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5.1.1 Mental Capacity Act 2005 Policy and Practice Guidelines

RELATED CHAPTER

Deprivation of Liberty Safeguards

AMENDMENT

In October 2016, this chapter was slightly updated in regard to contact details.


Contents

1. Background and Purpose
  1.1 Related Policy/legislation
2. Key Features and Principles of the Mental Capacity Act 2005
3. Definition of Mental Capacity
  3.1 Excluded Decisions
4. The Statutory Principles
5. The Use of Restraint
  5.1 The Deprivation of Liberty Safeguards "DoLS"
6. Mental Capacity Act 2005 - Process Overview
7. What Triggers a Mental Capacity Assessment?
8. Who should assess capacity and be the decision-maker
  8.1 Who else should be Involved?
9. How to Assess Capacity: The Two Stage Mental Capacity Assessment Test
10. Best Interest Decision Making and Care Planning
11. Recording Mental Capacity Assessments and Best Interest Decisions
  11.1 CareFirst Recording
12. Planning Ahead for a time when Capacity is Impaired
  12.1 Lasting Powers of Attorney
  12.2 Key Points
  12.3 Verification of Validity of LPA
  12.4 Certificate Providers for the Creation of a LPA
  12.5 Advance Decisions to Refuse Medical Treatment
  12.6 Advance Decisions to Refuse Life-sustaining Treatment (CoP 9.24-9.28)
  12.7 The Role of Local Authority Staff and Advance Decisions
  12.8 Statements of Wishes, feelings, beliefs and Values
13. Court of Protection and Court Appointed Deputies
14. Independent Mental Capacity Advocacy (IMCA)
15. Mental Capacity and Safeguarding Procedures
  15.1 The Safeguarding Adults Enquiry
  15.2 People with Capacity
  15.3 People without Capacity
  15.4 Criminal Offences of Ill Treatment and Neglect
16. The Relationship between the Mental Capacity Act and Mental Health Acts 1983/2007 (Chap 13 CoP)
17. Resolving Disagreements and Disputes
18. Confidentiality and Access to Information
19. Training and Awareness
20. References, Websites and Resources
  Appendix 1: Recording Guidance Table


1. Background and Purpose

The Mental Capacity Act (MCA) 2005 was fully implemented in October 2007 and covers all people aged 16 * and over living in England and Wales. Prior to this, there was no single legal framework to guide decision making or work carried out in relation to people judged to 'lack mental capacity', and practice was largely underpinned by common law and ‘best practice’.

This policy is applicable to all Brighton and Hove City Council employees working in community, residential, day services and multidisciplinary settings. It contains key features of the MCA and includes guidance to promote compliance with the legislation when working with people who may, or do lack Capacity to make a particular decision at a particular time. It is to be viewed as a supplement to, not a replacement for, the Statutory Code of Practice (CoP) or other national guidance as it evolves.

  • Staff have a statutory duty to comply with the MCA and to show "due regard" to the Code of Practice;
  • Compliance supports the right of vulnerable adults to be involved to the fullest possible level in decisions about their care or treatment;
  • Compliance will promote transparency in assessment and decision making processes, thus protecting vulnerable people from unsound or discriminatory decision making processes;
  • Compliance will afford protection to staff from legal liability when carrying out acts in connection with care or treatment or should harm result (Section 5 MCA). However, it does not provide a defence in a case of negligence whilst undertaking such acts (CoP Chapter 6).

* Chapter 12 CoP describes how the Act applies to 16-17 year olds, the few parts that may apply to younger children, and overlapping legislation.

1.1 Related Policy/legislation

Staff must apply the principles of the MCA to whichever legislative or procedural framework they are working within, for example:

Disability Discrimination Act 1995  
The Care Act 2014 Person Centred Planning
Mental Health Acts 1983 &2007 Care Programme Approach
Data Protection Act 1998 Medication Policy
Human Rights Act 1998 NHS Continuing Health Care
Care Standards Act 2000 Restrictive practices policy
Sussex Safeguarding Adults Policy and Procedures


2. Key Features and Principles of the Mental Capacity Act 2005

  • The Mental Capacity Act seeks to clarify terms such as 'capacity' and 'best interests decision making', and describes who is responsible for assessing capacity ('decision maker');
  • Mental Capacity is time and decision specific;
  • The legislation includes statutory principles and all paid and professional staff MUST have regard to these and the supporting guidance contained in the Code of Practice when assessing capacity and making decisions for/ with people who may/ do lack capacity. All teams/ departments should have access, for reference, to a hard copy the Code of Practice. Copies can also be downloaded from the Justice website, Mental Capacity Act 2005 Code of Practice;
  • The Act allows people with capacity to do so, to plan ahead for a time when they may lack the capacity to make decisions, through making Advance Decisions to Refuse Treatment, statements of wishes and preferences and the creation of Lasting Powers of Attorneys (LPA for personal welfare or property and affairs). Enduring Powers of Attorneys (EPA for property and affairs) made prior to implementation of the Act continue to be valid;
  • The Court of Protection has the power to make a final decision where there is an unresolved disagreement about a determination of capacity, or best Interests decision and can also make a one-off declaration/ decisions or appoint a Deputy to act as proxy on-going decision maker after a person has lost capacity in relation to specific decision(s). The court can also decide on the validity of an LPA or EPA and remove deputies or attorneys who fail to carry out their duties;
  • The Public Guardian, supported by the Office of the Public Guardian (OPG), provides further protection through the supervision and appointment of deputies, and can instruct a Court of Protection visitor to investigate serious concerns about the conduct of a deputy;
  • The Act introduces two new criminal offences (Section 44) of "ill treatment" and "wilful neglect" of a person who lacks capacity by anyone who has a caring role including family, health and care staff, attorneys and deputies;
  • The Act introduces the Independent Mental Capacity Advocate "IMCA" to provide an independent safeguard for people assessed to lack capacity to make decisions in relation to certain accommodation changes, and serious medical treatments when the person has no one else (apart from paid staff) to consult and represent their views.

An assessment must be made as to whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty. If they do, then the deprivation has to be authorised (either by the Deprivation of Liberty Safeguards (hospitals/care homes) r by the Court of Protection (domestic settings such as the person’s own home, supported living arrangements, shared lives) and subject to regular independent checks. The Supreme Court ruling (P v Cheshire West and Chester Council and P&Q v Surrey County Council, March 2014) clarified the so called ‘acid test’ to determine how ‘deprivation of liberty’ is defined. As a result many more people living in both residential, nursing, hospital, and domestic settings will require the protection afforded through the Safeguards or Court of Protection.

All staff must be aware of the circumstances which lead to a statutory duty to instruct an IMCA and the additional discretionary power to instruct an IMCA in certain safeguarding cases and care reviews.


3. Definition of Mental Capacity

Mental Capacity is defined as ‘time and decision specific,’ - the ability to make a particular decision at the time it needs to be made. The Act covers decisions about day to day activities, personal care, practical tasks and routine healthcare treatments (known as Section 5 acts) as well as longer term, significant or complex decisions that may be life changing, such as changes in accommodation, serious medical treatments, management of property and finances (Chap 6 CoP). Different levels of capacity will be needed for different types of decisions, depending on their complexity.

The Act says that a person is, by law, unable to make the decision if, as a result of ‘an impairment of, or a disturbance in the functioning of the mind or brain’, they are unable, on the balance of probabilities, to do any one or more of the following:

  1. Understand information relevant to the decision to be made;
  2. Retain that information in their mind for long enough to be able to;
  3. Use or weigh that information as part of the decision making process;
  4. Communicate their decision (by any means).

The Act is in line with, and does not replace, existing tests of capacity which cover:

  • Capacity to make a will, or gift;
  • Capacity to enter into a contract, including marriage;
  • Capacity to litigate. (4.31-4.33 CoP).

3.1 Excluded Decisions

There are certain decisions concerning very personal matters or family relationships which can never be made on behalf of another person by family, carers, professionals, attorneys/ deputies, or the Court of Protection; This is because they are either so personal to the individual concerned, or they are governed by other legislation.

  • Giving consent to marriage or civil partnership;
  • Giving consent to sexual relations;
  • Giving consent to divorce or dissolution of a civil partnership;
  • Giving consent to a child being placed for adoption or making an adoption order;
  • Discharging Parental Responsibility (other than matters relating to property);
  • Giving consent under the Human Fertilisation and Embryology Act 1990;
  • Voting;
  • Treatment for mental disorder where the person is detained under the Mental Health Act.

‘Consent’ may be defined as the voluntary agreement from the individual to the proposed action, based on sufficient knowledge of the purpose, nature and consequences (risks/benefits) and any alternatives.


4. The Statutory Principles

The Mental Capacity Act is supported by five statutory principles with a focus on supporting people, wherever possible, to make decisions for themselves and to be as involved as possible in decision making when incapacity is determined. (Chap 2 CoP). Culture, religion and life experience must be considered at all times.

  1. A person must be assumed to have capacity unless it is established that they lack capacity (CoP 2.3)

    This 'presumption of capacity' replaces any previous assumptions of incapacity based solely on age, appearance, behaviour, diagnosis or disability. However, staff should routinely consider capacity issues as compliance or clear assertions can mask a lack of capacity. Any determination of incapacity must be evidenced 'on the balance of probabilities' and subsequently reviewed as circumstances and/or the person's capacity to make a particular decision may change;
  2. 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 (CoP 2.6)

    Staff and managers will need to consider giving priority to additional time or particular resources or strategies that may be needed in order to explain or present information in a way that is easiest for the person to understand. Different factors will influence timescales and ‘practicability’, e.g. if the situation is life threatening, or environment -  e.g. it may not be appropriate to expect significant long term decision making  to be made at the same time as decisions which would appropriately facilitate discharge from an acute hospital setting;

    The case of CC v KK and STCC (2012) provided a detailed analysis of the approach to be taken when assessing capacity. It highlights that taking all ‘practicable steps’ must include the provision of relevant details about the different decision options available and the advantages/disadvantages of each, before a person can make a decision. For example the person needs to be given sufficient information (e.g. details of a domiciliary package that might be available, as well as details about a residential/nursing placement) in order to be able to show if they can balance the physical security of a 24 hour supported environment, against the psychological security or comfort of being in their own home even if support is not available over a 24 hour period;

    Chap 3 CoP gives guidance around supported communication, appropriate levels and types of information giving, and cultural, environmental and other factors particular to the individual which might affect capacity, or impact on how capacity is perceived;

    To have ‘reasonable belief’ that a person lacks capacity to make a particular decision, ‘reasonable steps’ must have been taken to come to that conclusion;
  3. A person is not to be treated as unable to make a decision merely because they make an unwise decision (CoP 2.10)

    Everyone has their own priorities and preferences, which along with culture, values and life experience will influence personal decisions and choices. Some decisions may seem eccentric or unwise to others, but capacity is determined by understanding, not wisdom or conformity. For many people, taking risks may be an important part of living a full life, or how they choose to manage a particular need. Appropriate advice, risk assessment/management processes should be applied. However, if someone repeatedly makes decisions that carry significant risk, or appear out of character, this may trigger a more detailed consideration of their capacity;
  4. 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 their best interests (CoP 2.12)

    The Act does not define 'best interests' but includes a statutory 'best interests check list' (5.13 CoP) which must be considered. This includes involving the person, consulting with all relevant others, taking into account past and present wishes, and any advance decision made. (Chap 5 CoP);
  5. 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 (CoP 2.14)

    The best interest decision includes considering what is the least restrictive available option in the circumstances and how the intended outcome can be achieved with least interference with the person's basic rights and freedoms. For example, in the particular circumstances of a person with an ongoing history of alcohol dependency, it may, following appropriate multi-disciplinary assessment and consultation, be decided that a least restrictive option and best interest decision is an agreed and medically supported reduction and maintenance programme rather than imposing complete abstinence.


5. The Use of Restraint

Section 5 MCA permits, under certain conditions, the use of restraint in order to provide care or treatment which is judged to be in the best interests of a person assessed not to have capacity in relation to the treatment/care decision.

Restraint is defined as the use, or threat, of force where a person who lacks capacity resists, or any restriction of liberty or movement whether or not the person resists.

Restraint is only permitted if the person using it reasonably believes it necessary to prevent harm to the person who lacks capacity, and if the restraint used is a proportionate response to the likelihood and seriousness of the harm (CoP 6.40-48)

Section 6 of the Act sets out limitations on acts of care or treatment which can be carried out under S5 (CoP 6.49-6.53). Acts which include disproportionate restraint, or amount to a deprivation of liberty within the meaning of Article 5 (1) of the European Convention on Human Rights, are not protected from liability.

The Care Act 2014 references compliance with the principles underpinning and enshrined in the Mental Capacity Act throughout. In relation to minimising and authorising deprivation of Liberty for people who lack capacity, there is a specific requirement for planned restrictions and restraints must be documented and reported to a Social Worker to agree. Care and Support Statutory Guidance issued under the care Act 2014 states (10.67).

“In line with the least restrictive principle in the MCA, local Authorities and others drawing up plans, must minimise restrictions and restraints on the person as much as possible. The MCA provides legal protection for acts of restraint only if the act is necessary to prevent harm, a proportionate response to the likelihood of the person suffering harm, and the seriousness of that harm, and in the person’s best interests. Planned restrictions and restraints to be documented and reported to a Social Worker to agree. Disagreements should be resolved through formal best interest meetings, involving a wide range of people, including family members and/or an advocate to support and represent the person.”

5.1 The Deprivation of Liberty Safeguards "DoLS"

In April 2009, an amendment to the MCA introduced a legal framework known as the Deprivation of Liberty Safeguards (DoLS). This legislation protects and strengthens the rights of people who lack capacity to decide about their care and treatment but who are not covered by the Mental Health Act and who are, or may be deprived of their liberty to protect them from harm.

Where a person’s situation and needs do not fall within the criteria for the Safeguards and if they do not meet the criteria for detention under the Mental Health Act or criminal justice legislation, any actions or treatment which amount to a deprivation of liberty will not be lawful unless authorisation is granted through the Court of Protection (CoP 6.50-51).

For further information, see the Deprivation of Liberty Safeguards Code of Practice published in 2008. This does not reference the March 2014 Supreme Court ruling or some administrative changes which have been introduced since 2008, but the fundamental principles stand.


6. Mental Capacity Act 2005 - Process Overview

Click here to view overview process flowchart


7. What Triggers a Mental Capacity Assessment?

The need for a decision specific mental capacity assessment may arise during a person’s contact with any service, at any point during the Assessment, Care Management process or Care Programme Approach for example:

  • The initial contact or subsequent needs assessment;
  • A scheduled review or review arranged following a change in health or circumstances, or concerns raised;
  • Care Planning;
  • During safeguarding procedures. 

Mental Capacity cannot be judged solely on diagnosis, behaviour or outcome. The person may appear to have difficulty understanding information or the need for a decision, or a combination of diagnosis and behaviour, unusual or risk laden decisions may lead to the initial questioning of capacity.

Whilst the presumption of capacity remains paramount, Capacity and related issues should be routinely considered including establishing:

Remember: A mental Capacity assessment will be informed by aspects of, but differs from, other ‘Needs’ assessments as it focuses specifically on the person’s ability to make a particular decision(s) that arise from assessment, care planning, care management or safeguarding procedures.


8. Who Should Assess Capacity and be the Decision-maker? (CoP 4.38-4.43)

All staff who have direct contact with service users may, at some point, need to assess a person’s mental capacity to make a particular decision. The most appropriate person to assess capacity will depend on the decision to be made and the circumstances. Whilst other people might be involved in the assessment process, the person proposing and with authority to carry out the specific action or course of treatment is the 'decision maker' and has ultimate responsibility for determining, or being satisfied with the outcome of the assessment and determination of capacity or incapacity and any subsequent best interest decision.

  • Residential and home carers, and informal family carers are decision makers when supporting people with daily living/personal care;
  • Doctors or nurses are decision makers when proposing or carrying out medical or other treatments, Occupational therapists, physiotherapists, speech and language therapists are decision makers when the decision is in relation to aids, equipment, therapies or special diets;
  • Social workers/care managers are decision makers when the decision relates to accommodation or care options;
  • Where there are multidisciplinary teams (e.g. short term services, Rapid Response Service, Immediate Discharge Team, Learning Disability Team, Community Neuro Rehabilitation Team and Community Mental Health Services) the decision maker may be determined by team protocols but must be appropriate to the circumstances, for example, by having the subject knowledge relevant to the decision, and the authority to carry out the decision. Best interest decisions may be reached through a multi-disciplinary format, but the designated ‘decision maker’ must be satisfied with and ‘own’ the decision;
  • Legal practitioners are decision makers in the writing of a will;
  • Where a now incapacitated person previously made a LPA or has a Court appointed deputy, or a registered EPA, the attorney or deputy will be the decision maker within the scope of authority given to them.

8.1 Who Else Should be Involved?

The Act refers to 'appropriate consultation' to inform assessment and decision making at different levels. 'Expertise' does not rely on 'qualification', 'specialism', or job title alone but will also include knowledge and experience of the individual, their knowledge of the impairment and features which will impact on the person's understanding/communication, and the issue in question. Vulnerable service users should not be subjected to the unnecessary involvement of others, so when considering who else needs to be involved, the decision maker needs to consider what value the other person(s) can bring that cannot otherwise be provided. The nature of the decision and the person's particular circumstances will determine who should undertake the lead role of decision maker. Which other health/social care professionals and family/friends should be involved will be determined by other factors which might include, for example:

  • Complexity of the person's needs and their particular circumstances and cultural influences;
  • Who knows the person best;
  • The level of risk, or significance (for example, if life changing) of the decision, where there are a number of different but interlocking decisions which may involve different decision makers, or  complexity resulting from different decision options;
  • Where the assessment outcome is finely balanced between capacity and incapacity; where the impact of some impairments e.g. executive dysfunction may not always be immediately or obviously identifiable;
  • Where there is disagreement between the person/family/professionals.

For example:

  • A doctor proposing a particular treatment for a person with severe learning difficulties may need the involvement of a psychologist who has specialist knowledge of their condition/needs to assist with providing information and assessment of the person's understanding. A carer or family member may also be needed to support communication or help the person feel at ease. The doctor may have a view about whether the person has been able to sufficiently understand and weigh up the information, but someone who is most familiar with the person or their particular needs may be better equipped to interpret behaviour or language which to the unfamiliar person might remain unclear;
  • A care manager proposing a change in accommodation for a person may need the involvement of a speech and language therapist to advise/assist if the person has significant communication difficulties;
  • A social worker proposing home care support for a person with dementia who is subject to safeguarding procedures may need the involvement of a community psychiatric nurse or psychiatrist to inform the mental capacity assessment;
  • A police officer considering an Achieving Best Evidence interview with a vulnerable person may seek health and social care support to provide relevant background and other information or support to assist with establishing the person's ability to consent to the interview;
  • A housing officer dealing with a housing application for someone presenting with confusion may need the involvement of a doctor, a social worker or other persons when assessing capacity to take on a tenancy and making any subsequent best Interest decision in relation to housing options;
  • Where a residential care worker/manager and a relative' have different views about a resident's capacity in relation to a particular matter, the involvement of a doctor or social worker, other person or professional may be needed to provide a second opinion.

In all situations, but particularly  the more complex where multi-disciplinary input is either current or needed, how the capacity assessment is going to be carried out, and who should be involved, over what period of time, should be planned in advance so that all participants are clear about their role and expectations. The degree of forward planning possible will be influenced by how urgently the decision needs to be made.

Summary: The opinions and involvement of other people or professionals to advise and assist may be integral to informing some assessments and best interest decisions. However, the final decision about a person's capacity to make the decision at the time it needs to be made, must be made by the person intending to carry out the decision, action or treatment (the 'decision maker') not the professional/other persons, who are there to advise. (CoP 4.42).


9. How to Assess Capacity: The Two Stage Mental Capacity Assessment Test (Chap 4 CoP)

Stage 1 (Diagnostic Test): Is there an impairment of the functioning of the mind or brain?

There are a number of conditions or factors that may result in different levels of impairment on either a temporary, permanent or fluctuating basis including:

  • Brain Injury and stroke;
  • Effects of drugs /alcohol;
  • Learning disability;
  • Urinary tract infection;
  • Dementia;
  • Side effects of medication;
  • Mental illness;
  • Shock /emotional trauma;
  • Progressive neurological disorders;
  • Severe pain.

Particular conditions may impact on particular areas such as:

  • General intellectual ability;
  • Memory and ability to learn;
  • Attention and concentration;
  • Verbal and visual comprehension;
  • Reasoning;
  • Information processing;
  • Executive skills - high level abilities important for initiation and completion of tasks, perseverance and flexibility in the face of challenges, inhibition of behaviours.

The significance of the impairment and how it impacts on decision making will vary according to the individual's circumstances and the type of decision to be made.

The assessment focuses on the relationship between the person's cognitive abilities and the demands of a particular situation or decision at a particular time.

The assessment needs to provide evidence which, 'on the balance of probabilities' demonstrates that the person's decision making process was distorted or impeded by a feature or symptom of the impairment such that the person does not have the capacity to make the decision, even though all practicable steps were taken by those involved to support the person to maximise their abilities to make the decision themselves.

If there is no formal diagnosis, there needs to be strong and supported evidence of impairment. Efforts reasonable to the seriousness of the circumstances and immediacy of need for a decision should be made to establish a diagnosis. This may also provide information that can inform strategies to maximise a person's capacity, or for example identify conditions such as an infection resulting in temporary confusion, where the decision can appropriately be deferred until treatment is complete and the person has regained capacity to make the decision.

Stage 2 (four part functional test)

The Act says that a person who has an impairment of the functioning of the mind or brain is unable to make the decision if they are unable to satisfy any one or more of the four parts of the functional test described below. (Chapter 4 CoP). Unless the situation is extremely urgent, a capacity assessment in relation to a significant decision will rarely be concluded as ‘stand alone’ one –off exercise, but will evolve over a period of time, during which the practitioner has been applying the 2nd statutory principle of providing all practicable support to help the person make the decision for themselves.

  1. Understand information relevant to the decision to be made

    Adequate planning and preparation for this first part of the test is crucial. Planning must include consideration of how e.g. social, cultural or religious factors may impact on the persons priorities and how sensitive issues are addressed What information practitioners/ others present, and how they present it  may significantly affect the person's ability to understand and satisfy this first stage, and following that, all the other stages of the test. Management of environment and particular symptoms may also increase the person's capacity. The person undertaking the assessment must themselves be clear about what the decision(s) is and be able to provide accurate information relevant to the decision options If for example, the practitioner’s assessment outcome is that  the persons needs are too ‘high’ to be met at home, information provided should include what resources are available and consideration include e.g. the likely psychological/emotional benefits of a person being in their own home alongside any risks resulting from unmet need, alongside e.g. any alternative accommodation and support  options.
  2. Retain the information in their minds

    How long the person needs to be able to retain the information for will depend on the complexity of the decision and on the opportunity to keep information live in other ways, for example visually or through sound recording. The person needs to be able to retain information for long enough to demonstrate they have understood and considered different possible outcomes (below). Where the person has severe short term memory problems, repeat meetings will help to evidence the consistency or otherwise of previously expressed views.
  3. Use or weigh up the information as part of the decision making process

    The person needs to be able to demonstrate adequate understanding of the implications/ advantages and disadvantages of different decision option(s) or of not making a decision, and how the reasonably foreseeable consequences of each apply to themselves, including impact on significant others.
  4. Communicate that decision (by any means)

    Other than those in a coma or unconscious, very few people are unable to communicate in any way at all. A capacitated decision can be indicated through simple movements, for example by blinking, eye contact or squeeze of hand. However, whilst a person with severe communication difficulties may be able to clearly indicate a preference, their understanding of risk may be harder to establish and require specialist input. To demonstrate capacity, physical or verbal compliance or a strongly articulated decision must be made with insight (see 3, above).

The Functional test does not refer specifically to the notion of ‘executive capacity’, which is the process of planning and putting a decision into effect by oneself, or by delegation to another person.  Impaired executive function can also impede error correction, managing new, dangerous or technically difficult situations, or managing situations which require the overcoming strong habitual responses. Difficulties with executive functioning may be masked by high performance in other areas, in particular communication and social skills. People with impaired executive functioning may for e.g. score highly on the Mini Mental State Examination. Specialist (Clinical) advice or assessment may be needed to identify the level and  impact of impairment.

If the decision is not urgent or the situation is complex, it may be necessary to carry out the assessment in different stages over a period of time and/or to repeat elements to ensure consistency or reliability of the findings.


10. Best Interest Decision Making and Care Planning

See also Mental Capacity Act 2005 - Guidance for Best Interests Meetings.

If a person is assessed to lack capacity to make a particular decision, the decision maker must make a “best interest decision”. If the situation is complex and requires the input of different people and professionals, a formal best interest planning meeting may be required. This meeting should be chaired by a senior worker with relevant skills and experience and with a minute taker to formally record the issues covered, outcome, and rationale behind decisions made, using the Best Interest Decision Making Meeting Pro-Forma.

The Code of Practice identifies factors, known as the 'best interests check list' (CoP 5.13) which must be considered when determining the best interests of a person who has been assessed to lack capacity to make a particular decision in relation to their care or treatment.

  • Do not make assumptions about Best Interests based merely on age, appearance, diagnosis or behaviour;
  • Take into account all circumstances relevant to the decision and the person;
  • Involve the person as far as possible in the decision making process;
  • Can the decision be delayed until the person regains capacity?
  • The person's past and present wishes, beliefs and values must be taken into account, along with any written statements of preference;
  • Consult with all relevant others, family and informal carers as well as professionals and any appointed Attorney, Deputy or Independent Mental Capacity Advocate;
  • Seek the least restrictive/interventionist/invasive option likely to achieve the health/welfare objective;
  • When the decision relates to life sustaining treatment, the decision maker must not be motivated by a desire to bring about the person’s death.

It must be considered whether a decision option might decrease the likelihood of one harm e.g. physical injury, but increase the risk of another harm e.g. social isolation or emotional distress. A ‘balance sheet’ approach, as adopted in the Court of Protection, listing the different risks and benefits and weightings of each, for the person and their particular circumstances, is recommended.

When a now incapacitated person has made a valid and applicable advance decision to refuse medical treatment, this has the same effect as a decision made by a person with capacity so does not fall within 'best interests' and must be followed. (CoP 9.2)

If there are concerns about the motives of others who are involved with the person, consider how they can appropriately have the opportunity to give their opinions so that these can be properly addressed within the best interest decision making process.

The amount of care and subsequent monitoring of a best interest care plan will be influenced by levels of capacity and the person's ability to manage risk. Failure to take adequate steps to protect an incapacitated person from reasonably foreseeable harm may result in negligence and a failure to discharge the local authority's duty of care.


11. Recording Mental Capacity Assessments and Best Interest Decisions

The Code of Practice recommends, as a matter of good practice, that appropriate records of assessments and outcomes are made and kept. This supports the principle of transparency and accountability in decision making. It also protects staff in the form of either demonstrating due regard to the Code of Practice, or giving reason for departure from it. Staff are required to record assessments and decisions in line with the guidance provided below.

  • The MCA covers all types of decision from simple day to day to complex, high risk or long term;
  • The level and formality of assessment should be proportionate to the level and complexity of the decision. The Code of Practice states that for some day to day decisions, no formal process or recording may be needed, but that the member of staff who is the decision maker must have ‘reasonable belief’ having applied the 2 stage test, that the person lacks capacity. If asked, they should be able to describe how they came to their conclusion;
  • Simple decisions can be made quickly and informally, whilst more complex decisions need to be given due time and thought. A chaired multi-disciplinary forum with minute taker may be required for complex situations and significant decisions (see Section 10, Best Interest Decision Making and Care Planning);
  • Whilst capacity is time and decision specific, if it is known that the person has an impairment that can impede some areas of decision making, this should be appropriately documented in the assessment/care plan;
  • Any specific help, strategies or other considerations that are needed to assist the person to make decisions should also be documented in the Care Plan along with any known wishes/preferences. This is particularly important if a person's capacity is subject to fluctuation;
  • The person’s capacity in relation to specific decisions should be reviewed at intervals appropriate to their situation as capacity may change e.g. with improvement in health or with new learning and increased skills.

The recording guidance table (Appendix 1: Recording Guidance Table) is to assist staff when considering the level of formality of assessment and any subsequent best interest decision making, and the level of formality of recording. However, an apparently simple decision may be made complex by the individual's particular circumstances. Each decision should be considered on a case by case basis with advice sought from a line-manager where there is lack of clarity or complexity and to agree level of assessment and recording.

When a best interest decision has been made, the decision maker should be able to provide clear reasons how the decision was reached, who was involved, what factors were taken into account and how the decision is the least restrictive in the circumstances.

The Guidance which accompanies the FACE Mental Capacity Assessment Tool assists practitioners to demonstrate compliance with the Mental Capacity Act and 'due regard' to the Code of Practice. A new Version of the FACE assessment tool and accompanying guidance is to be introduced later this year (2015).

11.1 CareFirst 6 Recording

The FACE Mental Capacity Assessment is now embedded in CF6 (Care Assess) and replicates the paper version. The FACE MCA guidance should be used as previously.

To add a Mental Capacity Assessment in Care Assess:

  • Select the ‘Find assessment’ ICON on the left of the client clip board;
  • Select ‘ADD’;
  • In ‘Questionnaire context’ select ‘Adults (Care Assess)’;
  • In Assessment Type select ‘Mental capacity assessment (FACE);
  • Assign to Worker /Team;
  • Input Start date;
  • Save.

All formal Mental Capacity Assessments carried out in relation to significant decisions must be recorded in CareAssess and require managerial sign off. For practitioners who do not record in CareAssess, the FACE MCA paper template now includes a section for managerial sign off.

Details of relevant others who are able to support and represent the person, such as family or friend, Independent Mental Capacity Advocate (IMCA), other advocate, appointee, LPA (personal welfare or property and affairs), Deputy appointed by the Court of Protection must also be recorded in the CareFirst 6 record.

POhWER, the IMCA provider service for Brighton and Hove has been created as an organisation in Carefirst 6 and details of an Independent Mental Capacity Act Advocate should be entered as a ‘Relationship - professional’. There is a specific option- IMCA. The name of the IMCA and any contact details should be entered in the notes field.

“Power of Attorney” is now obsolete as a “contact” option. Lasting and Enduring Powers of Attorney, Court appointed Deputies and Appointees should be entered as a ‘Contact’ using the appropriate options which can be found in the contact type picklist.

Details of any known advance decision should be recorded in the Mental Capacity Assessment.


12. Planning Ahead for a Time when Capacity is Impaired

All staff must be aware that a person without capacity may have taken steps to make their wishes known, or to have appointed someone to act as their decision maker.

12.1 Lasting Powers of Attorney

Prior to the MCA, people over 18 with capacity to do so, could make an Enduring Power of Attorney (EPA) to manage their property and financial affairs. Existing EPA's remain valid, but from October 07 these were replaced by 2 different types of Lasting Powers of Attorney: LPA property and affairs and LPA personal welfare.

Making a LPA is an important decision with significant implications and it is important that the donor has thought carefully about this and is clear it is the right decision for them, bringing the advantages/benefits intended. Because the attorney is given significant responsibilities and powers under an LPA, the Act also introduces a number of safeguards in order to reduce opportunities for abuse and misuse of powers by Attorneys. These include the requirement for the donor to identify 'named persons' to be notified when the LPA is to be registered, and 'certificate provider(s)' who certify that the person (donor) understands the purpose and scope of authority of the LPA and did not make the application under duress. Chapter 7 of the CoP gives details of the role and responsibilities of a Lasting Power of Attorney, and steps that can be taken to address any concerns. Staff working with a person who has appointed a Lasting Power of Attorney should familiarise themselves with this guidance.

All the forms and accompanying guidance can be found on the Office of the Public Guardian (Justice website).

12.2 Key Points

  • A Lasting Power of Attorney (LPA) is a formal legal document which gives the appointed person (known as attorney or donee) the authority to make decisions as prescribed in a legal format, by the person (donor), regarding their property and affairs or their personal health/welfare;
  • Both EPAs and property and affairs LPAs can be used whilst the person still has capacity to manage their affairs, unless the donor has stated otherwise. An EPA can be used without being registered until the person has lost capacity, following which it must be registered;
  • Both property and affairs and personal welfare LPAs must be registered with the Office of the Public Guardian before they can be used;
  • Attorneys must abide by the MCA's statutory principles and show due regard to the Code of Practice;
  • An Attorney can be anyone over 18 years old chosen by the donor, for example a family member, friend or solicitor. People who are bankrupt cannot act as a Property and Affairs LPA. Local authority staff cannot act as attorney for someone they have a duty of care towards due to conflict of interest;
  • Staff may not be protected from liability if they make a decision or carry out an act without having taken reasonable steps to identify and consult with, or which conflicts with a decision lawfully made by the holder of a LPA;
  • A personal welfare LPA does not have authority to make decisions when:
    • The donor has capacity to make the decision in question;
    • The donor made an advanced decision to refuse a treatment in question unless they made the LPA after the advance decision, giving the attorney the right to make that decision;
    • The decision relates to life-sustaining treatment, unless the LPA expressly authorises this;
    • The donor is detained under the Mental Health Acts 1983 /2007 and the treatment in question is for mental disorder.

12.3 Verification of Validity of LPA

The existence of an LPA and the extent of its powers should be verified by the care coordinator or other appropriate member of staff (e.g. finance officer, housing benefits officer). The attorney should be able to produce the necessary documentation including:

  • Part a) Signed and dated donor statement detailing extent of powers and any restrictions;
  • Part b) the certificate provider(s) statement confirming that the donor had capacity and was not under duress when making the LPA;
  • Part c) The signed and dated attorney statement.

When registered, each page will either be stamped and dated with the Office of the Public Guardian seal or will have the OPG perforation throughout the document. Verification can also be obtained by contacting the OPG to request a search of the register using either the name of the Attorney or the 7 digit reference number provided following registration. There is no charge to the local authority for this search.

The contact details of the Office of the Public Guardian are:

E-Mail: custserv@guardianship.gov.uk

Tel: 0300 456 0300 (Customer Services)

12.4 Certificate Providers for the Creation of a LPA

Registered health care professionals and social workers are listed in the Guidance published by the OPG as suitable skills based Certificate Providers and could be approached by individuals to act as such for the purpose of creating an LPA. There are no arrangements or agreements in place for the Local Authority to support staff in this role. Any social care professional who is considering taking on this role must be aware that they would be doing so in their own time, acting as an independent professional, and not as a Local Authority employee and is therefore strongly advised to make themselves fully aware of their responsibilities/ liabilities including possible conflicts of interest. In particular circumstances and following line manager consultation, it may be appropriate to provide information or assist a person in other ways to identify a certificate provider.

12.5 Advance Decisions to Refuse Medical Treatment

A person aged 18 or over with capacity to do so, can make an Advance Decision to specify what particular types of treatment they would not want to have, and in what circumstances, should they lack the capacity to make these decisions at any in the future.

An advance decision can be about any form of treatment and does not have to be in writing, except where this relates to life-sustaining treatment.

A valid and applicable advance decision to refuse a particular medical treatment has the same force as when a person with capacity refuses the treatment.

When making a decision about treatment for someone who is unable to consent to it, the decision maker must take all reasonable steps, in the circumstances, to establish if an advance decision exists, is valid, and applicable to the particular treatment in question. Chap 9 CoP details the requirement for making and following an advance decision, and the responsibilities of professionals involved.

The advance decision is not valid if:

  • The person has withdrawn it, for example making an LPA that relates to the treatment in the advance decision;
  • The person is acting in a way that is clearly inconsistent with the advance decision.

The advance decision is not applicable if:

  • The person actually has capacity to make the decision in question;
  • It does not clearly refer to the treatment in question and explain the circumstances the refusal refers to;
  • There are reasonable grounds for believing the existing circumstances were not anticipated by the person and these circumstances would have affected their decision had they been anticipated.

People can make an advance decision to refuse treatment for a mental disorder, but this decision can be overridden if the person is detained under the Mental Health Act.

12.6 Advance Decisions to Refuse Life-Sustaining Treatment (CoP 9.24-9.28)

People cannot make an advance decision to ask for their life to be ended (advance decisions can only refuse, not request treatment) but the MCA sets out additional requirements which must be fulfilled if the decision is to refuse life-sustaining treatment.

  • It must be in writing - this includes decisions that have been written on the person's behalf, or recorded in their medical notes;
  • It must be signed by the maker in the presence of a witness who must also sign the document. If the person cannot sign it for themselves they can nominate someone to sign on their behalf, but the witness must sign to confirm they witnessed the person directing the nominated person and the nominated person signing in the presence of the person making the advance decision;
  • It must be verified by a specific statement made by the maker, either included in the document or in a separate statement. The statement must say that the advance decision applies to the specified treatment even if life is at risk. Separate statements must also be signed and witnessed as above.

A valid and applicable advance decision to refuse life sustaining treatment has the same strength as a contemporaneous decision made by a person with capacity, to refuse that treatment.

12.7 The Role of Local Authority Staff and Advance Decisions

Health, rather than social care staff will be more commonly involved in consideration of different treatment options, but a person e.g. with a progressive or terminal illness, may initially raise concerns or issues about their future treatment and quality of life with a social care or other local authority worker with whom they already have a relationship. In these circumstances, it is important that staff have an awareness of options available so that they can give accurate basic information and appropriately sign post to a relevant health professional, team, or organisation (e.g. G.P. Macmillan service, Alzheimer's disease society) so that the person will get the necessary support and advice.

It is the responsibility of the capacitated person making the advance decision to make the relevant health and other professionals, family and others of their choice, aware of any advance decisions. However, there would be a breach of duty of care if Social Care, Health or Provider professionals did not take reasonable steps to ensure that information given to them was properly recorded and appropriately shared - for example, where a person moving between home/ hospital/nursing home has made a 'not for resuscitation' or other refusal of treatment decision.

12.8 Statements of Wishes, Feelings, Beliefs and Values

When making a best interest decision, the decision maker and others involved must take into account as far as 'reasonably ascertainable' the person's past/present wishes and feelings, beliefs, values or other factors that they wish to be considered (CoP 5.37-38).

A person may have written down or told people their wishes about any aspect of their care or life including personal preferences, such as having a shower rather than a bath, or about important cultural and personal values/beliefs such as following a particular diet, keeping pets, observing religious festivals or norms or continuing to donate to a particular charity.

These statements must be taken into account when care planning and the decision maker must give valid reasons if a known preference is not followed. The best interest decision will include individual preferences and values, but will also be bound by professional assessments of need, with public policy and law, including resources being taken into account where appropriate. For example, a best interest decision may determine that a person lives in a placement where they can take their cat, but may not be in their preferred area. When the need for an urgent decision or action precludes the possibility of ascertaining or following a person's wishes or feelings, these should be considered retrospectively as appropriate.


13. Court of Protection and Court Appointed Deputies

The Court of Protection's jurisdiction covers the whole of the MCA, including the appointment and supervision of Court Appointed Deputies. If a person loses capacity in relation to property/finance decisions or personal health and welfare decisions without having made a valid and applicable Lasting Power of Attorney, and the court is not able to make a one-off decision on a matter that could not be otherwise be resolved, their particular circumstances may require the appointment of either a Property and Affairs Deputy, (previously known as a 'receiver') or a Personal Welfare Deputy, to make ongoing and significant decisions. The Office of the Public Guardian is responsible for supervising and supporting Deputies.

In most cases, it will be a family member with appropriate knowledge or skills who will apply to be a Deputy, but it is ultimately for the court to decide who is appropriate to appoint in the circumstances. Where a person has nobody within their family, or other person who might be appropriate, such as a solicitor who they have previously instructed in relation to other matters, the court can appoint from the Office of the Public Guardian panel of professional deputies. This may more commonly be to act as a Property and Affairs Deputy where the person has property and assets over and above welfare benefits. Forms and guidance relating to the appointment of deputies can be found on the OPG Website.

The Court of Protection customer services can be contacted on Tel: 0300 4564600 or E-mail: courtofprotectionenquiries@hmcts.gov.uk

The Court of Protection also has the power to:

  • Make a declaration about a person's capacity to make a decision where there is disagreement which cannot be resolved;
  • Make decisions about the validity of an LPA or EPA, and about the removal of Attorneys or Deputies who fail to carry out their duties;
  • Make decisions in relation to particularly serious medical treatment cases such as non therapeutic sterilisation and abortion, experimental or controversial treatments, organ transplant, any withdrawal of treatment cases.


14. Independent Mental Capacity Advocacy (IMCA)

This is a statutory service funded by the Department of Health. The provider for Brighton and Hove is POhWER (Tel: 0300 456 2370). Referral forms and associated guidance can be found on POhWER’s website.

The IMCA service provides an Independent Advocate for people who have no family, friends or others able or appropriate to consult with and represent them, and who have been assessed to lack capacity in relation to particular decisions or proposals. The IMCA can:

  • Represent and support the person who lacks capacity;
  • Consult with relevant others;
  • Ascertain the person’s wishes and feelings as far as possible;
  • Access relevant health and social care records;
  • Ascertain which different courses of action have been considered;
  • Request a second medical opinion;
  • Evaluate information;
  • Submit a report to the decision maker which must be considered when making a best interest decision.

The person responsible for instructing an IMCA will be the decision maker working within the responsible Health or Local Authority and who is proposing the move or treatment. The IMCA is not a decision maker, but may challenge a determination of incapacity or best interest decision. The IMCA provides an important safeguard for people who lack capacity and their involvement should be viewed positively.

The decision maker has a statutory duty to involve an IMCA if a decision needs to be made about either:

  • Serious medical treatment (CoP 10.42-10.50);
  • A move or stay in Long term care of more than 28 days in hospital or 8 weeks in a care home. This includes accommodation provided under s117 Mental Health Act. (CoP 10.51-10.58).

An IMCA should be instructed as early as possible following a determination of incapacity as the IMCA’s input and recommendation is an essential part of best interest decision making. It is unlawful for a decision to be made in the above situations without an IMCA being involved in the process. If the decision is very urgent and cannot wait for the appointment of an IMCA, the IMCA must still be instructed and involved subsequently as needed.

The decision maker has the power to involve an IMCA where the criteria are met in relation to:

  • Accommodation reviews where the person has no one else to represent them;
  • Safeguarding cases where the person is either victim or alleged perpetrator, regardless of the involvement of family or friends.

In circumstances where the decision maker has the power to instruct an IMCA, reason(s) for not doing so must be given in the person’s record.

If, having considered the referral guidance, a member of staff remains unclear about whether the criteria is met, or is concerned that following consultation the decision maker has not correctly fulfilled their duty or power to instruct an IMCA, they should contact the IMCA service directly for advice, and/ or discuss with their line manager as appropriate to the circumstances.

It is for the decision maker to judge whether a person is 'appropriate' to represent the incapacitated person, thus negating the need for an IMCA. This may be clear where there is obvious conflict of interest or safeguarding issues. Other situations may include where a relative has little personal knowledge or interest in the person, or may be very involved but feel their relationship with the person might be jeopardised if they are actively involved in decision making.

Chapter 10 Code of Practice describes the role of the IMCA service and guidance in relation to different situations where an IMCA must or may be instructed.

The Care Act 2014 also introduces duties to arrange an advocate if 2 conditions are met:

  • The person would have otherwise have substantial difficulty being fully involved in assessment, care planning, review, or safeguarding enquiries;
  • There is no appropriate individual available to support and represent them (other than paid workers).

This means that some people who would be entitled to an IMCA in relation to specific decisions e.g. accommodation changes and medical treatment decisions, may be entitled to Care Act advocacy support at an earlier stage in their contact and involvement with Adult services.

See Independent Advocacy Procedure.


15. Mental Capacity and Safeguarding Procedures

The Pan Sussex Multi-Agency Policy and Procedures for safeguarding Adults will apply to:

  • An adult who: has needs for care and support (whether or not the local authority is meeting any of those needs); and
  • Is experiencing, or at risk of, abuse or neglect; and as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.

Exploitation, in particular, is a common theme that can be linked to all types of abuse.

Many adults will fall within this definition whilst still retaining capacity to make decisions and choices in relation to the particular circumstances which have led to the initiation of safeguarding procedures and any subsequent Enquiries, Those who lack capacity will be additionally vulnerable so it is important that the issue of capacity or difficulty engaging with the process is addressed early so that statutory duties as required by the MCA (e.g. power or duty to instruct an IMCA), or by The care Act 2014 to provide an advocate, are fulfilled and any additional safeguards that the person is entitled to are put in place.

15.1 The Safeguarding Adults Enquiry

During the S42 (Care Act) ' Safeguarding Enquiry the Lead Enquiry Officer/Enquiry Supervisor will determine in consultation (where possible) with the Adult (or their representatives) how they wish the concern to be responded to. If the Adult appears to have substantial difficulty in participating in the process (see S.68 Care Act 2014) arrangements should be made for an advocate (or other appropriate person) to enable them to express their views and wishes. Where there is doubt about the person’s ability to understand the safeguarding concern, even with the appointment of an advocate, the Lead Enquiry Officer or Supervisor will decide if/when the person’s capacity in relation to specific decisions should be assessed.

15.2 People with Capacity

Where, following assessment it is determined that a person does not have capacity, they must be involved as fully as possible and appropriate in the safeguarding process. Responsibility for risk management lies within the S42 Care Act Safeguarding Enquiry and all decisions and actions must be based on an assessment of the person's needs and what is in their best interests. This will include the least restrictive practicable means of achieving the intended outcome and reducing risk, but may not necessarily mean removing risk altogether. Where it is determined that some exposure to reasonable degrees of risk is in the person's best interests this should be properly demonstrated through risk assessment and management plans and following consultation with all relevant people. As with the mental capacity assessment process, the best Interest decision making process must be clearly outlined in the FACE and any related documentation.

Where a person is assessed not to have capacity, and they meet the criteria for an IMCA (see 14) it may be appropriate, to involve the IMCA from the outset and throughout. Such situations might include where the individual's wishes could have a significant impact on how the enquiry is carried out or where immediate actions need to be taken.

15.3 People without Capacity

Where, following assessment it is determined that a person does not have capacity, they must be involved as fully as possible and appropriate in the safeguarding process. Responsibility for risk management and implementation of the safeguarding plan will lie within the local authority's duty of care, and all decisions and actions must be based on an assessment of the person's needs and what is in their best interests. This will include the least restrictive practicable means of achieving the intended outcome and reducing risk, but may not necessarily mean removing risk altogether. Where it is determined that some exposure to reasonable degrees of risk is in the person's best interests this should be properly demonstrated through risk assessment and management plans and following consultation with all relevant people. As with the mental capacity assessment process, the best Interest decision making process must be clearly outlined in the FACE and any related documentation.

Where a person is assessed not to have capacity, and they meet the criteria for an IMCA (see 14) it may be appropriate, to involve the IMCA at the Strategy Discussion stage. Such situations might include where the individual's wishes could have a significant impact on how the investigation is carried out or where immediate actions need to be taken.

15.4 Criminal Offences of Ill Treatment and Neglect

S 44 of the MCA introduces two new criminal offences with penalties of up to 5 years imprisonment:

  • Ill-treatment of a person who lacks capacity; and
  • Wilful neglect of a person who lacks capacity.

These offences apply to anyone caring (paid, professional or informal) for a person who lacks capacity to make decision(s) in relation to their care in either residential, nursing, hospital care or their own home, including attorneys and court appointed deputies.

In addition to the safeguards already built in to the application processes for appointment of LPA's, EPA's and Deputies, the Office of the Public Guardian (OPG) can work with relevant agencies to investigate complaints or allegations of abuse against attorneys or deputies. Concerns about an Appointee (for welfare benefits) can be referred to the Department of Works and Pensions (DWP)

Staff must, as a matter of course, check and confirm the validity of a person's status and remit as LPA, EPA, Appointee, or Deputy (see 11) and if they have any concerns regarding validity or improper use of power they must discuss the matter with their Line Manager and the legal department as necessary to consider, for example, safeguarding procedures and if appropriate to refer the matter to the Office of the Public Guardian, or DWP.

Chapter 14 Code of Practice and the Office of the Public Guardian (Justice website) describe in more detail the role of the OPG and safeguarding issues.


16. The Relationship between the Mental Capacity Act and Mental Health Acts 1983/2007 (Chap 13 CoP)

The MCA can be used to treat (with some treatment exceptions including psychosurgery) people for mental disorder when they cannot consent due to lack of capacity, and where the treatment is in their best interests.

However the MCA does not apply, and the Mental Health Acts (MHA) 1983 /2007 will need to be considered where:

  • A person without capacity needs to be detained, or restrained in a way that is not permitted under the MCA in order to receive the treatment for their mental disorder;
  • The person made a valid and applicable advance decision to refuse that particular treatment for their mental disorder.

Just as an advance decision to refuse treatment for mental disorder can be over-ridden where necessary, attorneys or deputies cannot consent to, or refuse, treatment for mental disorder on a person’s behalf if the person is detained under the MHA. The exception to this is in relation to Electro Convulsive Therapy (ECT) when it will not be permissible for ECT to be given if it conflicts with an advance decision or the views of a deputy or attorney.

For people detained under the MHA, the MCA does apply in other respects. An advance decision to refuse treatment for any illness or condition other than mental disorder is not affected, nor is an attorney's power, within their remit, to consent to such treatment. It also means that where a detained person lacks capacity to consent to treatment, other than treatment for mental disorder, the decision-maker will need to act in accordance with the MCA.

If time allows, it may be possible to treat a mental disorder under the MHA/83/07 in order to allow the person to regain capacity to make a decision about the treatment for a physical disorder.

In April 2009, the MHA 2007 amended the MCA to provide provision and procedures to allow for lawful ‘deprivation of liberty’. The deprivation of Liberty Safeguards apply when the person does not meet the requirements to be detained under the Mental Health Act, but may need to be deprived of their liberty in order to receive the care/treatment they need to protect them from harm. Since the Deprivation of Liberty Safeguards have been in use, much attention has been given to whether the Mental Health Act has primacy over the Mental Capacity Act. If a person lacking capacity to consent to treatment for their mental disorder, objects to being admitted to, or remaining in hospital for treatment for that treatment, this is a strong pointer that the Mental Health Act 1983 should be used. However if the person’s circumstances are such that there is a ‘genuine ‘ choice between the 2 regimes this must be clearly described /evidenced and a judgement must be made about what is best for that person. This remains a complex area of practice and Law, and where there is a real dispute, it may be necessary to seek a decision from the Court of Protection


17. Resolving Disagreements and Disputes

Sometimes there will be disagreement between professionals, carers, family, Attorneys, Deputies and/or the incapacitated person about:

  • The determination of capacity/incapacity;
  • What is in the person's best interests;
  • A decision or action that has been made or taken on the person's behalf.

Disagreement can be a positive factor resulting in appropriate review of assessment or decisions. Appropriate planning and consultation at the outset is likely to reduce subsequent disagreement or dispute which cannot be resolved through informal processes. Staff should alert their manager at an early stage if dispute is indicated.

All efforts must be made to settle disagreements informally before considering more formal processes, for example:

  • Go through the different issues/ options again to clarify any misunderstanding;
  • Seek second opinion;
  • Involve an advocate from a local advocacy service if available and appropriate;
  • Arrange a case conference or meeting.

Where there is disagreement between family members, the Family Mediation Service (01273 700812) may be able to assist but there may be a charge for this service.

Disagreement between Local authority staff, and with other professional, should be dealt with at the appropriate Management level.

Concerns about Health Authority decisions can be referred to The Patient Advice and Liaison Service which operates in every NHS and Clinical Commissioning Group and may be able to assist with resolution, before considering the Formal NHS complaints procedure.

Incapacitated persons, their carers and/or advocates acting on their behalf can use the formal complaints procedure, if the disagreement is with the Local Authority and cannot be resolved informally. For further advice contact the Complaints unit in Brighton and Hove City Council on 01273 291229.

Chapter 15 of the Code of Practice gives further guidance on resolving disputes.

Ultimately, disputes about significant decisions may have to be referred to the Court of Protection, but it will be necessary to show that all other reasonable efforts and steps to resolve have been taken without success.


18. Confidentiality and Access to Information

Where a person lacks capacity to consent to share information, disclosure of personal information may be justified under 'Best Interests'. An assessment of capacity may require the sharing of information amongst different health and social care workers. Only as much information as necessary and relevant should be shared.

Staff should consider the authority of the person making the request, the type of information requested, if disclosure is legal and justified, and balance best interests and public interests against the right to privacy (European Convention on Human Rights Article 8).

Attorneys and deputies can see information that is relevant to decision(s) that fall within their remit. Attorneys appointed under personal welfare LPA's, can decide whether information can be disclosed and should normally be consulted before any information is shared. Where the urgency of a situation precludes consulting the attorney or deputy, staff must act in the patient's best interests and inform them of actions taken as soon as practicable.

IMCAS representing and supporting a person who lacks capacity have the right to access all relevant records (s35(6) MCA).

Nothing in the MCA overrides the guidance from the Information Commissioner's Office on the Data Protection Act 1998. Staff should also refer to their Professionals codes of conduct about confidentiality.


19. Training and Awareness

All local authority employees who work directly with vulnerable people must undergo a minimum of basic awareness training on the Mental Capacity Act and its implications for their role, and further /advanced training as necessary for them to carry out their responsibilities.

Managers must have knowledge of and authorise all formal mental capacity assessments completed and use supervision to discuss and agree additional training needs appropriate to role, level and complexity of work undertaken.

Contact Workforce Development Team -
Tel: 01273 291460 or E-mail learning@brighton-hove.gov.uk.


20. References, Websites and Resources

Mental Capacity Act 2005

Mental Capacity Act 2005 Code of Practice

Independence, choice and risk: a guide to best practice in supported decision making (DOH 2007)

POWhER website or Tel: 0300 456 2370

Office of the Public Guardian (Justice website)

Mental Capacity Act Deprivation of Liberty Safeguards Code of Practice

SCIE - Mental Capacity Act Resource

A Brief Guide to Carrying out Mental Capacity Assessments: 39 Essex Street

A Brief Guide to Carrying out Best Interest Assessments: 39 Essex Street


Appendix 1: Recording Guidance Table

Decision Type Who should be involved Recording

Simple/informal

e.g. provision of/ assistance with day to day care or treatment such as personal care, meals, shopping, routine therapies, medical or nursing care.

(S5 Acts- see Chap 6 CoP)

Decision Maker

Direct carer or member of Staff e.g. residential, nursing or home carer, GP, Physiotherapist, Occupational therapist.

Social care, nursing, medical record or other care plan should identify the type of decisions, action and level of support that may be needed and why, and a note of actions may need to be recorded in the relevant record.

Significant/formal

Longer term decisions involving a change in how care is provided e.g. respite or day services, housing, finances, more complex moving and handling decisions or invasive medical procedures.

Note any advance decisions or stated preferences.

Application to Court of Protection may need to be considered e.g. unresolved disagreement about best interests, termination of tenancy.

Decision Maker

Person proposing care or arrangements e.g. social worker/care manager, doctor, nurse, OT, housing officer. The decision maker must consult with all relevant others, professional and informal, including LPA, EPA, Deputy, IMCA if applicable) e.g. through Best Interest planning or decision meeting as part of care management process. Specialist assessments as required to inform decision making. Legal advice may be required.

FACE Mental Capacity Assessment Tool recording tool embedded within CF6 (Careassess) or paper version for non CF6 users

Case Note on relevant record or file to show formal assessment undertaken or other Mental capacity Act related activity. For Care first users, select ‘ add observation’ and in ‘subject’ field, add ‘Mental Capacity’’.

All MCA’s must be authorised by the line manager.

Care Plan amended as applicable.

Life Changing/Complex/high risk/contentious

e.g. Changes in long term accommodation, serious medical treatment, safe guarding Adults or other situations where there is high risk of disagreement or contention, ethical dilemma. Application to Court of Protection may need to be considered, as above.

Decision Maker

Person proposing the arrangements or care e.g. social worker or doctor. The decision maker must consult with all relevant others as above within chaired Multi disciplinary and/or safeguarding framework for planning and decision making. Legal Advice may be required.

FACE Mental Capacity Assessment Tool

Record as above.

Care Plan amended as applicable.

The Best Interest Planning Meeting template and guidance may be appropriate for complex decision making.

End