, subject to rules and limitations, can lawfully care for someone who cannot consent without incurring liability, for example by giving an injection or by using the person's money to buy essentials for them.

Assessing capacity

The Act defines 'lack of capacity' as inability to make a decision in relation to a specific matter. This means that an individual should be assessed on their capacity to make each decision. A person who is considered to lack capacity for a particular decision therefore may not necessarily lack capacity to make other decisions. So no one can be labelled 'incapable' as a result of a particular medical condition or diagnosis (such as dementia). It is recognised that most people - however limited their overall capacity is - are able to make many of their own day-to-day and care-related decisions, even if they may lack capacity in relation to more complex decisions in areas such as finances. Every effort must be made to communicate - using whatever means necessary - to engage the person in decision making and maximise their engagement.

The Act sets out a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time. It is for the person making the assertion of incapacity to prove that the patient lacks capacity. The test is 'on the balance of probabilities'.

The Act also creates two new public bodies:

A new Court of Protection - The new Court will have jurisdiction in relation to the Mental Capacity Act. It will have special procedures and judges.

A new Public Guardian - This new public official will take over from the current Public Guardianship Office. The Public Guardian will be the registering authority for Lasting Powers of Attorney and deputies appointed by the Court of Protection to make decisions on behalf of a person who lacks capacity, and will work with other agencies such as the police and social services to respond to any concerns.

Other provisions in the Act are:

• Independent Mental Capacity Advocates - The Act provides for an advocate to support and represent people lacking capacity who have no one else to speak for them. This will apply in relation to serious medical treatment and long-term residential care and a regulation-making power allows this to be extended to other people and circumstances.

• Advance decisions to refuse treatment ('living wills') - Advance decisions to refuse treatment enable people to set out in advance how they wish to be treated should they lose capacity. They are already legally binding under common law. The Act puts the process on a statutory basis and introduces provisions that set out exactly when an advance decision applies, and to which treatments. If a doctor has any doubt about the advance decision, he or she can provide treatment without fear of liability.

• Criminal offence - The Act introduces a new offence of ill treatment or neglect of a person who lacks capacity, which carries a maximum sentence of five years. (55)

The Act also has specific relevance for older people using services including care home residents. The Commission for Social Care Inspection (CSCI) welcomes the intention of the Act to protect the financial and legal rights of people using services. Protection of rights is also reflected in CSCI policy on National Minimum Standards for services; this is discussed in the section on Care standards.

Implications of the Act for older people

A number of the key features of the Mental Capacity Act 2005 are likely to be of benefit to older people with long-term mental health problems - particularly dementia - and their carers.

The emphasis on assumption of capacity, unless proven otherwise, and on the rights for individuals to be supported to make their own decisions, are of pivotal importance. Mental vulnerability often increases the likelihood of things being done to the person rather than with or by them. The focus on 'decision specific' assessment of capacity and the principle that no one should be labelled 'incapable' as a result of a particular medical condition such as dementia is also a crucial policy shift. The combined impact of these principles make it more likely that older people with impaired or fluctuating capacity will be involved in decisions about their care and treatment, even if more complex decisions relating to finances are managed by a third party. Such involvement should include decisions about medication, an issue about which there is widespread concern in the care home sector, where drugs can be inappropriately used as a method of control or 'chemical restraint'. Greater expectation of involvement by people with dementia also places greater emphasis on practitioners' engagement with approaches to communication that can support decision making and maximise people's ability to make choices.

Recognition of the need to assess an individual's capacity in a systematic way is also positive, as up until now there has been considerable variation both in methods of assessment and in whether capacity is routinely assessed at all. Carers should play a more significant role: their views should be taken account of in the assessment of capacity and they gain a right to be consulted about related care and treatment decisions.

The appointment of Independent Mental Capacity Advocates (IMCA) will be of particular benefit to older people with mental health problems who have no relatives or friends to act on their behalf. For older people with advanced dementia who have no relatives and live alone, an IMCA may perform a useful role in ensuring that decisions about care home placement is in the person's 'best interests' - another guiding principle of the Act. The Act provides a checklist of factors that decision makers must work through in deciding the 'best interests' of the person without capacity. This includes consideration of the person's wishes, feelings, beliefs and values (including any written advance statement made by them when they had capacity) and taking account of the views of family and friends.

For some older people without dementia, and those in the early stages, 'advance decisions to refuse treatment' may be a useful mechanism to ensure their wishes are recorded and taken account of in the event of loss of capacity in the future. The provision for people to appoint an attorney (Lasting Power of Attorney) to make health and welfare decisions as well as managing financial matters if they should lose capacity in the future is another useful feature of the Act. The appointed attorney will have the ultimate say in what should be done for the individual, including making medical decisions Present law does not allow for proxy decision makers in medical matters.

The Act also introduces a new criminal offence of ill treatment or neglect of a person who lacks capacity. As dementia is a known risk factor for abuse, this is to be welcomed. There is however a recognition that where a person is providing care for someone who lacks capacity, they will not incur legal liability in the ordinary course of caring, e.g. for bathing them or giving them prescribed medication, as long as it is in the person's 'best interests'. (See also Protecting vulnerable adults.)

Further information

For more about the Bournewood judgement and its implications, see Bournewood patients: The common law is not enough (Hempsons Solicitors leaflet).

Government has announced proposals for ensuring that the law for England and Wales on the treatment and care of people suffering from a disorder or disability of mind, who lack capacity and who need to be deprived of liberty is compliant with the European Convention on Human Rights. These proposals will strengthen the rights of patients and those in care, as well as ensuring compliance with the European Convention on Human Rights (ECHR).

The provisions will be introduced into the Mental Capacity Act 2005 through a Bill that will also amend the Mental Health Act 1983.

To access a copy of the Written Ministerial Statement, go to the Department of Health website at www.dh.gov.uk , go to 'Mental Health Law' and then 'Latest developments on amending the Mental Health Act 1983.'

To access a copy of the report, go to the Department of Health website at www.dh.gov.uk , go to 'Bournewood' and then 'Protecting the vulnerable: the Bournewood consultation - summary of responses.'

For a copy please go to the Bournewood proposals briefing sheet.

An online version of the Mental Capacity Act is available at the website of the Public Office of Information.

The Change Agent Team website lists a range of useful documents on the Mental Capacity Act, including a summary and an overview of key points.

A 'customer guide' to the Act (PDF) is available on the Mencap website.

A draft code of practice (PDF) is currently available from the Department for Constitutional Affairs. More detailed guidance on the implementation of the Act will be available to families, professionals and carers soon.

The Association of Directors of Social Services' website provides a Response to the Bill.

The Royal College of Psychiatrists offers a briefing on the Bill.

The Making Decisions Alliance brings together a wide range of organisations and groups working with people who may, for a range of different reasons, have difficulty in making or communicating decisions. The alliance's website contains a statement on the Mental Capacity Act.

Next: Protecting vulnerable adults

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