Teresa – scenario for training
Mental Capacity Act workbook
Commissioned by, and hosted here on the MCA Directory on behalf of, the members of the NHS Eastern Region Safeguarding Adult Forum facilitated by Eleanor Sherwen & Sarah Robinson.
View here online or order a DVD or workbook
For participants to recognise that
- The principles of the Mental Capacity Act are law
- Assessment of capacity must be decision specific
- If it is decided that the person lacks capacity, the decision maker, must make a best interests decision based on; a balance sheet approach, consultation and taking into account the patient’s current views and wishes as well as any expressed previously.
- If a person is deprived of their liberty, it must be in the person’s best interests and using the least restrictive approach. The person’s deprivation must be formally authorised through the appropriate process
- Defensible decision making is important by the Care Home Manager and the District Nurse
- There are decisions that may need to be discussed with legal services for support and potential referral to Court of Protection. For example, where there are conflicts between viewpoints about what is in the person’s best interests
Teresa is a West Indian woman, single, aged 72. She worked at a local business until she retired at 60. A loner, she never really made any friends and rarely told anyone much about herself. She was diagnosed with diabetes just before she retired. She managed her diabetes with diet and later with oral medication. She attended the local church about once a month. She always sat alone and never joined in with any of the social activities. She was polite but not one to initiate conversation. She was known to members of her congregation as a "woman of mystery". In the last two years her behaviour has changed significantly. Her neighbours have been concerned about her odd behaviour such as shouting at the children in the garden and calling for her mother (who has been dead for years). She has had unprovoked outbursts of aggression. On one recent occasion, a neighbour saw her lying, having fallen in the garden and called an ambulance. She was admitted to hospital. She was then moved into a care home after a short hospital admission. This was considered by the multidisciplinary team at the hospital to be the best course of action for Teresa, as her diabetes was not stable and she had become insulin dependent. There were concerns that she had dementia. She was willing only to go for a short stay at the care home initially. This has now become a more permanent arrangement. During her stay her dementia and inability to manage her own medication have become more apparent. An assessment of capacity has been made by the home's manager as part of the care plan. There was only one assessment that wasn't decision specific. This was the evidence used for the Deprivation of Liberty Safeguards (Do LS) application.
Current decision making issues for the professionals involved
As part of the authorisation process for the DoLS, the Best Interests Assessor (BIA) has assessed capacity for the living arrangements. A lack of capacity is concluded, however the BIA has now questioned whether the placement is the least restrictive. The local nursing team is very concerned about the level of risks for this patient if she were to return home. The community nursing team is under considerable pressure in her locality. How should a best interests decision be reached? The District Nurse has called into discuss the matter with the home’s manager.
The ethical decision
The ethical issue for the professionals involved is how to care for Teresa in the least restrictive way whilst acknowledging that there will be some potential risks. For the professionals involved they need to know how far they can go in perhaps making a medical intervention in the person’s best interests when the person is living in their own home. How far can resources be taken into account when considering the best interests options?
- Discussion: Who do you think should take the role of decision maker for the various decisions needed in Teresa’s situation? For example, where she lives, health issues such as her diabetes, day to day needs such as personal care and food preparation.
Decision: Who might be the DECISION MAKER in relation to the Mental Capacity Act issues?
- Where Teresa lives
- Health issues
- Dementia care issues e.g. further assessments of her mental health and cognitive abilities
- Medical treatments to be given
- Day to day living needs e.g. shopping/food
- Personal care needs e.g. washing /dressing/ feeding
- Social/religious needs e.g. church
- Consideration of whether the living arrangements in a community setting amount to a deprivation of liberty
Discussion: How should an assessment of capacity be carried out if you feel this is appropriate to a specific decision?
- What do you believe to be the specific question (decision) that the assessment of capacity should be based on?
- How specifically is the diagnostic element of the test met?
- What would you anticipate to be the relevant type of information that should be given to Teresa for this decision? How can Teresa be supported?
- Where should the bar be set concerning Teresa’s ability to weigh up the relevant information?
- Where someone has apparent fluctuating capacity, what is best practice in situations where there are issues of consent to treatment?
- How would an assessment of capacity be recorded?
- What guidance does the Code of Practice give that you would need to take into account in such a situation? (chapter 4)
Discussion: If it is decided that teresa lacks capacity about a specific decision(s), how would you approach making a best interests decision?
- What would you need to take into account? What options are there? Where there are several decisions involved, how would such a complex situation be dealt with?
- Who would you involve in the process of best interests decision making?
- How could you involve Teresa in the process of best interests decision making?
- What weighting would you give Teresa’s present and past wishes?
- How would you expect the least restrictive principle to be demonstrated in Teresa’s situation? Where would the deprivation of liberty issue be considered?
- In what circumstances would you need to refer for legal advice?
- How would you record a best interest decision(s)? For example, using a balance sheet approach? How far can resources be taken into account?
- What guidance does the Code of Practice give about best interests decision making? (chapter 5)
- What is your decision for Teresa?
Poll question 1
Do you believe it is in Teresa’s best interests to return home?
- Not sure
- Do you believe it is in Teresa’s best interests to return home?
Poll question 2
Do you believe resources should be taken into account in making a best interests decision?
- Not sure
- Do you believe resources should be taken into account in making a best interests decision?
Cases from the court of protection
Case M a woman living in a care home where the imca supported her to have her situation heard in court. Decision: despite risks the court allowed her to return home
In the case Re M [2013 EWHC 3456(COP) a diabetic lady who had been resident in a care home from the previous year, lacked capacity about her medical care; her diabetes. However, she wished to go home. This carried risks. She said that if she stayed at the care home she would seriously self-harm. The judge attached considerable weight to her wishes and terminated the DoLS standard authorisation, therefore allowing her to return home with a care package.
Case KK a woman who was resident in a care home but maintained she wanted to go home despite her history of not managing because of her physical and mental health. Decision: the court decided she did have capacity despite professionals’ views of her understanding, therfore she could return home with support
In a case before the Court of Protection CC v KK and STCC  EWHC 2136 (COP) judgement, an elderly woman who was considered to be at risk at home had been subject to DoLS in a care home. However, she maintained she wanted to go home, and there were several assessments of her capacity, concluding she lacked capacity.
However, the judge felt she could understand sufficiently and cautioned against professionals being “risk adverse” he commented 25… [T]here is a risk that all professionals involved with treating and helping that person – including, of course, a judge in the Court of Protection – may feel drawn towards an outcome that is more protective of the adult and thus, in certain circumstances, fail to carry out an assessment of capacity that is detached and objective. On the other hand, the court must be equally careful not to be influenced by sympathy for a person’s wholly understandable wish to return home.”
Para 69 KK may lack the capacity to understand and weigh up every nuance or detail. In my judgment, however, she does understand the salient features, and I do not agree that her understanding is "superficial".