MENTAL CAPACITY ACT POLICY - Isle of Wight NHS Trust Capacity Act MC… · Title: Mental Capacity...

of 33 Title: Mental Capacity Act Policy Version No. 1

MENTAL CAPACITY ACT POLICY

Document Author Authorised

Written By: Mental Health Act and Mental Capacity Act Lead Date: October 2019

Authorised By: Chief Executive Date: 9th December 2019

Lead Director: Director of Mental Health and Learning Disabilities

Effective Date: 9th December 2019

Review Date: 8th December 2022

Approval at: Policy Management Sub-Committee

Date Approved: 9th December 2019


DOCUMENT HISTORY (Procedural document version numbering convention will follow the following format. Whole numbers for approved versions, e.g. 1.0, 2.0, 3.0 etc. With decimals being used to represent the current working draft version, e.g. 1.1, 1.2, 1.3, 1.4 etc. For example, when writing a procedural document for the first time – the initial draft will be version 0.1)

Date of Issue

Version No.

Date Approved

Director Responsible for Change

Nature of Change Ratification / Approval

October 2019

0.1 Director of Mental Health and Learning Disabilities

New policy which was originally guidance to reflect policy and case law developments

25/10/19 0.1 Director of Mental Health and Learning Disabilities

Endorsed at Clinical Standards Group

18/11/19 1.0 09/12/2019 Director of Mental Health and Learning Disabilities

Approved via voting buttons by

Policy Management Sub-Committee

NB This policy relates to the Isle of Wight NHS Trust hereafter referred to as the Trust


Contents 1 Executive Summary ....................................................................................................... 4

2 Introduction .................................................................................................................... 4

3 Definitions ...................................................................................................................... 4

4 Scope ............................................................................................................................ 5

5 Purpose ......................................................................................................................... 5

6 Roles and Responsibilities ............................................................................................. 6

7 Policy detail/Course of Action......................................................................................... 6

8 Consultation ................................................................................................................. 23

9 Training ........................................................................................................................ 23

10 Monitoring Compliance and Effectiveness.................................................................... 24

11 Links to other Organisational Documents ..................................................................... 24

12 References .................................................................................................................. 24

13 Appendices .................................................................................................................. 25

Appendix A: Assessment of mental capacity Proforma Appendix B: Best Interests Proforma Appendix C: Best Interests Balance Sheet Appendix D: Equality Impact Assessment


1 Executive Summary The Mental Capacity Act 2005 was introduced in 2007 to empower and protect vulnerable persons over the age of 16 years. It enables people to plan ahead for a possible loss of capacity and provides a framework for decision-making on behalf of those who are unable to make at least some decisions for themselves. The Act was amended in 2009 to provide safeguards for people who need to be cared for or treated under significant restrictions (the Deprivation of Liberty Safeguards). The Act reflects the development of case law relating to mental capacity and the European Convention on Human Rights.

2 Introduction This document is intended to assist all staff working with service users/patients with impaired mental capacity. It gives guidance on how to support people to make decisions, and when they are unable to make decisions, what principles to follow to act in their best interests. This guidance should be read alongside the Isle of Wight NHS Trust’s Consent Policy. This policy is not intended to supplant the Code of Practice to the Mental Capacity Act, which should be referred to for more detailed guidance.

3 Definitions Advance Decision to refuse medical treatment (ADRT) is a decision made by a person, which remains valid after loss of mental capacity. An ADRT does not have to be in a specific format, but if it concerns life-sustaining treatment it must be in writing, signed and witnessed. Consent is the voluntary and continuing permission of the person to the intervention in question, based on an adequate knowledge of the purpose, nature, likely effects and risks of that intervention, including the likelihood of its success and any alternatives to it. Permission given under any unfair or undue pressure is not consent. Cognitive function/Cognition is the “act or process of knowing, including every mental process that may be described as an experience of knowing (including perceiving,

recognizing, conceiving, and reasoning)” [Encyclopaedia Britannica Online 2004]. Measurement of impairment of cognitive functions involves assessment of the following elements of mental performance: orientation, registration, attention and calculation, recall, and language. Some forms of cognitive impairment affect other elements of a person’s personality, while leaving the elements mentioned above, relatively intact. It may be less apparent that the person’s decision making is impaired and careful assessment will be required to ascertain whether the impairment amounts to a lack of capacity. Critical care / a vital act means care that is needed to save someone’s life or prevent a serious deterioration of their condition. The decision maker is the person who is responsible for the outcome of the care and/or treatment for the patient/service user.


Deprivation of liberty is to be under continuous supervision and control and not free to leave. The Deprivation of Liberty Safeguards are a legal procedure that authorises detention of a person in a hospital or care home and protects the person’s human rights. A Deputy is a person appointed by the Court of Protection to manage the affairs of a person who lacks mental capacity to make decisions about such matters. An Independent Mental Capacity Advocate (IMCA) is a qualified advocate who is appointed to represent the views of a person who lacks capacity in the decision making process. A Lasting Power of Attorney (LPA) transfers decision making authority from the donor to the attorney. It can be for either or both welfare and finance. Mental capacity is the ability of an individual to make decisions about specific issues in their life. It is also sometimes referred to as ‘competence’. Capacity is not an absolute concept: the level of understanding required will increase with the complexity of the decision and capacity can vary over time. Restraint is the use, or threatened use of force, to make someone do something, or prevent them from doing something, against their wish, or to restrict their movement, whether they resist or not.

4 Scope This guidance applies to all staff in the Isle of Wight NHS Trust who have face-to-face contact with patients or service users who may have impaired capacity.

5 Purpose 5.1 Overview This policy provides a framework for managing decision making for patients with cognitive impairments. It sets out how patients should be supported to make decisions for themselves, how to identify patients who are unable to make decisions for themselves and how to make decisions for those patients. 5.2 Principles All staff who may come into contact with service users who have cognitive impairments must comply with these guidelines and in particular be aware of and follow the statutory principles of the MCA (Section 1):

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

2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.

3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.

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 his best interests.


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.

5.3 Protection from liability This policy sets out how healthcare staff are protected from liability when acting in a patient’s best interests without the patient’s consent, including when using restraint. 5.4 Deprivation of liberty When restraint of a patient involves continuous supervision and control and the patient is not free to leave (deprivation of liberty) healthcare staff must apply the Deprivation of Liberty Safeguards.

6 Roles and Responsibilities All healthcare staff must

undertake mandatory MCA training;

do anything they can to enable a patient with cognitive impairment to make decisions for themselves.

follow the statutory principles of the MCA and the guidance in the Code of Practice when in contact with patients with impaired capacity;

assess patients’ mental capacity when there is reason to doubt the presumption of capacity;

record evidence to support a conclusion of a lack of capacity;

follow the best interests checklist when making decisions on behalf of patients who lack capacity;

6.1 Ward sisters and senior nurses on duty in inpatient wards must

ensure that mental capacity and DoLS screening is undertaken for all inpatients

ensure that the need for an urgent DoLS authorisation is considered and a request for a standard DoLS authorisation is made for every patient who lacks capacity to consent to admission and treatment and who is deprived of his/her liberty

7 Policy detail/Course of Action 7.1 The Statutory Principles The 5 statutory principles must be followed by all persons providing care or treatment to individuals who lack mental capacity. These principles represent ‘best practice’ and reflect a ‘person-centred approach’ to supporting the two over-arching aims of the MCA: empowerment and protection.

7.1.1 Presumption of capacity:

An adult has the right to make their own decisions and must be assumed to have capacity to make a particular decision unless it is established that he or she lacks capacity to do so.


A person wanting to overturn the presumption of mental capacity must provide evidence that the individual lacks capacity to make the decision in question at the time it needs to be made.

7.1.2 Maximising decision-making capacity:

An individual is not to be treated as unable to make a decision unless all practicable steps to assist and support him/her to do so have been taken without success.

Supported decision making may include different means of communication or providing information in an accessible format.

7.1.3 The right to make unwise decisions:

Individuals have the right to make “unwise” or eccentric decisions; this does not necessarily indicate that the person lacks the capacity to make that decision. For many of us, being willing to take risks is an important part of living a full life.

When someone repeatedly makes bad decisions and does not appear to learn from the consequences this may indicate that their capacity should be reassessed.

7.1.4 Best interests:

Any act undertaken or decision made, under the Mental Capacity Act for, or on behalf of an individual who lacks capacity must be done or made in his/her best interests.

The Act provides a statutory “Best Interests Checklist” (see section 7.10.3), which needs to be followed as the framework for decision-making.

7.1.5 Less restrictive alternative:

Decisions or actions taken for people who lack capacity should be the options which least restrict their basic rights and freedoms, whilst being consistent with achieving the required outcomes. Before a final decision is reached, all relevant options should be considered.

7.2 Supporting Decision Making

7.2.1 The Act requires that all practicable steps are taken to help someone make their own decision, before they can be regarded as unable to make a decision.

7.2.2 All information relevant to the decision must be explained to the person and a

balance must be struck between giving sufficient information to enable the person to make a decision and giving too much information or too great detail which could be confusing.

7.2.3 Careful consideration must be given to identify the most effective method of

communication to help the person to understand the nature of the decision and the choices available:

Simple language should be used, avoiding jargon. Use of pictures or objects could be helpful.

Family, carers and others who know the person well, can advise on the most effective methods of communication with the person.

The presence of relatives, friends or other people who know the person, may assist communication. If this is in the person’s best interests it would not be in breach of confidentiality.

Communication aids such as an interpreter or professional with specific skills (e.g. Speech and Language Therapist) may be necessary.


Most people find it easier to make decisions when they are in an environment where they feel more at ease. Consider the most appropriate location for the discussion. A familiar place is often the most suitable, if practicable.

Consider the timing of the decision, as some people’s functioning may vary between different times of the day, or may be affected by particular medication.

The person may benefit from having the support of another person, to provide support in their decision-making .

Cultural and ethical issues should also be addressed throughout the decision-making period.

7.3 Who can make decisions?

7.3.1 Every adult over 16 is entitled to make decisions for him/herself, unless it has been established that s/he lacks the capacity to make the required decision at the time it needs to be made (Principles 1-3).

7.3.2 A range of people may act as the decision maker on behalf of an individual who

lacks the capacity to decide, depending on the type of decision that needs to be made.

For social care decisions, the decision maker may be a care manager or a staff member in day services or a care home.

For medical treatment issues, a doctor or nurse will be the decision maker.

For more minor decisions, a formal or informal carer may assist the individual to make a decision.

7.3.3 The decision maker will normally be the person who is responsible for the

outcome of the decision and must follow the guidance in the Code of Practice. 7.4 Lasting powers of attorney

7.4.1 Adults over the age of 18 years can authorise another adult over the age of 18 years to make decisions on their behalf in the event of a loss of capacity. Lasting powers of attorney can be made for financial and / or for health and welfare matters.

7.4.2 The appointed attorney will have authority to make a decision on behalf of the

donor, if the donor lacks capacity to make the decision, including consenting to medical treatment.

7.4.3 Professionals must ask to see evidence of a power of attorney, to check that the

power has been registered and that the relevant decision falls within the scope of the power. A copy of the LPA should be taken and forwarded to the Trust litigation department for recording on the patient’s record.

7.4.4 Powers of attorney must act in the donor’s best interests and if professionals have

concerns about an attorney’s actions, the matter can be referred to the Court of Protection.

7.5 Court appointed Deputies

7.5.1 When a person has lost capacity without making a power of attorney the Court of Protection can appoint a deputy to act on behalf of the person. This is normally only done for financial matters, but on rare occasions a welfare deputy may be


appointed. Professionals must ask to see evidence of the appointment and scope of authority before acting on the decision of a deputy.

7.5.2 Deputies must act in the donor’s best interests and if professionals have concerns

about an attorney’s actions, the matter can be referred to the Court of Protection. Table 1: Identifying the Decision Maker

Decision level Who should be involved in the

assessment & decision making process?

Recording

Simple e.g. day to day decisions about what to wear, what to eat, where to go during the day

Decision maker – direct carer whether formal (e.g. domiciliary or residential care staff member, support worker,) or informal (family/friend)

With formal relationships, the person’s care plan should be completed to show how the decision is made.

Significant E.g. longer term decisions involving care plans, arranging and reviewing packages of care.

Decision maker - allocated worker (e.g. care manager, nurse, OT, GP, care co-ordinator) who is managing the care. The decision maker must consult with relevant others (e.g. other involved professionals and family/friends)

Evidence that the person lacks capacity Who was consulted in making the decision? Factors considered in making the best interests decision.

Complex, high risk or contentious e.g. decisions about long term accommodation, medical treatment, situations where risk levels are high, adult protection, cases where there are disagreements between those involved.

Decision maker – allocated worker e.g. care manager, nurse, doctor) using a multi-disciplinary approach and consulting relevant others family/friends, and possibly an advocate. A team or home manager may be appropriate to chair a planning meeting if required. The Adult Protection framework should be used where relevant.

Evidence that the person lacks capacity Who was consulted in making the decision? Factors considered in making the best interests decision. Additional reports/second opinions may also be required.

7.6 Advance Decisions to Refuse Treatment

7.6.1 Adults over the age of 18 years who have capacity to make the decision can make an advance decision to refuse medical treatment at any time in the future when they have lost capacity to make that decision.

7.6.2 Advance decisions only apply to the refusal of medical treatment and do not cover

basic care (warmth, food and drink by mouth, shelter, being kept clean etc.) 7.6.3 Advance decisions to refuse life-sustaining treatment must be made in writing,

signed and witnessed. There are no other requirements regarding format etc. 7.6.4 Clinicians must comply with an advance decision unless they have evidence that

the decision is not valid or applicable. 7.6.5 For further details see the Trust’s Advance Decision to Refuse Treatment policy.


7.7 Assessment of Capacity

7.7.1 Assessment of capacity is not just about the individuals cognitive functioning. It also involves consideration of factors relevant to the decision. Therefore the assessment of capacity will normally be done by the person most closely involved and every professional working in health and social care will at some times need to do so.

7.7.2 For most day-to-day decisions the carer most directly involved with the person

needing the care will be best placed to assess the person’s capacity to make the decision at the time it needs to be made.

7.7.3 For more complex assessments professionals with specific training and

experience in assessing capacity may be involved. The following factors may indicate the need for involvement of a more experienced professional:

Decisions with significant or long term consequences

Where the person concerned disputes a finding of incapacity

Where there is disagreement between family members, carers and/or professionals as to the person’s capacity

Where the person concerned is expressing different views to different people, perhaps through trying to please each or tell them what s/he thinks they want to hear

Where the person’s capacity to make a particular decision may be subject to challenge, either at the time the decision is made or in the future

Where there may be legal consequences of a finding of capacity

The person concerned is repeatedly making decisions that put him/her at risk or that result in preventable suffering or damage

7.7.4 In circumstances such as making a Lasting Power of Attorney or a will the solicitor

involved will need to decide whether or not the person has sufficient capacity to make the decision. They may ask for an assessment from a doctor and a certificate to be provided.

7.7.5 When consent for medical treatment or examination is required, the doctor

proposing the treatment should decide whether the patient has the capacity to consent or refuse the treatment.

7.7.6 For care planning issues, such as decisions whether or not to move into

residential care, assessments should be made by the social worker or care manager involved.

7.8 The Test of Capacity

7.8.1 MCA Section 2: ‘For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.’

7.8.2 Mental Capacity is decision and time specific: a person may have capacity to

make some decisions, but not have capacity in relation to more complex issues, or have capacity at some times and not others.


7.8.3 Before assessing a person’s capacity the decision that needs to be made must be clearly formulated, to ensure that the person is given the information that is relevant to that decision and that his/her capacity is assessed in relation to the specific decision.

7.8.4 If a person’s mental state is changeable, capacity should be assessed at a time

when s/he is most likely to have capacity. 7.8.5 There are three elements to the test for capacity:

1. Does the person have an impairment of, or disturbance in the functioning of, the mind or brain (cognitive impairment)?

This impairment can be temporary or permanent and can result from a number of conditions such as:

dementia

mental illness

learning disabilities

brain injuries including stroke

physical or medical conditions such as infection causing delirium

the effect of alcohol, prescribed and illegal drugs 2. Is s/he unable to make a decision? A person will be unable to make a decision if s/he is unable to do any one of the following:

understand the information relevant to the decision, in particular the consequences

remember that information long enough to make a decision

use or weigh that information as part of the process of making a decision, or

communicate that decision, by talking, sign language or any other means. 3. Is the inability caused by the cognitive impairment?

For the MCA to apply the inability to make a decision must be caused by the mental impairment. A person may have a mental impairment, but be unable to make a decision for other reasons, for example, because s/he feels overwhelmed by the gravity of the situation or because others are exercising undue influence. In such cases the Act does not apply and a decision can be made under common law or by the High Court under its inherent jurisdiction.

7.8.6 In assessing a person’s ability to make a decision it is important to ensure that all

available help has been given to enable the person to make a decision before concluding that s/he lacks capacity – see paragraph 7.1.2 (Principle 2).

7.8.7 Some individuals, for example those in the early stages of dementia, are able to

retain information for a limited period only. This does not prevent him or her from being regarded as able to make the decision, even though they may forget having made a decision later. Staff should consider ways in which they can be reminded of decisions they have made.

7.9 Recording assessments of capacity

7.9.1 The MCA provides protection from liability for acts which otherwise could result in a charge of assault or interference, provided the person who is doing the act has


1. assessed the mental capacity of the relevant person 2. has a reasonable belief s/he lacks capacity 3. acts in his/her best interests. Having a ‘reasonable belief’ that someone lacks capacity requires the decision maker to be able to demonstrate, on the balance of probabilities, why the person is unable to make a decision. 7.9.2 The level of detail to be recorded will depend on the type and seriousness of

decision and the role of the decision maker:

MCA Code of Practice: 4.60 Assessments of capacity to take day-to-day decisions or consent to care

require no formal assessment procedures or recorded documentation. 4.61 It is good practice for professionals to carry out a proper assessment of a

person’s capacity to make particular decisions and to record the findings in the relevant professional records:

A doctor or healthcare professional proposing treatment should carry out an assessment of the person’s capacity to consent (with a multi-disciplinary team, if appropriate) and record it in the patient’s clinical notes.

An assessment of a person’s capacity to consent or agree to the provision of services will be part of the care planning processes for health and social care needs, and should be recorded in the relevant documentation.

See Appendix A for further guidance and format for recording an assessment of capacity.


7.10 Making a Best Interests Decision

7.10.1 Principle 4 of the MCA requires that any action done or decision made on behalf of a person who lacks capacity, must be taken in that person’s best interests.

7.10.2 If an assessment of mental capacity establishes that an individual is not capable

of making a particular decision, the decision maker must establish what action or decision would be in that person’s best interests.

7.10.3 The ‘Best Interests’ Checklist for decision makers set out in section 4 of the Act

can be summarised as follows:

Avoid discrimination: Any decision about an individual’s best interests must be based on assessment, consultation and the establishment of information about them and their circumstances, not on assumptions about the person’s age, appearance, condition or behaviour, although all of these will be relevant considerations.

Concerns about an individual’s capacity to make a decision

Assume capacity until proved otherwise

Specify the decision to be made

Take all practical steps to support the person to make a decision for themselves. Document information given and steps taken to support.

If concerns about capacity remain, check if there is a deputy, a lasting POA

or a valid and applicable advance decision?

If no the decision maker undertakes capacity assessment and record evidence and outcome.

If yes PoA or Deputy is the decision maker or apply the advance decision.

Person has capacity: their decision stands, even if deemed ‘unwise’

If there is a disagreement about capacity discuss with colleagues and consider steps to resolve.

Person lacks capacity: make a best ‘interests decision’

Figure 1: Assessment of

Capacity Flowchart


Encourage participation: do whatever is possible to support and encourage the person to take part in making the decision.

Consider all relevant circumstances relating to the decision: the decision that needs to be made, why it needs to be made, what the options are, the outcomes, risks and benefits of each option, the impact it will have on the person etc.

Consider the person’s views: the person’s past and present wishes, values and beliefs and how these would influence his/her decision, if s/he were able to make it.

Consult others including anyone named by the person, anyone involved in their care or interested in their welfare, including family and friends and anyone with a Lasting Power of Attorney or Deputyship.

Assess whether the person may regain capacity: can a decision be delayed to enable the person to make their own decision?

Consider the need for restraint: do best interests justify the use of force to overcome resistance?

7.10.4 There are additional considerations if decisions involve the provision or

withdrawal of life sustaining treatment. In these circumstances the Act clarifies that the decision maker must not be motivated by a desire to bring about the individual’s death. In practice this means the decision must not be based on the clinician’s feelings about the person’s quality of life before treatment is given.

7.10.5 Consultation: The decision-maker needs to undertake consultation that is

“practical and appropriate” to the particular decision being considered. The more significant and complex the decision, the more formal and wide ranging the consultation process should be.

People with a right to be included in a best interest’s consultation include:

Anyone named by the individual lacking capacity as someone to be consulted

Anyone engaged in caring for the individual or interested in their welfare

Any attorney appointed under a Lasting Power of Attorney

Any deputy appointed by the Court of Protection.

An IMCA if the decision is about serious medical treatment or a change of residence and the individual lacking capacity is unbefriended. (see section 7.18)

7.10.6 The best interest’s decision making process and consultation, including any

conflicting opinions should be recorded in the person’s health or care record or on the best interest’s proforma (Appendix B).

MCA Code of Practice: 5.15 Any staff involved in the care of a person who lacks capacity should make

sure a record is kept of the process of working out the best interests of that person for each relevant decision, setting out:

how the decision about the person’s best interests was reached

what the reasons for reaching the decision were

who was consulted to help work out best interests, and

what particular factors were taken into account?

This record should remain on the person’s file.


For major decisions based on the best interests of a person who lacks capacity, it may also be useful for family and other carers to keep a similar kind of record.

7.10.7 For decisions that are very complex, that have far reaching or serious

consequences, or where there are disagreements a best interests balance sheet must be completed (see Appendix C).

7.10.8 Reaching a decision: In many instances consultation will establish a consensus

view about what is in the individual’s best interests. Where there is disagreement it may help to arrange a best interest’s decision making meeting, to ensure that everyone’s views can be heard and shared and the options, risks and benefits are set out clearly. If all reasonable efforts fail to achieve agreement it is the decision maker who will decide on best interests. Any remaining disagreements may have to be referred to the Court of Protection.

7.10.9 Taking resources into account: There is a close link between the concept of

someone’s “best interests” and the requirement that a care package/placement should meet the person’s assessed needs. Any options that do not meet the individual’s assessed needs should be discounted as these can clearly be shown not to be in their best interests. However, only options that are actually available can be considered and case law confirms that where a number of different care packages/options will meet assessed needs, the cost of different options may be taken into account as a part of the decision making process. Therefore, the more expensive option is not necessarily in the person’s best interests.


Person assessed as lacking capacity in relation to the decision.

If no resolution can be reached and risks remain high, seek guidance from legal services and consider an application to the Court of Protection.

No: arrange best interests meeting to resolve differences – Agreement reached?

If Yes: Delay decision to enable the person to decide for themselves – unless an urgent decision is required.

Is the person likely to regain capacity?

If No: Encourage the person to participate – establish his/her current views.

Consider any known past wishes, values and beliefs and how they would influence the person’s decision if s/he were able to make a decision for her/himself.

Consult all relevant others and record their views – if the person is unbefriended, does an IMCA need to be instructed?

Consider all relevant circumstances: options, choices, risks, outcomes.

Decision Maker weighs information and determines best interests. Consensus reached?

Yes: Decision implemented

Yes: If the decision concerns serious medical treatment, change of accommodation, safeguarding or deprivation of liberty - Instruct an IMCA

Figure 2: Best Interests Flowchart


7.11 Protection from Liability for Acts in Connection with Care and Treatment

7.11.1 Protection from liability: any person making a decision or carrying out an act which could give rise to charges of assault or interference with the person, will be protected from liability under Section 5 of the Mental Capacity Act providing s/he has:

assessed whether the person has mental capacity in relation to the decision or action;

a reasonable belief that the person lacks capacity, and

acted in the person’s best interests. 7.11.2 Having a ‘reasonable belief’ that someone lacks capacity requires the decision

maker to be able to provide evidence of that lack of capacity, as set out in sections 2 and 3 of the Act (see 7.8 above). An unwise decision is not evidence the person lacks capacity (principle 3).

However, see Sections 7.13 of this policy in relation to additional requirements should an action limit an individual’s liberty or involve restraint. 7.12 Care and Treatment of Mental Disorder

7.12.1 The Mental Health Act 1983 (MHA) and Mental Capacity Act 2005 (MCA) have different purposes. The MCA has a broad scope and provides a legal framework for decision-making which applies in many situations where adults are unable to make decisions and act for themselves. The MHA provides a much narrower legal authority for the admission to hospital and treatment (where appropriate without consent) of people with a mental disorder because of the risk to their health, to their safety or the safety of others.

7.12.2 Patients detained under the MHA can be treated without consent, without

reference to mental capacity and such is specifically excluded from the scope of the MCA. The procedural safeguards in Part 4 of the MHA must be followed when treating patients who are detained under the MHA.

7.12.3 The Mental Health Act 1983 only deals with treatment “for mental disorder”.

However, a person detained under the Mental Health Act may lack capacity in relation to some other form of medical treatment or some other issues. For example, someone may be detained for treatment for a mental disorder but also require surgery. In these cases, the Mental Capacity Act will apply to decisions about surgery.

7.12.4 In some limited instances a patient may be detained for treatment of mental

disorder in hospital under the MCA/DoLS: the patient must lack mental capacity and not be objecting to the admission and/or all or part of the treatment. Whether a patient is ‘objecting’ must be considered in the round, including the patient’s behaviour, wishes, beliefs and values, both past and present, not just on verbally expressed objections. If in doubt, clinicians should assume the person is objecting (MHA Code of Practice 13.51/14.20).

7.12.5 Chapters 13&14 of the Code of Practice to the MHA (DH, 2015) contain detailed

guidance for practitioners on the appropriate use of MHA and MCA, in relation to individuals who have a mental disorder (including the use of guardianship) and


are assessed to lack capacity. Practitioners are recommended to refer to the Code for guidance on individual cases.

Table 2: Mental Health Act or Mental Capacity Act? MENTAL CAPACITY ACT 2005 MENTAL HEALTH ACT 1983

AGE Must be over 16 years old For LPA, Advance Decisions and DoLS, over 18 years old

No age limits (except for Guardianship: over 16 years old)

CAPACITY Applies only to those who lack capacity as defined by the Standard Test – although can plan ahead for loss of capacity.

Does not require lack of capacity.

BEST INTERESTS

Decisions must be made in the best interests of the incapacitated person. Protection of others is not part of best interests

Detention in hospital on the grounds of the patient’s health, safety or for the protection of others.

MEDICAL TREATMENT

Treatment decisions made in patient’s best interests (except for excluded decisions).

Treatment for mental disorder only – governed by Part IV of the Act.

RESTRICTION OF LIBERTY

Allows care and treatment including restraint when necessary to protect the person from harm, proportionate and not a deprivation of liberty. Deprivation of Liberty can be authorised using DoLS.

Broad range of compulsory powers to detain and treat without consent and in the face of resistance. Least restriction principle must be applied.

ADVANCE DECISIONS

Advance decisions that are “valid and applicable” are legally binding.

Part IV powers allow advance decisions to be overridden (NB except ECT).

POWERS OF ATTORNEY

POA can make proxy decisions. POA have no authority over treatment of detained patients

SAFEGUARDS No formal safeguards. Requires consultation with relatives, carers and IMCAs. DoLS has some safeguards (Personal Representative). Can apply to Court of Protection in disputed cases.

Formal independent appeals procedures (MHRT & Hospital Managers). Second Opinion Appointed Doctors.

7.13 The Use of Restraint

7.13.1 Objections to particular actions can take many different forms, from physical resistance to verbal objections, passive resistance and other non-verbal responses.

7.13.2 In these circumstances, skilled and sensitive responses from the member of staff

may enable the task to be completed. Clear and ongoing communication with the service user is likely to help enable cooperation.

7.13.3 If objections / resistance persist, consideration must always be given to the likely

effect of the failure to provide the planned care or treatment, to the person, their environment and to those around them. This will help determine the urgency of the decision-making needed regarding implementation of the care plan.

7.13.4 The effect of the failure to provide the particular intervention will vary with the

nature of the care or treatment. In some circumstances (e.g. cleaning or washing), the effect will be gradual and/or restricted to reducing the service user’s quality of life. In other situations the refusal will have a faster and more drastic effect (such as declining food, drink or medication).


7.13.5 It is imperative that in circumstances where an incapacitated service user is refusing or resisting care or treatment, and specific risks to their health or welfare are identified, discussions are held with senior staff in the agency to consider how to ensure the appropriate care is delivered. If necessary, these discussions should include the wider care team.

7.13.6 The protection from liability under section 5 (see 7.11) extends to the use of

restraint, provided the following conditions are met:

the act is in the person’s best interests;

restraint is necessary to prevent harm to the person being restrained; and

the force used is proportionate to the likelihood and seriousness of the harm being prevented.

MCA 2005, Section 6 Ultimately a balance has to be struck between a number of competing rights and duties, such as the person’s civil liberties and staff’s duty of care. The key factor in striking this balance will often be the protection and enhancement of the vulnerable person’s dignity. The following articles of the European Convention for Human Rights will be particularly relevant: Articles 2 (Right to life), 3 (Freedom from degrading treatment) 5 (Right to liberty) and 8 (Right to private and family life). 7.13.7 The Act defines restraint as the

use of force or threat to use force, to make someone do something they are resisting, or

restriction of a person’s freedom of movement, whether they are resisting or not, including the use of sedating medication.

Acts of restraint can range from prompts and gentle verbal persuasion to physical force

(hands-on and / or mechanical restraint) and medication (sedation).

7.14 Restriction of Movement and Deprivation of Liberty 7.14.1 Section 6 of the MCA permits restriction of movement that does not amount to a

deprivation of liberty, which requires a formal legal authorisation process (Mental Health Act, MCA Deprivation of Liberty Safeguards or Court Order).

7.14.2 The distinction between a permissible restriction of movement (restraint) and a

deprivation of liberty which needs additional authorisation is a question of degree and intensity, not nature or substance, and has to be determined on the individual circumstances of each case. In March 2014 the UK Supreme Court set out an ‘acid test’: a person is deprived of his/her liberty if s/he “is under continuous supervision and control and not free to leave”.

7.14.3 patients who are receiving critical care (care without which they would die or

suffer a severe deterioration in their condition) are not deprived of liberty and a DoLS Authorisation is not required provided they are being treated in the same way as a patient who has given consent. A DoLS Authorisation will be required if:

the patient or anyone on their behalf is objecting to admission and/or treatment

the patient is attempting to leave or subject to specific restrictions to prevent them leaving

the patient is being sedated to manage their behaviour


7.15 Avoiding Deprivation of Liberty

7.15.1 Principle 5 of the MCA requires that any best interests’ intervention should involve no more interference with the person’s freedoms than is necessary. The following elements of good practice will assist in avoiding ‘deprivation of liberty’:

Ensuring that decisions are taken, reviewed and recorded in a structured way, including a proper assessment of the person’s capacity to consent to the proposed care;

appropriate and documented involvement of family, friends, carers and others interested in their welfare;

ensuring that alternatives to admission to hospital or residential care are considered;

ensuring that any restrictions placed on the patient while in hospital or residential care are kept to the minimum necessary – meeting needs effectively and enhancing opportunities for choice and activity will often reduce the need for restraint;

ensuring appropriate information is given to patients themselves and to family, friends and carers, including information about the purpose and reasons for the patient’s admission, proposals to review the care plan and the outcome of such reviews, and the way in which they can challenge decisions (e.g. through the relevant complaints procedure);

Ensuring both the assessment of capacity and the care plan are kept under regular review. It may well be helpful to include an independent element in the review. Such a second opinion will be particularly important where family members, carers or friends do not agree with the authority’s decisions.

7.16 Deprivation of Liberty Safeguards 7.16.1 Whenever a hospital in-patient is identified to be deprived of his/her liberty, a

request for an authorisation under the Deprivation of Liberty safeguards must be made, unless there is already a formal authority to detain in place (e.g. under the Mental Health Act or Court Order). The request will normally be made by the ward sister.

7.16.2 If the need for deprivation of liberty is immediate the person in charge of care or

treatment will complete an Urgent Authorisation, valid for seven days at the same time as requesting a Standard Authorisation. A request for a Standard Authorisation is made by completing pages 1-5 of DoLS Form 1 and an Urgent Authorisation is made on page 6 of Form 1.

http://intranet.iow.nhs.uk/Deprivation-of-Liberty-Safeguards 7.16.3 All relevant information must be provided:

Page 2, top half o the reason why the person has been admitted to hospital, o the care and/or treatment being provided o the likely / expected progress and duration of admission

Page 2, lower half: o the type, duration, manner and effect of restrictions imposed on the person

http://intranet.iow.nhs.uk/Deprivation-of-Liberty-Safeguards


Page 3: Contact details for any involved relatives, friends and cares, including name, address and telephone numbers.

Page 5: Demographic details 7.16.4 An urgent authorisation can only be given if all ten criteria set out on page 6 of

form 1 apply. Each box must be ticked to confirm that the relevant that the following apply:

1. The person is aged 18 or over 2. The person is suffering from a mental disorder 3. The person is being accommodated here for the purpose of being given care

or treatment. Please describe further on page 2 4. The person lacks capacity to make their own decision about whether to be

accommodated here for care or treatment 5. The person has not, as far as the Managing Authority is aware, made a valid

Advance Decision that prevents them from being given any proposed treatment.

6. Accommodating the person here, and giving them the proposed care or treatment, does not, as far as the Managing Authority is aware, conflict with a valid decision made by a donee of a Lasting Power of Attorney or Personal Welfare Deputy appointed by the Court of Protection under the Mental Capacity Act 2005.

7. It is in the person’s best interests to be accommodated here to receive care or treatment, even though they will be deprived of liberty.

8. Depriving the person of liberty is necessary to prevent harm to them, and a proportionate response to the harm they are likely to suffer otherwise.

9. The person concerned is not, as far as the Managing Authority is aware, subject to an application or order under the Mental Health Act 1983 or, if they are, that order or application does not prevent an Urgent Authorisation being given.

10. The need for the person to be deprived of liberty here is so urgent that it is appropriate for that deprivation to begin immediately before the request for the Standard Authorisation is made or has been determined.

Notes: 2. Confirmation of ‘mental disorder’ does not require a medical diagnosis

and could be based on symptoms suggestive of a mental disorder, such as confusion, impaired communication, behaviour etc.

5, 6, and 9: Confirmation of these points does not require certainty: it is sufficient to not know whether any of these apply.

7.16.5 An urgent Authorisation is valid for a maximum of seven days, with the day it is

completed counting as day one and it will expire on the preceding day of the following week. An extension of up to seven days can be given by the Supervisory Body

7.15.6 Completed DoLS request must be saved to the ward network drive and be

emailed to the Supervisory Body at [email protected] 7.16.7 Once a DoLS Authorisation has been requested the DoLS Office must be

notified of any changes in the person’s circumstances, in particular if an authorisation is no longer needed, the person is discharged or dies.

mailto:[email protected]


7.17 Criminal Offence

7.17.1 Under the MCA it is a criminal offence to ill-treat or wilfully neglect a person who lacks capacity. The offence may apply to:

anyone caring for a person who lacks capacity – this includes family carers, healthcare and social care staff;

an attorney appointed under an LPA or an EPA;

a deputy appointed for the person by the court. 7.17.2 To be guilty of ill-treatment the ill-treatment must have been deliberate or

reckless and the perpetrator must have known, or should have known, that the person lacked capacity. Neglect usually means the person deliberately failed to carry out an act s/he had a duty to do.

7.17.3 Penalties range from a fine to up to 5 years imprisonment.

7.18 Independent Mental Capacity Advocates (IMCAs)

7.18.1 The purpose of the IMCA service is to support particularly vulnerable people who lack the capacity to make certain far-reaching decisions. It is available to those people who have no family or friends whom it would be appropriate to consult about those decisions.

7.18.2 In cases where a person who lacks capacity does not have friends or relatives to

consult, decision-makers in local authorities and the NHS Trusts (for example social workers and doctors) will have a duty to consult an IMCA where the decision is about:

serious medical treatment;

a long term change in accommodation arranged by the NHS or a local authority

a care plan under Safeguarding Vulnerable Adult procedures;

a proposed deprivation of liberty under DoLS. 7.18.3 Serious medical treatment is defined as treatment that involves giving new

treatment, stopping treatment that has already been started, or withholding treatment that could be offered in circumstances where:

there is a fine balance between the likely benefits and the burdens to the patient and the risks involved; or

a decision between a choice of treatments is finely balanced; or

what is proposed is likely to have serious consequences for the patient. If the treatment is urgent, the NHS body is not required to instruct an IMCA. 7.18.4 A long-term change of accommodation is defined as being for more than 28 days

in hospital or more than 8 weeks in a care home. If the arrangements need to be made as a matter of urgency the move can proceed before an IMCA is instructed. However, if the person is then expected to be more than 28 days in hospital or 8 weeks in a care home or its equivalent then an IMCA must be instructed as soon as possible after the move.


7.18.5 When protective measures are being put in place to protect a vulnerable adult from abuse an IMCA should be instructed even if there are friends or family members to consult. An IMCA must be instructed in the following situations:

There is a reasonable belief that it is inappropriate to consult family or friends because they may not have the persons best interests at heart;

The proposed protection plan involves a serious life-changing decision or a serious exposure to risk which should not be agreed without consulting an independent advocate;

The decision that the responsible body needs to make involves a potential conflict of interests between the responsible body and the vulnerable person and/or their family.

7.18.6 An IMCA may be instructed for reviews of residential care and should always be

instructed in the following situations:

In a review of accommodation that was arranged by the LA or NHS if the person has already been in that accommodation for 12 weeks or longer, and

there are disagreements between the care provider and purchaser as to the appropriate care plan;

a major change in the care plan which may affect quality of life within the accommodation is proposed;

there are clear indications that the person whose accommodation is being reviewed is unsettled or unhappy in their accommodation.

7.18.7 Once an IMCA has been instructed and until a best interests decision is taken

the decision maker must follow the Act’s five principles in relation to that decision making process. NHS bodies and LAs must take into account any information given, or submissions made, by the IMCA. Any decision taken before proceeding with serious medical treatment or a move must also be made in the person’s ‘best interests’.

7.18.8 IMCAs have the following powers to enable them to carry out their role:

to see the person concerned in private

to examine and take copies of any records that are relevant to the decision. They must apply to see records using the form in Appendix D. 7.18.9 On the Isle of Wight the IMCA service is provided by Southern Advocacy

Services, who can be contacted on Telephone number 01983 559299 or at www.southernadvocacyservices.co.uk

8 Consultation This policy will be disseminated via e-bulletin for comment and amendment prior to its final ratification at the Policy Management Group.

9 Training 9.1 This Mental Capacity Act Policy has a mandatory training requirement which is

detailed in the Trusts mandatory training matrix and is reviewed on a yearly basis. 9.2 This policy will be cascaded via senior staff / team leaders in all areas and

highlighted in all MCA Training.

http://www.southernadvocacyservices.co.uk/


9.3 MCA training is available to all staff free of charge at two levels:

e-learning modules on Training Tracker (MCA and DoLS)

MCA Overview and DoLS: half day session for all staff. Training can also be delivered to individual teams and departments – contact the MHA/MCA Lead.

10 Monitoring Compliance and Effectiveness Implementation of the MCA and DoLS is subject to a number of key performance indicators monitored quarterly and reported to the Clinical Commissioning Group:

Compliance with mandatory training requirement

Quarterly audit of a sample of patients in relation to requests for DoLS Authorisations

Periodic staff survey of MCA knowledge and training needs.

Audit of medical records in relation to MCA and DoLS.

11 Links to other Organisational Documents Advance Decisions to Refuse Treatment Policy Consent to Examination or Treatment Policy Health and Care Records Policy

12 References Department of Constitutional Affairs (2007) Mental Capacity Act 2005 Code of Practice Department of Constitutional Affairs (2009) Mental Capacity Act 2005 Deprivation of Liberty Safeguards Code of Practice Department of health (2015) Code of Practice to the Mental Health Act Jones, R. (2010) Mental Capacity Act Manual. (6th Edition) Letts, P. (ed) (2010) Assessment of Capacity – A Practical Guide for Doctors and Lawyers. British Medical Association and the Law Society Office of the Public Guardian (2009) Mental Capacity Act Booklets: OPG601 Making Decisions …..about your health, welfare or finances. Who decides

when you can’t? OPG602 Making Decisions – A guide for family, friends and other unpaid carers. OPG603 Making Decisions – A guide for people who work in health and social

care. OPG604 Making Decisions – A guide for advice workers OPG605 Making Decisions – An easy read guide OPG606 Making Decisions – The IMCA service OPG607 Deprivation of Liberty Safeguards – A guide for primary care trusts and

local authorities OPG608 Deprivation of Liberty safeguards – A guide for hospitals and care homes

http://intranet.iow.nhs.uk/Portals/0/Assets/Mental_Health/Public/MCA_and_DoLS/MCA%20Code%20of%20Practice.pdf

http://intranet.iow.nhs.uk/Portals/0/Assets/Mental_Health/Public/MCA_and_DoLS/DoLS%20Code%20of%20Practice.pdf

http://intranet.iow.nhs.uk/Portals/0/Assets/Mental_Health/Public/MCA_and_DoLS/DoLS%20Code%20of%20Practice.pdf

https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/435512/MHA_Code_of_Practice.PDF

https://www.gov.uk/government/collections/mental-capacity-act-making-decisions


OPG609 Deprivation of Liberty Safeguards – A guide for relevant person’s representatives

http://www.scie.org.uk/mca/

https://www.gov.uk/government/organisations/office-of-the-public-guardian NICE Guideline NG108 (2018) Decision-making and Mental Capacity

13 Appendices

Appendix A: Assessment of mental capacity Proforma Appendix B: Best Interests Proforma Appendix C: Best Interests Balance Sheet Appendix D: Equality Impact Assessment

http://www.scie.org.uk/mca/

https://www.gov.uk/government/organisations/office-of-the-public-guardian

https://www.nice.org.uk/guidance/ng108


Appendix A Patient’s name IW number

AFFIX ADDRESSOGRAPH

Assessment of Mental Capacity

To be completed on admission, transfer, and if condition changes.

Mental Capacity is decision and time specific – it should be re-assessed for every significant decision and whenever the patient’s condition changes.

GUIDELINES FOR ASSESSMENT OF CAPACITY Relevant Information includes: the decision that needs to be made, why it needs to be made, the consequences of making or not making the decision, the risks and benefits of each option. Information has to be remembered for long enough to get an overview and to be able use the information. Using the information involves assessing the relative importance of different aspects of the information and balancing pros and cons. Other factors, such as false beliefs, over-valued ideas, distorted perceptions and fears can interfere with this process. Communication can be by whatever means available to the person: spoken, written, non-verbal communication etc. as long as it is clear and un-ambiguous.

1. Specify the decision to be made, including the range of options to be considered

2. Record the nature (Diagnosis or description of symptoms) of the ‘impairment of, or disturbance in the functioning of the mind or brain’.

3. A person will lack capacity if he/she is unable to any one of the following. Record why you believe he/she is able / unable to do the task.

a) Understand the information relevant to the decision – what is the relevant information?:

b) remember the information long enough to make the decision:

c) use the information, weighing it in the balance, to make the decision:

d) communicate his/her decision

4. How is this inability caused by the impairment/disturbance?

5. Outcome:

(name)……………………..……. does / does not have the capacity to make the above decision.

Assessor Name

Signature Date of assessment


Appendix B

Patient’s name IW number

AFFIXADDRESSOGRAPH

Best Interests Decision

To be completed when a patient lacks capacity to consent to treatment. Mental Capacity is decision and time specific – a current assessment that the patient lacks capacity for this decision is required.

GUIDELINES FOR BEST INTERESTS DECISIONS The MCA, Section 4, contains a checklist of factors that must be taken into account when making a best interests decision:

not merely on the basis of the person’s age, appearance, any condition or behaviour

all relevant circumstances: what the person would consider themselves, if they had capacity

whether the person may regain capacity and whether the decision can be delayed until then

the person’s wishes, values and beliefs

the views of all relevant others

for life-sustaining treatment, not motivated by a desire to bring about the person’s death (i.e. not based on preconceptions about the person’s quality of life, before treatment).

For decisions with far-reaching consequences and where there is disagreement between those involved the best Interests Balance Sheet form should be used.

1. Record the decision to be made, including the range of options to be considered.

2. Record details of other persons consulted

3. Record the relevant circumstances (the person’s wishes and views, relevant others’ views, impact of the decision on the person’s health, welfare, safety, comfort, happiness etc., any restraint needed to implement).

4. Record any disagreements

5. Record the option considered to be in the person’s best interests

Assessor Name

Signature Date of assessment


Appendix C

Patient’s name IW number

AFFIXADDRESSOGRAPH

BEST INTERESTS DECISION BALANCE SHEET

To be completed when a patient lacks capacity to consent to treatment and that treatment has far-reaching consequences and/or there is disagreement about the patient’s best interests. Mental Capacity is decision and time specific – a current assessment that the patient lacks capacity for this decision is required.

1. Avoid discrimination

Section 4(1): a decision as to what is in a person's best interests must not be made merely on the basis of the person’s age or appearance or a condition of his, or aspect of his behaviour, which might lead others to make unjustified assumptions about what might be in his best interests.

The important words are ‘merely’ and ‘unjustified assumptions’: a person’s age, appearance, condition and behaviour may or may not be relevant in the decision-making process.

Any conclusions made on the basis of these factors must be justified.

2. All Relevant Circumstances:

Section 4(2): “The person making the determination must consider all relevant circumstances and, in particular take the following steps”

The decision maker must follow the steps set out in Sections 4(3) - 4(7)

In deciding what is and is not relevant the decision maker must include anything he/she is aware of and that it would be reasonable to regard, given the circumstances

3. Might P regain capacity?

Section 4(3): “…whether it is likely that [P] will at some time have capacity and [if so] when ….”

whether it is likely that P will at some point in the future be able to make the relevant decision themselves

whether the decision can be delayed until then

4. Involve P and ascertain his/her views:

Section 4(4): “ .. so far as is reasonably practicable, permit and encourage [P] to participate …”

take all appropriate steps to improve P’s ability to participate as fully as possible in any act done for him/her or decision affecting him/her (Principle 2)

P’s reactions to options will inform the decision making process

decisions made on a co-operative basis with P are more likely to be acceptable to P

Section 4(6) “The decision maker must consider so far as is reasonably ascertainable: (1) the person's past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity), (2) the beliefs and values that

P’s wishes and feelings will always be a significant factor

the weight to be given to P’s wishes and feelings will vary according to the circumstances:

o the degree of P’s incapacity: the nearer the borderline, the more weight is given

o the stronger and more consistent P’s views, the more weight is given

o the impact on P of knowing that his/her wishes are not being given effect to


would be likely to influence his decision if he had capacity, and (3) the other factors that he would be likely to consider if he were able to do so”

o the extent to which P’s feelings are rational, responsible and practical

o the extent to which they can be accommodated within the decision maker’s assessment of what is in P’s best interests

5. The views of others:

Section 4(7) “.. must take into account, if it is practicable and appropriate to consult them, the views of”

anyone named by P to be consulted

anyone engaged in caring for P or interested in P’s welfare

anyone holding a lasting power of attorney or deputyship in respect of P

These people are consultees not decision makers,

the purpose of consultation is to o ascertain information about P’s wishes and

feelings o to inform the decision about P’s best interests

the views of blood relations / next of kin do not have precedence over others – the decision maker must accord weight to everyone’s views appropriate to the nature of the relationship

6. Life-sustaining treatment:

Section 4(5): ”.. must not, in considering whether the treatment is in the best interests of P, be motivated by a desire to bring about his death.”

MCA Code of Practice 5.31: “There will be a limited number of cases where treatment is futile, overly burdensome to the patient or where there is no prospect of recovery. In circumstances such as these, it may be that an assessment of best interests leads to the conclusion that it would be in the best interests of the patient to withdraw or withhold life-sustaining treatment, even if this may result in the person’s death.”

Such decisions must not be based on preconceived ideas about P’s quality of life, before treatment is given.

Making a Best Interests Decision

All these factors must be balanced in the final best interests decision

there is no hierarchy between the factors which have to be borne in mind

the weight to be attached to each one will depend on the individual circumstances of P and the decision to be made

there may be one or more factors which are of ‘magnetic importance’ in influencing the decision

Any restrictions required to implement the best interests decision must be necessary to prevent harm to P and proportionate to the likelihood and seriousness of that harm

Best interests options must be drawn from available options: best interest cannot override the limitations on statutory duties of public bodies

Where there are a number of different options to choose from it may help to draw up a balance sheet for each option.


BEST INTERESTS BALANCE SHEET Name: ID Number:

Decision Maker: Date:

Decision:

Option 1:

Best Interests Checklist

Points in Favour Strength of Evidence

Points Against Strength of Evidence


2. Consider all Relevant Circumstances: what P would take

into account if he/she was making the decision

the impact on P: health, welfare, comfort, pain

3. Might P regain capacity? Could the

decision be delayed?

4. Involve P and ascertain his/her views: Past and present

wishes & feelings

Beliefs and values that would influence his/her decision

Any other factors

5. The views of others: family, friends, any Power of Attorney, anyone named by P, other professionals and carers

6. Life-sustaining treatment: do not

make assumptions about P’s quality of life.

7. Level of restriction involved: What risks are involved What restrictions are necessary


Name: ID Number:

Decision Maker: Date:

Decision:

Option 2:

Best Interests Checklist

Points in Favour Strength of Evidence

Points Against Strength of Evidence


2. Consider all Relevant Circumstances: what P would take

into account if he/she was making the decision

the impact on P: health, welfare, comfort, pain

3. Might P regain capacity? Could the

decision be delayed?

4. Involve P and ascertain his/her views: Past and present

wishes & feelings

Beliefs and values that would influence his/her decision

Any other factors

5. The views of others: family,

friends, any Power of Attorney, anyone named by P, other professionals and carers

6. Life-sustaining treatment: do not

make assumptions about P’s quality of life.

7. Level of restriction involved: What risks are involved What restrictions are necessary

Which options has been decided as being in P’s best interests?

Add further pages if more than 2 options.


Appendix D

Equality Impact Assessment (EIA) Screening Tool

1. To be completed and attached to all procedural/policy documents created within individual

services.

2. Does the document have, or have the potential to deliver differential outcomes or affect in an adverse way any of the groups listed below? If no confirm underneath in relevant section the data and/or research which provides evidence e.g. JSNA, Workforce Profile, Quality Improvement Framework, Commissioning Intentions, etc. If yes please detail underneath in relevant section and provide priority rating and determine if full EIA is required.

Gender

Positive Impact

Negative Impact

Reasons

Men

Women

Race

Asian or Asian British People

Black or Black British People

Chinese people

People of Mixed Race

White people (including Irish people)

People with Physical Disabilities, Learning Disabilities or Mental Health Issues

X

The purpose of the MCA is to empower and protect vulnerable adults who have impaired ability to make decisions for themselves.

Document Title: Mental Capacity Act Policy

Purpose of document

To provides a framework for managing decision making for patients with cognitive impairments. It sets out how patients should be supported to make decisions for themselves, how to identify patients who are unable to make decisions for themselves and how to make decisions for those patients.

Target Audience All Trust staff with patient contact

Person or Committee undertaken the Equality Impact Assessment

Stephen Ward, MHA & MCA Lead


Sexual Orientation

Transgender

Lesbian, Gay men and bisexual

Age

Children

Older People (60+)

Younger People (17 to 25 yrs)

Faith Group

Pregnancy & Maternity

Equal Opportunities and/or improved relations

Notes: Faith groups cover a wide range of groupings, the most common of which are Buddhist, Christian, Hindus, Jews, Muslims and Sikhs. Consider faith categories individually and collectively when considering positive and negative impacts. The categories used in the race section refer to those used in the 2001 Census. Consideration should be given to the specific communities within the broad categories such as Bangladeshi people and the needs of other communities that do not appear as separate categories in the Census, for example, Polish. 3. Level of Impact If you have indicated that there is a negative impact, is that impact:

YES NO

Legal (it is not discriminatory under anti-discriminatory law)

Intended

If the negative impact is possibly discriminatory and not intended and/or of high impact then please complete a thorough assessment after completing the rest of this form. 3.1 Could you minimise or remove any negative impact that is of low significance? Explain how below:

3.2 Could you improve the strategy, function or policy positive impact? Explain how below:

3.3 If there is no evidence that this strategy, function or policy promotes equality of opportunity or improves relations – could it be adapted so it does? How? If not why not?

Scheduled for Full Impact Assessment Date:

Name of persons/group completing the full assessment.

Date Initial Screening completed

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