An Introduction to the Mental Capacity Act & Palliative Care

PRESENTATION 3 THIRD PARTY INVOLVEMENT IN DECISION-MAKING SLIDE 1 This is the third of four presentations introducing the Mental Capacity Act and Palliative Care. This presentation looks at third-party involvement in decision-making.

SLIDE 2: RESPONSIBILITY FOR DECISION-MAKING Who is responsible for decision-making under the Mental Capacity Act? It might be a person who is providing care or treatment to the patient. It might be a proxy appointed to make decisions on the patient’s behalf. It might even be the patient himself if he has made a valid and applicable decision to refuse particular treatment. The MCA also introduces a new form of advocacy.

SLIDE 3: WHO IS RESPONSIBLE FOR DECISIONS THAT ARE MADE? It is important to understand where responsibility lies under the Mental Capacity Act. Is it the person who determines capacity, or who decides what course of action is in a patient’s best interests, or is it the person who implements the decision? This is a particularly significant question in palliative and end of life care where decisions about care and treatment are often made in the context of a multi-professional team. Under the Act ultimate responsibility for decision-making rests with the person who has to implement the decision. So, for example, in a complex case, where a psychologist might have been consulted to advise on a patient’s capacity, and a doctor considers that particular medication is required, and the nurse actually administers the medication through a syringe, the nurse is the person with whom ultimate responsibility arises. To understand why this is the case we need to look briefly at the law of consent. We need to consent to medical treatment, or to people dealing with our property. If we do not, the person who cuts us open with a scalpel would be guilty of assault (or worse!) and the person who uses our money would be guilty of theft. The MCA puts carers in the position that they would have been if the person whom they are caring for had consented to the activity in question. To be specific, the MCA states that if a carer reasonably believed that the person did not have capacity to make a particular decision, and the carer reasonably believed that the course of action was in the person’s best interests, then the carer is absolved from civil or criminal liability as if the person had consented. How does this work in a multi-professional team? Where there is consensus in the team about what is to happen, all should be well. The team will take collective responsibility for assessment of capacity and best interests decisions. If however there is no consensus, the MCA empowers the person who implements the decision. That person must be satisfied about both capacity and best interests. The MCA provides a framework to enable us to identify where responsibility lies.
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To take another example, if a palliative medicine team decided that a patient needed a PEG tube, but the gastroenterologist who needed to insert the tube advised that this was not appropriate, the gastroenterologists view would be decisive. Another means of feeding would have to be found.

SLIDE 4: THIRD PARTY INVOLVEMENT IN DECISION-MAKING The Act introduces some new ways in which third parties can be involved in decision-making, either as proxy decision-makers, or as advocates. These are: 1. Lasting Powers of Attorney – LPA for short 2. Court Appointed Deputies – CAD for short 3. Independent Mental Capacity Advocates – IMCA for short. The next slides will look at each of these in a little more detail.

SLIDE 5: LASTING POWERS OF ATTORNEY If you give somebody a Power of Attorney, that gives that person the authority to make particular decisions on your behalf if you do not have the capacity to make them for yourself. The new Lasting Powers of Attorney will replace the existing Enduring Powers of Attorney. Enduring Powers of Attorney enabled you to appoint somebody to make decisions about your property. The main difference is that the new Lasting Powers of Attorney will enable you to appoint other people to make decisions about your personal welfare as well as your property and affairs. Personal welfare includes your health and social care. Enduring Powers of Attorney made before 1 October 2007, when the Act comes into force, will continue to be valid. However it will no longer be possible to make an Enduring Power of Attorney after that date; it will only be possible to make a Lasting Power of Attorney – or LPA for short. LPAs will be formal documents. It will not be possible to make them verbally, or to scribble them down on a spare piece of paper. They will have to be in a prescribed form – the forms will be available on the Ministry of Justice’s website. They will also have to be registered with the new Office of the Public Guardian.

SLIDE 6: LASTING POWERS OF ATTORNEY 2 The person to whom you give authority to make decisions for you under an LPA is sometimes called the Donee of the LPA, and you as the giver are sometimes called the Donor. It will be possible to specify what decisions you are giving the Donee the power to make. It will also be possible to give more than one person the power to make decisions, and to give different people the power to make different decisions on your behalf. So, for example, you might appoint all of your children to make decisions about your property, and only one child to make decisions about your welfare. It is up to you. The Donee of the LPA cannot make any decisions about life-sustaining treatment unless you have specifically stated that you want him to have that power. People making decisions as Donees of an LPA must make the decision in the best interests of the Donor. That means that they must go through precisely the same process as anybody else making a best interests decision. If somebody believes that the Donee is not making decisions in the Donor’s best interests, they can be challenged. Ultimately an application can be made to the new Court of Protection.
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If you are caring for somebody who has not got the capacity to make a particular decision for himself, and somebody else claims that they have the right to make decisions under an LPA, you should always ask to see the LPA to make sure that it does cover the decision in question, and make sure that it has been registered.

SLIDE 7: COURT APPOINTED DEPUTIES Court Appointed Deputies are completely new under the Act. We do not yet know how exactly how these will work in practice. The principles that will help the court decide whether to appoint a Deputy to make decisions on behalf of a person include the following: 1. The court can only appoint a Deputy if it considers that it is in the best interests of the person who lacks capacity to make a decision for himself. 2. Where possible the court should make the decision itself, rather than appoint a Deputy to do it instead. 3. If a Deputy needs to be appointed, his appointment should be as limited in scope and for as short a time as possible 4. The court does not have the power to appoint a Deputy to make a decision about lifesustaining treatment. If a decision about that sort of treatment has come before the court, the court must make the decision itself.

SLIDE 8: COURT APPOINTED DEPUTIES 2: EXAMPLES Examples in which the court might appoint a Deputy include the following: 1. Where it is necessary to sell a person’s house or some of his property 2. Where the person has financial assets that need to be managed 3. Where there is a history of unresolved family disputes about the person’s care and a Deputy is required to make necessary and urgent decisions 4. Where a series of linked welfare decisions need to be made over a period of time and it is not appropriate to require them all to be made by the court. Nobody can be appointed a Deputy without their consent. The court can appoint more than one person to be a Deputy, and can specify which decisions each deputy has the power to make. More than one Deputy might be required to make the same decision. Relatives, Friends or professionals might be appointed as Deputies, depending on the circumstances. If a care professional is appointed, the court will need to make sure that there is no conflict of interest. For example care home managers should not generally be appointed as Deputy to make decisions about a resident.

SLIDE 9: INDEPENDENT MENTAL CAPACITY ADVOCATES Independent Mental Capacity Advocates – or IMCAs for short – are a completely new type of statutory advocacy service. The most important thing about IMCAs is that they are advocates, not decision-makers. Their role is never to make a decision on behalf of a person. Instead they are there to represent the person about whom the decision is being made and to make sure that the decision is made in his best interests. If necessary the IMCA can call for a second opinion or challenge the decision before the court.

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Again, the rules about IMCAs are best understood in the context of the relationship between the state and the individual. The government wanted to protect very vulnerable people when important decisions were being made about them. The Act states that IMCAs are only required in specific circumstances. However, where those circumstances exist, IMCAs must be consulted. There is no discretion about whether to consult one or not. IMCAs are intended to give added protection to what the government has called “unbefriended” people without capacity to make a particular decision. By this is meant people in relation to whom there is nobody, other than a professional carer, whom it would be appropriate to consult when assessing their best interests. As the Act makes clear, IMCAs would not be required in circumstances where the person has nominated somebody to represent his interests, or appointed somebody under an LPA, or the court has appointed a deputy. They are required only if the person is without any family or friends whom it would be appropriate to consult about his best interests.

SLIDE 10: INDEPENDENT MENTAL CAPACITY ADVOCATES 2 IMCAs must be instructed when an NHS or local authority body is proposing to make a particular type of decision in relation to an “unbefriended” person. The decisions which require the involvement of an IMCA are: • Cases in which an NHS body is proposing to provide withhold or withdraw “serious medical treatment”. There are regulations which prescribe what “serious medical treatment” means and further details about this and all aspects of IMCAs are available in the Code of Practice at Chapter 10. Cases in which an NHS body is making or changing arrangements for the person’s accommodation either in hospital (if for more than 28 days) or a care home (if for more than 8 weeks) Cases in which a local authority is making or changing arrangements for the person’s accommodation in a care home if for more than 8 weeks.

These exclude cases in which medical treatment or accommodation is provided to the person under the Mental Health Acts. Independent voluntary hospices are not NHS bodies and therefore will not have to consult an IMCA unless they are involved in a decision which also needs to be made jointly with an NHS body or Local Authority – for example whether to transfer an “unbefriended” MND patient to a local authority care home.

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