Mental Capacity Act 2005 Procedure

Publication: 14/02/2014  
Next review: 31/03/2024  
Clinical Policy
CURRENT 
ID: 3742 
Supported by: Mental Health Legislation Steering Group
Approved By: Executive Team 
Copyright© Leeds Teaching Hospitals NHS Trust 2021  

 

This Clinical Policy is intended for use by healthcare professionals within Leeds unless otherwise stated.
For healthcare professionals in other trusts, please ensure that you consult relevant local and national guidance.

MENTAL CAPACITY ACT 2005 PROCEDURE

Staff Summary

  • This procedure is designed to ensure that all acts of care and treatment delivered by Leeds Teaching Hospitals Trust comply with the legal requirements of the Mental Capacity Act 2005.
  • The Mental Capacity Act sets legal limits on whether or not a decision can be made for a person aged 16 or older by anyone else, including whether or not healthcare professionals can make decisions about care and treatment.
  • If someone lacks mental capacity, the Mental Capacity Act sets legal controls on how the decision must be made for them. Primarily, it requires all decisions to be made in their best interests.
  • All staff providing care or treatment to patients or making decisions about care and treatment for patients must act within the legal requirements of the Mental Capacity Act and within this procedure.
  • The Mental Capacity Act creates a large number of related legal duties. To address these duties in the most simple way possible, this procedure has been divided into four separate processes, which can be engaged in separately. Appendices A to D contain single-page flowcharts that contain overviews of each of these four processes:

The MCA/MHA team (Mental Capacity Act and Mental Health Act) can be contacted for advice and support:

Extension: 65011 / Email: mca.mha@nhs.net
Mobiles: 07768556240, 07788304709, 07887878590
Intranet pages.

Back to top

1. PURPOSE

The purpose of this procedure is to ensure that all acts of care and treatment delivered by Leeds Teaching Hospitals Trust, or on behalf of it, comply with the legal requirements of the Mental Capacity Act 2005.

The Mental Capacity Act controls how and when a healthcare decision can be made on behalf of a person aged 16 or older who cannot make their own decision due to ‘an impairment of, or a disturbance in the functioning of, the mind or brain’.

Back to top

2. SCOPE

This document applies to all staff involved in planning or delivering care or treatment to patients aged 16 or older who might lack capacity to make one or more decisions.

Any staff member involved in patient care must act in accordance with this policy and any associated guidance when either delivering care or treatment to a patient who may lack capacity or making decisions on behalf of patient who has been found to lack mental capacity.

Back to top

3. DEFINITIONS/ ABBREVIATION

ADRT: see ‘Advance Decision to Refuse Treatment’

Advance Decision to Refuse Treatment: a legal power that can be exercised by anyone aged 18 or older who has mental capacity, allowing them to refuse particular treatments when they lack the mental capacity to do so in the future. See 4.3.2 and the LTHT Advance Decision to Refuse Treatment Procedure.

Best interests: the Supreme Court has described best interests as the patient’s ‘welfare in the widest sense, not just medical but social and psychological’, see 4.3.5.

Capacity assessment: an evidence-based assessment of whether or not a person is able to make a particular decision at a particular time, see 4.2.

Code of Practice: The Mental Capacity Act Code of Practice.

Court of Protection: a court with legal powers to determine a wide range of questions related to mental capacity, see 4.3.2.
CSU: Clinical Support Unit.

Deprivation of Liberty Safeguards (DoLS): a legal regime created by the Mental Capacity Act and intended to ensure that there is independent scrutiny if a patient is deprived of their liberty). See 4.3.6 and the LTHT Deprivation of Liberty Safeguards Standard Operating Procedures.

Deputy: the Court of Protection has the power to appoint a deputy to make decisions on behalf of a person who lacks mental capacity. If an issue is one that falls within a deputy’s power, then their decision is binding, see 4.3.2.

Disturbance: see ‘impairment’.

DoLS: see ‘Deprivation of Liberty Safeguards’.

Functional inability: an inability to understand, retain, use, or weigh relevant information or an inability to communicate a decision, see 4.2.3.

IMCA: see ‘Independent Mental Capacity Advocate’.

Impairment: only a person with an ‘impairment of, or disturbance in the function of, mind or brain’ can be found to lack mental capacity, see 4.3.2.

Independent Mental Capacity Advocate: A person appointed to provide support and representation to a patient who lacks capacity to make a specific decision, see 4.3.4.

Lasting Power of Attorney: a legal power that can be exercised by anyone aged 18 or older who has mental capacity, allowing them to appoint an attorney to make best interest decisions for them when they lack mental capacity. If an issue is one that falls within an attorney’s power, then their decision is legally binding.

LPA: see ‘Lasting Power of Attorney’.

LTHT: Leeds Teaching Hospitals NHS Trust.

MCA: see ‘Mental Capacity Act’.

Mental Capacity Act: the Mental Capacity Act 2005, an Act of Parliament that contains the law dictating when a person aged 16 or older can be found to lack mental capacity, how decisions must be made for people who lack mental capacity, and related matters.

Serious Medical Treatment’: treatment decisions that may require an IMCA to be appointed. See 4.3.4.

Back to top

4. PROCEDURE TO BE FOLLOWED

4.1 Before assessing mental capacity

This part of the procedure is summarised in a 1-page flowchart in Appendix A.

Links to Core Principles:

  • A person must be assumed to have capacity unless it is established otherwise.
  • A person is not to be treated as unable to make a decision, unless all practicable steps to help them to do so have been taken without success.

Before assessing mental capacity it is necessary to perform the following three tasks:

4.1.1 Identify the decision or decisions that have to be made.
4.1.2 Support the patient to decide, as far as possible.
4.1.3 Identify who should assess capacity.

The Mental Capacity Act requires professionals to ‘have regard to’ the Code of Practice. It should be consulted as appropriate throughout this process.

4.1.1. Identify the decision or decisions that have to be made

Under the Mental Capacity Act, mental capacity or incapacity is not universal. Someone might have mental capacity to make one decision at the same time as lacking mental capacity to make another decision. A capacity assessment is therefore an assessment of a patient’s ability to make a particular decision at a particular time. For this reason, anyone assessing capacity must identify what particular decisions they are assessing the patient’s ability to make.

Occasionally, there may be no active decisions to make. If so, then because capacity is capacity to make a particular decision, there is no need for a capacity assessment.

When considering what decisions must be made, consider the options that would be offered to a patient who definitely had mental capacity in the same circumstances.

4.1.2. Support the patient to decide

The Mental Capacity Act forbids finding anyone to lack mental capacity unless every practical step has first been taken to support them to make the decision themselves.

What support it is practical to provide will vary depending on the circumstances. Nevertheless, the following steps should be taken where possible:

  • Make the patient feel at ease: Consider the optimal time and location for both supporting the person to decide and assessing their mental capacity.
  • Make reasonable adjustments: For instance the patient may benefit from having the support of another person or the input of a specialist team such as the LTHT Learning Disability and Autism Team. Some people may also need more time to digest important information.
  • Provide the relevant information: Ensure that the patient has information they need to make that specific decisions in question.
  • Communicate in an appropriate way: Use simple language and avoid jargon, take into account the particular needs of the individual, and use appropriate communication aids. Some people find the use of pictures or objects helpful. Seek input from the patient’s family, friends, or carers or from Speech and Language Therapy as appropriate.

4.1.3. Identify who should assess mental capacity

The Mental Capacity Act only provides a legal defence to a healthcare worker providing care or treatment to a patient without mental capacity if they have taken ‘reasonable steps’ to assess capacity first. Because they have this legal duty, the person performing a particular intervention should therefore usually be the person to assess the patient’s capacity to consent to or refuse that particular intervention.
In the following circumstances, however, it can sometimes be reasonable to ask a second person to lead or contribute to the assessment:

  • If the decision is particularly serious, or might have very serious consequences.
  • If it is particularly difficult to assess the patient’s capacity.
  • If there is disagreement about whether or not the patient has mental capacity.
  • If the possible incapacity might be caused by a particular condition and other professionals are better qualified to assess how that particular condition might affect the patient’s capacity.
  • If another person has a better rapport with the patient and so will be better able to perform a more accurate assessment.

Back to top

4.2 When assessing mental capacity

This part of the procedure is summarised in a 1-page flowchart in Appendix B.

Core Principles:

  • A person must be assumed to have capacity unless it is established otherwise.
  • A person is not to be treated as unable to make a decision, unless all practicable steps to help them do so have been taken without success.
  • A person is not to be treated as unable to make a decision merely because they are making an ‘unwise decision’.

The process for assessing a person’s mental capacity to make a particular decision has the following 5 steps:

4.2.1. Presume the patient has mental capacity until it is established that they do not.
4.2.2. Assess ‘impairment of, or disturbance in the function of, mind or brain’.
4.2.3. Assess functional inability.
4.2.4. Assess causation.
4.2.5. Document the capacity assessment.

The Mental Capacity Act requires professionals to ‘have regard to’ the Code of Practice. It should be consulted as appropriate throughout this process.

4.2.1. Presume the patient has mental capacity until it is established that they do not

The Mental Capacity Act requires every person aged 16 or older to be treated as having mental capacity unless it is established that they do not. Nobody should therefore be treated as lacking mental capacity to make a decision apart from in the following conditions:

  • The best evidence that can be reasonably gathered in the circumstances has been obtained,
  • That evidence has informed a mental capacity assessment following steps 4.2.1 to 4.2.4, and
  • That assessment has shown it to be more likely than not that the person lacks mental capacity to make that particular decision.

In addition, the Mental Capacity Act states that none of the following factors are ever enough by themselves to show that a person lacks mental capacity:

  • The person making an unwise decision.
  • The person’s age.
  • The person’s appearance.
  • A condition that the person has that might lead other people to make ‘unjustified assumptions’ about their mental capacity.
  • An ‘aspect of their behaviour’ that might lead other people to make ‘unjustified assumptions’ about their mental capacity

Guidance note - The fact that a decision is unwise is not sufficient in itself to conclude that the person lacks capacity but it may be a relevant consideration to take into account in determining whether a person is unable to make a decision, as set out in section 3(1) of the act. Where a person is assessed as having mental capacity to make an ‘unwise decision’ that potentially puts themselves at risk, professionals still have a duty of care toward them if they meet the definition of an ‘adult at risk’. Whilst this duty will not include making the decision for them, it will include offering them support to reduce and manage the risk as well as considering involving Safeguarding professionals if the person, as a result of their care and support needs, is unable to protect themselves from either the risk of, or the experience of, abuse or neglect (including significant self -neglect)

4.2.2. Assess ‘impairment of, or disturbance in the function of, mind or brain’

A person can only be found to lack mental capacity if they have an ‘impairment of, or disturbance in the function of, mind or brain’ that is causing the lack of capacity. If someone does not have an impairment or functional disturbance of this type, then they cannot be found to lack mental capacity.

The following conditions are examples of impairments or disturbances in the function of mind and brain:

  • conditions associated with some forms of mental illness
  • dementia
  • significant learning disabilities
  • the long-term effects of brain damage
  • physical or medical conditions that cause confusion, drowsiness or loss of consciousness
  • delirium
  • concussion following a head injury, and
  • the symptoms of alcohol or drug use.

If it is more likely than not that the patient has an impairment or disturbance in the function of mind or brain, then the assessor should move to the next stage of the assessment. If it is more likely than not that they do not have such an impairment or disturbance, then they must be found to have mental capacity.

Sometimes the person may not have a documented diagnosis that provides straight forward evidence of impairment or disturbance in the function of mind or brain. In such cases, other reasons for believing they do have an impairment or disturbance in the function of mind or brain should be recorded.

4.2.3. Assess functional inability

Just because a patient has an impairment or disturbance in the function of the mind or brain does not necessarily mean that they lack mental capacity to make decisions. They will only lack mental capacity to make a decision if they are unable to perform at least one of the four following functions:

  1. Understand the information relevant to that particular decision. The relevant information includes the nature of the decision, the reason why it is needed, the foreseeable risks and benefits of the various options and the likely consequences of making or not making the decision. This relevant information only has to be understood at a relatively basic level.
  2. Retain the relevant information long enough to make a decision.
  3. Use and weigh the relevant information. For example, a person with the eating disorder anorexia nervosa may understand information about the consequences of not eating. But their compulsion not to eat might be too strong for them to ignore. If so, they might not be able to ‘use and weigh’ that information.
  4. Communicate their decision by any means including sign language and behaviour.

If it is more likely than not that a patient can perform all four of these functions, then they have mental capacity. If it is more likely than not that they cannot perform one or more of these functions then the assessor should move to the next stage of the assessment.

4.2.4. Assess causation

If it is more likely than not that a patient’s functional inability (4.2.3) is caused by their impairment or disturbance in the function of mind or brain (4.2.2) then they lack mental capacity. If it is more likely than not that their functional inability has another cause, then they have mental capacity.

4.2.5. Document the capacity assessment

Capacity assessments should be documented using the PPM+ ‘Mental Capacity Assessment’ Clinical Document. This form can be found by pressing the ‘Add’ button in the patient’s record, selecting ‘Clinical Document’ and then typing ‘Mental Capacity Assessment’ in the search window or selecting it from the dropdown list.

Assessments for serious or contested decisions should always be documented separately, but it is acceptable to document assessments for on-going acts of care in the same form. For instance, someone’s capacity to consent to or refuse medication might be documented once using the PPM+ form and then reviewed regularly, as opposed to documented every single time that they are due to be given medication.

Back to top

4.3 After assessing capacity - Best Interests decision-making

This part of the procedure is summarised in a 1-page flowchart in Appendix C.

Best Interests Tools are available at Appendices E & F

Core Principles:

  • 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/her 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.

If a patient has mental capacity to make a healthcare decision, then they are free to make that decision themselves, unless they are detained (‘sectioned’) under the Mental Health Act 1983. There is, however, a duty to support patients with capacity to make the best healthcare decisions for them. This includes providing them with the information that they require and politely letting them know if professionals believe that they are acting unwisely.

If the patient lacks mental capacity to make the decision, then the decision must be made in their best interests. This process has the following steps:

4.3.1. Consider whether the patient is likely to regain capacity before the decision is needed.
4.3.2. Identify relevant legal powers.
4.3.3. Consider the patient’s wishes and feelings and enable them to participate.
4.3.4. Consult those with an interest in the patient’s welfare or appoint an advocate.
4.3.5. Decide in the patient’s best interests.
4.3.6. Justify any restrictions of the patient and obtain any necessary authorisation.
4.3.7. Document the best interests decision.

The Mental Capacity Act requires professionals to ‘have regard to’ the Code of Practice. It should be consulted as appropriate throughout this process.

4.3.1. Consider whether the patient is likely to regain capacity before the decision is needed
Before a decision is made for someone who lacks mental capacity, the Mental Capacity Act requires any decision-maker to consider whether or not the person is likely to regain capacity. If it is likely that the patient will regain capacity before the decision must be made, then the decision should usually be delayed until that time.

4.3.2. Identify relevant legal powers
Before making a best interests decision on behalf of a patient who lacks mental capacity, it is necessary to identify who has the legal power to make that decision. In most cases, this will be the healthcare professional responsible for the patient’s care, but that is not so in the following cases:

  • Lasting Power of Attorney (LPA): If the patient has a valid LPA for health and welfare that applies to the decision, then the attorneys that they have named will have the power to make the decision on their behalf. In these circumstances, a copy of the LPA document must be requested and checked in accordance with the LTHT Lasting Power of Attorney Procedure. Attorneys with the power to make healthcare decisions are entitled to access health and social care information relevant to those decisions.
  • Deputy: If the patient has a deputy appointed by the Court of Protection to make decisions on their behalf, then the deputy might have the power to make some healthcare decisions and to access relevant health and social care information. In these circumstances, a copy of the Court Order must be requested and the MCA/MHA team informed as soon as possible (65011 or mca.mha@nhs.net). If a decision must be urgently made out of hours, then the Clinical Site Manager for the area should be contacted.
  • Advance Decision to Refuse Treatment (ADRT): If the patient has validly made an ADRT, then any treatments that they have refused in it cannot be given if the circumstances they have specified apply. The ADRT must be checked in accordance with the LTHT Advance Decision to Refuse Treatment Procedure.
  • Certain psychiatric treatment given to patients detained under the Mental Health Act 1983: In these circumstances, please always liaise with the treating psychiatric team and the MCA/MHA team (65011 or mca.mha@nhs.net).
  • Decisions that must be made by the Court of Protection: a number of different decisions must be made by the Court. In these circumstances, the MCA/MHA team (65011 or mca.mha@nhs.net) and Risk Management (66688) should be contacted as soon as possible. If a decision must be urgently made out of hours, then a Clinical Site Manager should be contacted.
    • If the Court has already made an order relating to the decision, or an application has been made to it requesting an order about the decision.
    • Decisions about sterilisation for contraceptive purposes.
    • Decisions about donation of regenerative tissue such as bone marrow.
    • Decisions about withdrawal of nutrition and hydration from a patient with a prolonged disorder of consciousness, if there is disagreement that cannot be resolved.
    • Decisions when a mentally disordered patient is refusing obstetric care.
    • If there are unresolved doubts or disputes as to the patient’s capacity or best interests at the end of all usual processes.
  • Decisions about care provided after discharge from NHS services: If the patient is being discharged from NHS care, then best interests decisions about the care to be provided after discharge will usually be made by the responsible social care team (although any best interests decision about whether or not to discharge the patient remains for LTHT clinicians to make). If there are concerns about who is responsible for a particular decision on discharge, please contact the MCA/MHA team (65011 or mca.mha@nhs.net).

Unless one of these exceptions applies, the healthcare professional ultimately responsible for the patient’s care will be the person responsible for making best interests decisions.

4.3.3. Consider the patient’s wishes and feelings and enable them to participate

The Mental Capacity Act requires anyone making a best interests decision to do the following as much as is reasonably possible in the circumstances before making the decision:

  • Permit and encourage the person to participate in the decision-making process and any acts done for them.
  • Give the person support to improve their ability to participate in the decision-making process and any acts done for them.
  • Consider the person’s current wishes and feelings that are relevant to the decision.
  • Consider the person’s past wishes and feeling that are relevant to the decision, especially any relevant written statements that they have made.
  • Consider the beliefs and values that would be likely to influence the person’s decision if they had capacity, and any other factors that they would be likely to consider if they could do so.

In order to ensure that these legal duties are performed, the support offered before assessing capacity should be continued after a person has been assessed as lacking mental capacity, see section 4.1.2.
The Person-Centred Best Interests Tool (Appendix E) can be used to document the results of taking these steps.

4.3.4. Consult those with an interest in the patient’s welfare or appoint an advocate

The Mental Capacity Act requires a number of people to be consulted, if it is ‘practicable and appropriate’ to do so, before a best interests decision is made. The views of those consulted must be taken into account; but when making the final decision, the person’s best interests must always be the deciding factor. The following people should be consulted where ‘practicable and appropriate’:

  • Anyone the patient asks to be consulted
  • Anyone caring for the patient or interested in their welfare. This includes family members, friends, but also paid carers.
  • Anyone named as an attorney in a Lasting Power of Attorney that the patient has made, even if the attorney does not have the power to make the decision in question.
  • Anyone appointed as a Deputy for the patient by the Court of Protection, even if the Deputy does not have the power to make the decision in question.

It may be necessary to share some information in order to perform these consultations. If the patient has capacity to make decisions about how their information is shared, then this is their decision to make. If they do not, then the decision must be made in their best interests.
The Person-Centred Best Interests Tool (Appendix E) can be used to document the results of this consultation.
If there is no-one who can be consulted apart from people who provide care and treatment for the patient in a professional capacity or for payment, then it may be necessary to appoint an Independent Mental Capacity Advocate (IMCA). IMCAs are only required, however, for the following serious decisions:

  • The patient is deprived of their liberty or expected to remain in hospital without the mental capacity to consent to arrangements for at least 28 days.
  • If the local authority is making plans about the provision of residential accommodation for the patient and the accommodation is expected to be provided for more than 8 weeks.
  • If a decision about ‘Serious Medical Treatment’ must be made, unless that treatment is so urgent that it is not possible to consult an IMCA before the decision must be made.

Usually, it is the local authority that will make a referral for an IMCA in the first two cases, but it is LTHT that must make referrals for cases of ‘Serious Medical Treatment’. Regulations define ‘Serious Medical Treatment’ as ‘providing, withdrawing or withholding treatment’ when any of the following applies:

  • A single treatment is being proposed, but there is a fine balance between its benefits to the patient and it’s likely burdens and risks for them,
  • There is a choice of treatments, but the decision about which one to use is finely balanced, or
  • What is proposed would be likely to involve serious consequences for the patient.

All IMCA referrals from LTHT are made to our local provider, Advonet. Please make a referral using this form, which is also available on the Trust intranet pages for the MCA/MHA team. The MCA/MHA team can also be contacted for advice and support when making an IMCA referral.

If there is someone it is appropriate and practical to consult, or if there is no serious decision of the types listed above to make, then there is no requirement to make a referral for an IMCA.

4.3.5. Decide in the patient’s best interests

The Mental Capacity Act requires that every decision made for a person who lacks mental capacity, and every act done for them, is done in their best interests.
It does not define ‘best interests’, but it does state that best interests decisions can never be made purely on the basis of the person’s age, appearance, a condition that they have, or an aspect of their behaviour that might lead to ‘unjustified assumptions’. It also forbids being ‘motivated by a desire to bring about’ the patient’s death when making decisions about life-sustaining treatment.

In the context of making best interests decisions about medical treatment, the Supreme Court has given the following guidance:
‘…decision-makers must look at his welfare in the widest sense, not just medical but social and psychological; they must consider the nature of the medical treatment in question, what it involves and its prospects of success; they must consider what the outcome of that treatment for the patient is likely to be; they must try and put themselves in the place of the individual patient and ask what his attitude to the treatment is or would be likely to be…’

This process of deciding the patient’s best interests ‘in the widest sense’ should be informed by the processes of engaging with the patient and consulting others (see 4.3.3. and 4.3.4.).

The courts have repeatedly recommended a ‘balance sheet’ approach to making best interests decisions. This means that the positive and negative aspects of all of the realistic options should be separately considered. The best interests tools in appendices E and F follow this balance sheet approach.

4.3.6. Justify any restrictions of the patient and obtain any necessary authorisation

The Mental Capacity Act requires the three following additional checks on any interventions that restrict or restrain a person.

  • Consider less restrictive options: Once a provisional best interests decision has been made, there is a duty to consider whether it can be accomplished in a way that is less restrictive of the person’s rights and freedoms. In general, decisions should be made in the way that interferes with the patient’s rights and freedoms as little as possible while still achieving their overall best interests.
  • Restraint and restrictive interventions: It is only lawful to physically restrain someone, threaten to physically restrain them, or to restrict their freedom of movement, if doing so is necessary to prevent harm and the amount of restraint given is proportionate to how likely and serious the harm would be. Restraint and restrictive interventions must only be given in accordance with the LTHT Restrictive Intervention and Restraint Policy.
  • Deprivations of liberty: A person is deprived of their liberty if the following three conditions are met: (1) they would not be allowed to self-discharge from hospital, (2) they are under close supervision and control and, (3) this is expected to continue for a significant period of time (on a scale from less than a day if very significant restraints are in place to a week if there are only extremely minor restrictions on the patient). Deprivations of liberty must be authorised using the Deprivation of Liberty Safeguards (or, from April 2022, the Liberty Protection Safeguards) in accordance with the LTHT Deprivation of Liberty Safeguards Standard Operating Procedures.

4.3.7. Document the best interests decision

All best interests decisions made on behalf of a patient must be documented in their notes. The best way of doing so will depend on how complex or contentious the decision is.

  • Relatively simple decisions, if there is no disagreement about the person’s best interests, can be documented in the final box of the PPM+ ‘Mental Capacity Assessment’ Clinical Document. The prompt reads as follows: ‘You have determined the patient lacks capacity for this decision, describe the action that you have taken in their best interest’.
  • If the decision is more complex, the implications are serious for the person, or there has been disagreement about their best interests (whether resolved or not), then one of the best interests tools found in appendices E and F should be used.

Back to top

4.4 Advance Care Planning

The Mental Capacity Act 2005 provides a number of ways in which a person can plan ahead and prepare for a time when they or a family member may lack decision making capacity:

  • By appointing Lasting Powers of Attorney
  • Making Advance Decisions to Refuse Treatment
  • Applying for Court appointed Deputyship
  • Advance statements of wishes, preferences.

Where it is relevant to decisions they are involved in, LTHT staff have a duty under MCA 2005 to do what is practicable and reasonable to find out if any of the above are in place; and to respond to them appropriately.

LTHT has a Standard Operating Procedure and guidance to support staff in relation to their duties and responsibilities relating to Advanced Decisions to Refuse Treatment available on the Leeds Health Pathway.

The Procedure details:

  • How to check for the presence, applicability and validity of an ADRT
  • How to store and share a patient’s ADRT
  • Who to contact if you are not sure about an ADRT
  • Who to contact if a patient wants help to develop an ADRT

LTHT staff must do what is reasonable to find out if an LPA exists, is registered and whether it is relevant to the decision if a patient lacks capacity to decide.

LTHT has an LPA Procedure that supports staff to search for, identify, validate, record and share LPA documentation as well as outlining duties to involved LPAs in decision making.

Advance Care Planning is an umbrella term that describes these and other opportunities for people to plan for future care and support, including medical treatment, while they have the capacity to do so.

Within LTHT, and across Leeds, the Recommended Summary Plan for Emergency Care and Treatment (ReSPECT) has been implemented to document and share care and treatment recommendations and preferences. The LTHT ReSPECT procedure can be accessed here. http://nww.lhp.leedsth.nhs.uk/common/guidelines/detail.aspx?ID=341

Although the MCA 2005 does not impose specific duties on health staff in relation to advance care planning; there is a range of regulatory and national standards that require LTHT staff to maximise opportunities for patients’ awareness of and participation in, advance care planning.

For some staff this will simply mean signposting patients / families to resources or making sure there is information available about Advance Care Planning.

Advance care planning is a resource for everyone, at any stage. Not everyone will want to take up the opportunity, but it may be especially relevant for:

  • People at risk of losing mental capacity – for example, through progressive illness.
  • People whose mental capacity varies at different times – such as through mental illness.
  • People with a new diagnosis of a life limiting illness - such as Motor Neurone disease
  • People approaching the end of life
  • People at risk of life threatening health problems - including people with: advanced progressive life-limiting illness, worsening multi-morbidity and/or frailty, those at risk of catastrophic events such as a ruptured abdominal aortic aneurysm

Those working with patients in any of these groups are encouraged to take an active role in supporting patients regarding advance care planning. The opportunity to participate in advance care planning should be offered systematically and routinely as part of a managed process of planning ahead embedded in care pathways for people at risk of life threatening ill health.

Discussion of emergency inpatient care and treatment, and documentation of recommendations, must be considered for all people admitted acutely to LTHT or otherwise at risk of life-threatening clinical deterioration, as early as possible into their admission. For patients undergoing elective procedures who are at risk of life-threatening complications, CPR and escalation recommendations should be discussed and agreed in advance, during counselling and consent.

We recognise that discussions about advance care can be difficult to start and require an approach that is sensitive to the person’s own situation and perspective. We also know that the offer of advance care planning support will often not be acted on immediately but often leads to a person taking up the opportunity some time later.

We also know that knowledge and uptake of Advance Care Planning is less among more vulnerable groups and underserved communities and so it is particularly important for staff to do what they can to support patients, carers and families form these groups. Contact with hospital services may be the trigger for a discussion and is certainly an opportunity to start the conversation.

LTHT MCA Intranet Site has a range of guides, resources and links for any staff wishing to support patients/families, improve their own knowledge or find out more about Advance Care Planning

Back to top

5. ROLES AND RESPONSIBILITIES

5.1 All clinical staff

  • Work within the Mental Capacity Act, the Code of Practice, and this procedure.
  • Ensure that all documentation meets the standards indicated in this procedure.
  • Work within all other policies and procedures relating to patients who lack mental capacity.
  • Attend mandatory training on the Mental Capacity Act as required.
  • Seek advice from the MCA/MHA team and access guidance on the intranet when appropriate.

5.2 Line managers and senior clinicians

  • Disseminate this procedure and related guidance to their staff in the most appropriate format.
  • Support staff to implement this procedure.
  • Identify the training needs of their staff in relation to Mental Capacity Act issues.
  • Identify areas where more tailored guidance is required and contact the MCA/MHA team in order to request it.
  • Promote joint working practices between professional groups and across organisational boundaries for patients who lack mental capacity.
  • Ensure appropriate reporting and learning from all incidents where the standards of this procedure have not been met.

5.3 Head of Mental Health Legislation

  • Delegated operational lead for the Mental Capacity Act.
  • Lead for this procedure and related policies and procedures.
  • Support and lead the MCA/MHA team in fulfilling its duties.

5.4 MCA/MHA team

  • Provide advice on the application of the Mental Capacity Act and this procedure to all staff.
  • Develop and deliver training on the MCA and this procedure for all relevant staff groups.
  • Coordinate the application of this procedure.
  • Liaise with external organisations and stakeholders.
  • Liaise with Independent Mental Capacity Advocacy providers.
  • Represent LTHT at relevant strategic networks and meetings
  • Liaise with clinical staff regarding the awareness and implementation of this procedure.
  • Provide quarterly monitoring and assurance reporting on the operation of the procedure.
  • Support Clinical Service Units to develop their auditing and governance arrangements relating to their duties under the Mental Capacity Act.

5.5 Chief Nurse

  • Executive lead for this procedure.
  • Ensure that clinical services are suitable for providing care treatment within the legal duties created by the Mental Capacity Act.
  • Ensure that clinical staff understand and comply with this procedure.

5.6 Chief Medical Officer

  • Designated Board Director with responsibility for ensuring compliance with the Mental Capacity Act.

Back to top

6. LINKS TO OTHER DOCUMENTS

Back to top

Appendix A: Before assessing mental capacity (4.1)

Back to top

Appendix B: When assessing mental capacity (4.2)

Back to top

Appendix C: After assessing mental capacity - Best Interests decision making (4.3)

Provenance

Record: 3742
Objective:
Clinical condition:
Target patient group:
Target professional group(s): Secondary Care Doctors
Secondary Care Nurses
Adapted from:

Evidence base

  • Diamond, B (2008) Legal Aspects of Mental Capacity, Blackwell Publishing, Oxford.
  • Jones, R (2008) Mental Capacity Act Manual, 7th edition, Sweet and Maxwell, London.
  • Department of Constitutional Affairs (2007) Making Decisions: A guide for people who work in health and social care.
  • Mental Capacity Act 2005 and Mental Capacity Act Code of Practice (2007) Department of Constitutional Affairs.
  • The Mental Capacity Act 2005 (Independent Mental Capacity Advocates) (General) Regulations 2006
  • Law Society (2010) Assessment of Mental Capacity.

Approved By

Executive Team

Document history

LHP version 2.0

Related information

Not supplied

Equity and Diversity

The Leeds Teaching Hospitals NHS Trust is committed to ensuring that the way that we provide services and the way we recruit and treat staff reflects individual needs, promotes equality and does not discriminate unfairly against any particular individual or group.