Mental Capacity Act workbook: Six scenarios for training

This resource promotes best practice in the use of the Mental Capacity Act 2005 and where appropriate the Deprivation of Liberty Safeguards (2009), particularly in the context of situations involving health related decisions.

This learning resource provides a series of short film scenarios that will challenge the viewer to consider the ethical issues in any given situation, and to encourage debate about potential decision making outcomes. It is the intention that these scenarios illustrate everyday situations, and whilst they may not demonstrate perfect practice, the aim is that they promote discussion and debate.

• Order a DVD or workbook Open

  To order a DVD or workbook by post please contact Peter Barry at Green Shed Video.

  Acknowledgement Open

  This workbook and associated videos were commissioned on behalf of the members of the Eastern Region Safeguarding Adult Forum.

  With thanks to everyone who took part in the making of this learning resource. Specifically, Peter Barry and Marion Dakin from Green Shed Video along with the members of the working group: Kelly Boyce, Tracy Brown, Clive Gibson, Marilyn Harvey, Lisa Poynter, Julie Sadler and Andrea Metcalfe who constantly reviewed the scripts and provided their expert feedback.

  The videos were filmed & produced by Green Shed Video (The Little Green Shed Ltd) ©2016

  The participants in the videos are mostly professional actors although where possible we have also included performances from health care professionals and service users as well.

  Drama script by Samantha Phelps and Marion Dakin with Peter Barry

  Workbook devised & written by Marion Dakin (2016)

• Preface Open

  This resource was commissioned on behalf of Eastern Region Safeguarding Leads to promote best practice in the use of the Mental Capacity Act 2005 and where appropriate the Deprivation of Liberty Safeguards (2009), particularly in the context of situations involving health related decisions.

  The learning resource should be used in conjunction with the legislative framework, namely the Mental Capacity Act 2005. The Act itself includes five principles that must be adhered to, details of the test for mental capacity, what is meant in legal terms by a best interest decision, the role of the Independent Mental Capacity Advocates and the role of the Court of Protection.

  The Mental Capacity Act 2005 Code of Practice provides guidance to people involved in making decisions on behalf of others by focusing “on those who have duty of care to someone who lacks capacity to agree to the care that is being provided.” (Mental Capacity Act, 2005 Code of Practice, TSO 2007). The Code makes clear that whilst its’ status is that of guidance rather than instruction, any person not following it must give “good reason why they have departed from it”. Therefore, for those professionals and others involved in health decision making on behalf of people who lack capacity, they must demonstrate ethical and defensible approaches to the use of the powers given to them by the Mental Capacity Act 2005.

  The law and the Code of Practice are frequently subject to scrutiny and interpretation through situations appearing in the courts (for example the Court of Protection and the Appeal Court). Health professionals therefore need to be mindful of judgements where they provide analysis which is considered to be “case law”. Examples are given where appropriate in this pack to support the scenarios used.

  This learning resource provides a series of short film scenarios that will challenge the viewer to consider the ethical issues in any given situation, and to encourage debate about potential decision making outcomes. It is the intention that these scenarios illustrate everyday situations, and whilst they may not demonstrate perfect practice, the aim is that they promote discussion and debate.

• What does the training package aim to do? Open

  The aim of this training package is to support best practice in the use of the Mental Capacity Act 2005, by encouraging debate about:

  • What would I do in this situation?
  • What would my decision be?
  • How defensible is my decision?

  The scenarios have been designed to stimulate discussion rather than demonstrate “perfect” practice.

  The specific learning outcomes are listed for each of the scenarios later in the pack. All support the effective use of the Mental Capacity Act, the Code of Practice and their application to health care decision making.

• Who might use this training package? Open

  This package can be used by anyone involved in health related decision making.

  Examples include:

  • Doctors in hospital and community settings from any specialism
  • Dentists
  • Nurses
  • Mental Health Professionals
  • Ambulance staff, paramedics
  • Allied Health Professionals
  • Police and other emergency services
  • Support staff and direct care staff

• How can the package be used? Open

  The package consists of 6 video drama scenarios, supporting exercises, & facilitator notes.

  The package provides a flexible learning approach as the scenarios can be used separately, or as part of a programme of learning. Other supporting material such as sample exercises, are included in this workbook. The dramas can also be used by a facilitator with their own discussion exercises.

  Ideas for the use of the video materials are:

  • As a group learning experience

  Each scenario can be used separately. For example, a half hour session at a meeting can be extended to provide a learning session of up to half a day, when combined with other learning materials.

  • As part of an induction programme with individuals or groups of people
  • As a refresher or identified CPD requirement
  • As an individual using the video scenarios and the referenced materials for selfdirected learning

  As a manager, supervisor or person responsible for organising a training session you will need to decide which will be the most effective way to provide a learning opportunity.

  Things for trainers to consider:

  • Existing knowledge base of your anticipated group how much do staff already know about the legislation.
  • Practical time availability for the session
  • The minimum time is five minutes viewing of the scenario plus a minimum of 10 minutes discussion time.
  • Individuals could use the scenarios for personal learning, although the scenarios are designed to challenge decision making which is potentially more effectively achieved with a minimum of two learners.

• Designing your training sessions Open

  For each scenario, there are sample exercises in the pack and some key points for the facilitator to bring out with the learners. Depending on the identified learning and development need, these exercises can be adapted. More experienced trainers may, if they wish, develop their own exercises to use with the scenarios. For example: completing a copy of your organisations’ “assessment of capacity” recording document in relation to the characters in the scenarios. This can then be critiqued in relation to what the viewer has recognised as important in the scenario.

  It is strongly recommended that facilitators make themselves familiar with the Mental Capacity Act Code of Practice. In addition, there are other resources such as local protocols for consent to treatment, safeguarding adults and for the deprivation of liberty that should be considered. These will also be beneficial to many of the scenarios. Where appropriate, reference has been made to legal cases in this pack. The links provided will either take the reader to a case commentary or the full text from the judgement.

  For the novice facilitator, a few helpful hints:

  • View the video scenarios before using it with your group
  • Plan the session for your group
  • Start with a quick refresher on the principles of the Act
  • Try out the exercises to predict what questions may arise, review the facilitators discussion points (crib notes)
  • Find out if anyone will need large print for handouts
  • Tell participants how long the session will last and stick to it
  • Set behavioural or ground rules such as how poor practice might be challenged
  • If you don’t know an answer to a question, say so
  • Give typical examples from the participants’ work base setting
  • Use or have available copies of the local recording protocols such as assessment of capacity and best interests decision making tool
  • Evaluate the training so that you can make improvements (Level 1 Evaluation) as appropriate, link the learning and development to organisational goals. Use follow up surveys to judge impact of learning and development on behavioural changes of participants

  Structuring your session

  • Provide a brief introduction to the session(s).
  • Tell the group why the session is important to them or those people they provide a service to.
  • Highlight for participants what the session content will be.
  • When and where there are exercises and discussions.
  • Highlight for participants where to get more information and guidance from.

  Hints and tips for large audiences: the use of live polls can effectively engage larger groups, for example, over 20 people. Use audience participation programmes like slido which is free for basic use, working from participants’ mobile phones so requires wifi access. Sample poll questions are included for each scenario.

• Further sources and reference materials Open

  • The Mental Capacity Act 2005 HMSO
  • Mental Capacity Act 2005 Code of Practice (TSO 2007)
  • Mental Capacity Act 2005 Deprivation of Liberty Safeguards supplement to the main Code of Practice (TSO 2009)
  • Deprivation of Liberty Safeguards (DoLS) Handbook, Aasya F Mughal and Steven Richards (Bookwise Publications Ltd 2015)
  • Deprivation of Liberty, Collected Guidance, the Law Society (2016)
  • A Practical Guide to the Mental Capacity Act 2005, putting the principles into practice Matthew Graham & Jakki Crowley (JKP 2015)
  • Grandpa on a Skateboard, the practicalities of assessing mental capacity and unwise decisions, Tim Farmer (Rethink Press 2016)
  • A Clinician's Brief Guide to the Mental Capacity Act 2nd Ed., Nick Brindle et al (RC Psych Pubs 2015)
  • A Clinician’s Brief Guide to the Mental Health Act 4th Ed., Tony Zigmond & Nick Brindle (RC Psych Pubs 2016)
  • The Mental Capacity Act 2005, a guide for practice 3rd Ed., Brown, Barber& Martin (Sage Learning Matters 2015)
  • Mental Capacity Act Manual, Richard Jones 7th Ed., (Sweet and Maxwell 2016)
  • Court of Protection Made Clear, A User’s Guide, Mr Justice Keehan et al (Bath Pub 2016)
  • Consent to Treatment, Jane Lynch (Radcliffe Pub. 2011)
  • Medical Treatment Decisions and the Law, 3rd Ed., Christopher Johnston (Bloomsbury Professional 2016)
  • Medical cases in which 39 Essex Chambers have been involved
  • Legal Websites: 39 Essex, Barristers’ Chambers
  • UK Human Rights Blog from 1 Crown Office Row barristers' chambers
  • Mental Health Law Online

• Facilitators notes: Discussions from the suggested exercises Open

  Assessment of capacity

  Assessment of Capacity -see chapter 4 of the code of practice, ideally all “learners” should revisit this chapter.

  Guides from other legal sources are also strongly recommended e.g. Mental Capacity Law Guidance Note: A brief guide to carrying out capacity assessments is a useful handout/reference document for all participants.

  Facilitators notes: Assessment of capacity

  • What do you believe to be the specific question (decision) that the assessment of capacity should be based on?
    This needs to be decision specific, rather than a more generalised question.
  • How specifically is the diagnostic element of the test met?
    There must be a relationship between the impairment or disturbance in the mind or brain and the decision to be made, i.e. having a learning disability doesn’t mean that it affects decision making in all areas of life. The Courts have challenged the generalised approach to the “diagnostic” test. It would appear that the most practical way to proceed is
    A. Support the person in the way information is given (i.e. ensure best practice in communication).
    B. Can the person make the decision?
    C. If they can’t make the specific decision in question- is it because of the disturbance in the mind or brain?
    This approach supports principle one- the presumption of capacity and principle 3 the right to make unwise decisions.
    Code of practice reference: 4.11 and 4.13
  • What would you anticipate to be the relevant type of information that should be given to the patient for this decision? How can the patient be supported?
    Principle two must be followed making sure that best practice is promoted around ensuring the person’s abilities to participate are maximised. This includes language, pictures and symbols, involvement of others, venue of assessment, understanding how the patient’s health may influence their abilities.
    Information needs to cover the nature of the decision, why the decision is needed; the consequences of the decision or not making a decision.
    Good contemporaneous notes are important to illustrate what and how information was given.
    Code of practice reference: 4.49
  • Where should the bar be set concerning the person’s ability to weigh up the relevant information?
    There is considerable case law to indicate that the requirement to weigh is at a lower level than many professionals set it. So, foreseeing the immediate risks would be important but the longer-term consequence is not necessary.
    Code of practice reference: 4.21
  • Where someone has apparent fluctuating capacity, what is best practice in situations where there are issues of consent to treatment?
    This includes issues such as assessing at the best time of day for patients; however the urgency of the decision to be made will influence how practitioners proceed.
    Code of practice reference: 4.26
  • How would an assessment of capacity be recorded?
    Your local recording tool should be made available and consideration given to where this fits with a consent to treatment documentation
    Code of practice reference: 4.61

  Best interests decision making

  Best Interests Decision Making-see chapter 5 of the code of practice, ideally all “learners” should revisit this chapter.

  Guides from other legal sources are also strongly recommended Mental Capacity Law Guidance Note: A brief guide to carrying out best interests assessments is a useful handout/reference document for all participants.

  Best interests decisions must follow the “legal checklist” given in the code of practice (5.13)

  Facilitators notes: Best interests decision making

  • What would you need to take into account? What options are there? Guidance on who is the decision maker is given at 5.8 & 5.11 of the Code of Practice
    Identification of options is important, usually resources must be taken into account Specific guidance is given in the code of practice in relation to life sustaining treatment.
    Code of practice reference: 5.29
  • Who would you involve in the process of best interests decision making?
    Consultation is important, involvement of relevant parties, depending on the urgency of the decision. This may be fewer people than at other times, based on practicality. Code of practice reference: 5.49.
    Where there is no one else other than professionals then IMCAs have a specific role in certain types of decision making. IMCAs are not the decision makers. Code of practice reference: Chapter 10.
  • How could you involve the person in the process of best interests decision making?
    Despite the person’s lack of capacity wherever possible the person should be involved in the decision-making process. People can often still express important preferences.
    Code of practice reference: 5.21
  • What weighting would you give to the person’s past and present wishes?
    This is a crucial aspect of best interests decision making, since the implementation of the Act, the Courts have given greater weight to the person’s past and present wishes and feelings.
    Code of practice reference: 5.37 and 5.40
  • How would you expect the least restrictive principle to be demonstrated in the person’s situation?
    This should be identified through all the options that have been considered. Code of practice reference: 5.13
    The issue of whether a best interests decision can involve moving a person or to transport them is covered in the code of practice for the MCA (and referred to in the Code of practice for DoLS 2.14 when considering restraint). Code of practice reference: 6.11
  • In what circumstances would you need to refer to legal advice?
    Issues of disagreement between professionals and others involved such as family or indeed the patient.
    Withdrawal of life sustaining treatment in particular circumstances.
    Code of practice reference: Chapter 15
  • How would you record a best interests decision? For example, using a balance sheet approach?
    Local protocols should be followed. (Perhaps some poor practice examples may be useful?)

• Downloads charts Open

  • Mental Capacity Act 2005
  • Best interest decisions making

Trevor

An 82 year old gentleman with a gangrenous lower leg following an accident at home, now refusing amputation to his leg. The dilemma for the professionals involved in this situation is whether the gentleman has capacity and whether amputation of his limb is required.

Susie

A lady in her sixties who needs renal dialysis. The dilemma for the professionals involved in this situation is whether Susie has capacity or not. If she hasn't, should she have dialysis in her best interests to save her life, despite her recent attempt to end her own life?

Teresa

A lady who is accommodated in a care home. Teresa is determined to go home despite the identified risks. She is currently subject to DoLS. The dilemma for the professionals involved in this situation is whether it is in Teresa's best interests to return home. Can the relevant community support reduce the risk to an acceptable level or would this be neglect?

Darren

A young man with a learning disability who potentially needs dental treatment. The dilemma for the professionals involved in this situation is who should assess Darren's capacity to make decisions about his dental treatment? If treatment in hospital were necessary using the MCA, would any restraints meet the threshold for DoLS?

Isabella

A young female student with cerebral palsy who has collapsed and been taken to hospital late at night. She is unconscious. The dilemma for the professionals involved is who should they consult when there is no immediate next of kin? Potentially if Isabella needs serious medical treatment does this fall within the doctors' duty of care regardless of the MCA? Should issues such as DNACPR be considered?

Arthur

A retired postman living in poor circumstances, he has had a fall but is refusing to let the ambulance crew take him to hospital. He appears to be under the influence of alcohol. The dilemma for the professionals involved in this situation is should they leave Arthur where he is based, on a presumption of capacity, or should his mental capacity be formally assessed?