People Receiving Care Who Lack Mental Capacity to Take Decisions: Implementation of the Mental Capacity Act in Domiciliary Care

Background

The Mental Capacity Act, or MCA as it is often known, was introduced into England and Wales in April 2007 to provide a statutory framework to protect those who lack the mental capacity to make their own decisions, such as those with severe dementia or any other significant brain dysfunction, and those who are dying and no longer capable of making decisions for themselves.

The Act applies to people aged 16 years and over and sets out:

who can take decisions for people who lack capacity
in which situations this can be done
how they should go about this.

Certain groups of people are legally required to have regard to the Act and its associated Code of Practice when making decisions on behalf of people who lack mental capacity. This includes doctors, nurses, health and social care managers and staff.

Compliance with Registration Standards and Regulations

{{org_field_name}} notes that the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 contain the following with respect to mental capacity.

Regulation 9: Person-centred Care requires service providers to ensure that the care and treatment which they provide, must be appropriate, must meet the needs of the people receiving their care, and must reflect their preferences and wishes. The regulation specifically requires service providers to act in accordance with the Mental Capacity Act 2005 with regard to people who may lack capacity.
Regulation 11: Need for Consent requires that care and treatment is only provided with the consent of the relevant person.

Policy Statement

{{org_field_name}} complies with the principles of the Mental Capacity Act 2005, which applies to England and Wales, by first treating everyone who uses its service or is applying to become a user on the basis that they are able to take their own decisions and give valid consent to their care and treatment.

Consistent with the legislation, {{org_field_name}} is prepared to take a decision for a person in their best interests if there is evidence that they cannot take the decision (at the time it needs to be made) because of mental incapacity.

It is recognised that decisions under the Act include those to be made about matters of personal health, such as consent to medical intervention, care, general welfare and finance.

Definition of Capacity

{{org_field_name}} understands that the “capacity” referred to in the MCA refers to the mental capacity to make a decision. Where a person is described as “lacking capacity” this means that the person is judged as being unable to make a decision for themselves because of an impairment of (or a disturbance in the functioning of) the mind or brain, whether temporary or permanent.

{{org_field_name}} also understands that “capacity” can change and may relate to different decisions differently. Therefore, a lack of capacity should never be assumed or presumed.

Principles and Aims

The care provider supports the principles of the Mental Capacity Act as follows.

Individuals must be assumed to have capacity unless it is established that they lack capacity.
Individuals are not to be treated as unable to take a decision unless all practicable steps have been taken without success to help them to take the decision.
Individuals must not be treated as unable to take a decision just because they might or have been known to make an unwise decision.
When people take a decision on behalf of someone else who lacks capacity, they must act in that person’s best interests.
If anyone takes a decision on behalf of someone lacking capacity at the time, they must act to minimise any restriction of that person’s rights and freedom of expression and movement.

Implementation

{{org_field_name}} implements these principles in the following ways.

{{org_field_name}} treats all current and prospective people receiving its care on the basis that they take their own decisions. This is confirmed in the individual plan of care.
Where the service has information that suggests the person might be unable to take some decisions at some of the time, it will carry out an assessment of that person’s mental capacity. The assessment follows the two-step assessment process recommended in the MCA’s Code of Practice.
{{org_field_name}} knows about and acts on any advance directives or “living wills” that people receiving its care have chosen to make in contingency situations where they might lose the ability to take a decision. Where appropriate, {{org_field_name}} also encourages people receiving its care to make end-of-life plans so that their wishes are known in the event of their dying.
{{org_field_name}} ensures that it responds correctly where people are subject to guardianship proceedings or who have agreed that others should decide admission on their behalf such as an LPA for personal welfare.
The evidence and methods used to make the assessment and the outcomes are recorded on the person’s needs assessment and plan of care, respectively. The information indicates:
a. which decisions the person can take at all/most times
b. those that the person has difficulty in taking
c. those that the person is unable to take.
In respect of each area of decision-taking where there are difficulties or an inability to take decisions, the individual’s plan of care records the actions to be taken for the person that are deemed in their best interests.
{{org_field_name}} ensures that the individual is always as fully involved as possible. It will only take “best interest” decisions with full information available and the agreement of those concerned in the person’s care and future. All decisions taken for that person are fully recorded and made subject to regular review.
{{org_field_name}} has a separate policy on restraint. People receiving care who lack mental capacity as any others, are only subject to any form of restraint when not doing so, would result in injury or harm to them or to other people. All incidents where restraint has been used following the home’s procedures for reporting and recording.
{{org_field_name}} has access to independent advocates (IMCAs) and other professionals who can assist in the assessment and who understand the implications for that person’s care.
{{org_field_name}} is aware of the importance of protecting the rights and freedom of people receiving its care, and will always work to make sure that no one who might lack capacity is unlawfully deprived of their liberty. (See separate policy on Human Rights and Deprivation of Liberty.) {{org_field_name}} will seek to safeguard the person’s interests by applying for authorisation under the deprivation of liberty safeguards’ protocols.
{{org_field_name}} will only take a decision for person receiving its care after it has exhausted every means of enabling the person to take it of their own accord. It will also show its actions in taking the decision are reasonable and are in the person’s best interests.
It will always work closely with anyone with power of attorney for an individual to determine the best interests of the cared for person, and with any representatives appointed by the Court of Protection.

Staff Involvement

{{org_field_name}} expects its care staff to implement the agreements and decisions that are identified on an individual’s care or personal plan.

{{org_field_name}} also expects its staff to involve people receiving its care in all day-to-day decisions that need to be taken by seeking their consent and checking that the actions to be taken are consistent with their care or personal plan if the individual lacks capacity at the time.

Where the person’s needs to take a decision that lies outside of their ability at the time, staff must do everything to help them decide for themselves.

{{org_field_name}} expects its staff to avoid taking decisions on behalf of a person receiving care unless they can show that it is necessary and the person at the time is unable to take that decision themselves. Any such incident must be fully recorded.

{{org_field_name}} expects its staff to take decisions for people lacking capacity only because they have reasonable beliefs that they are necessary and in the person’s best interests. When in doubt that they can proceed in this way they must seek advice from their line manager.

Training

{{org_field_name}} provides staff training on all aspects of mental capacity to improve their knowledge and develop skills in working with people receiving care over their decision-making abilities.

Any staff it employs who are new to care work will receive training in line with the Care Certificate Standards framework, particularly Standard 9: Awareness of Mental Health, Dementia and Learning Disability.

Responsible Person: {{org_field_registered_manager_first_name}} {{org_field_registered_manager_last_name}}

Reviewed on: {{last_update_date}}

Next Review Date: {{next_review_date}}

D353. People Receiving Care Who Lack Mental Capacity to Take Decisions: Implementation of the Mental Capacity Act in Domiciliary Care