In relation to a person’s care and treatment, the issue of mental capacity and consent is of central importance from a legal point of view. Care providers should ensure that service users are asked for their consent whenever care or treatment services are proposed or changed, and that there are effective procedures in place to ensure that they can give or withhold consent. Where this is not possible, because they may lack the mental capacity to make an informed decision, then care providers need to comply with the Mental Capacity Act 2005 (“the MCA”), taking into consideration the guidance set out in the Code of Practice that underpins the Act. The Code states that where a service user may lack the mental capacity to give informed consent, they should be properly assessed in line with the requirements of the MCA.
For registered care providers and managers running care homes, the issue of capacity will arise as part of the care planning process. The Code states that “the preparation of a care plan should always include an assessment of the person’s capacity to consent to the actions covered by the care plan and confirm that those actions are agreed to be in the person’s best interests…” Where this occurs, health and social care staff operating under the care plans will be afforded a degree of legal protection from civil or criminal liability (although not from negligent acts), provided that capacity and best interests are reviewed regularly.
There is also a potential regulatory liability on providers and managers registered with the Care Quality Commission under the Health and Social Care Act 2008 if they fail to follow the MCA. This is articulated by CQC in its December 2011 guidance for providers on the MCA under paragraph 6:
“CQC has no direct powers to enforce the MCA, but the Health and Social Care Act and its regulations have very similar requirements in relation to involvement, choice, decision-making and care planning. These requirements and guidance about compliance with them can be found in the following essential standards outcomes:
- Outcome 1: Respecting and involving people who use services
- Outcome 2: Consent to care and treatment
- Outcome 4: Care and welfare of people who use services
- Outcome 14: Supporting workers”
CQC goes on to state at paragraph 7 of the guidance that it can “…take failure to comply into account when making judgements about compliance and decisions about registration.
In fact, CQC does have the power to enforce the MCA. The provisions of the MCA 2005 can be relevant requirements’ for enforcement purposes when serving a warning notice.
The five principles underpinning the MCA
- It must be assumed that a person has the mental capacity unless proven otherwise.
- All practical steps taken must be taken to involve the person as much as possible.
- Unwise decisions do not necessarily mean capacity is lacking.
- The decision made must be the least restrictive of the person’s rights and freedoms.
- All decisions made must be in the person’s best interests.
We deal with each of these in turn.
- Where a person is described as ‘lacking capacity’, this means that the person is judged as being unable to make a decision for him or herself because of an impairment of, or a disturbance in the functioning of the mind or brain, whether temporary or permanent. Mental capacity is much more than impairment alone; albeit, the starting point must be based on the assumption that a person has the mental capacity to make their own decisions, unless it can be proven otherwise. To support that judgement, the Act requires a statutory endorsement of a functional approach to capacity. In principle, this requires a single assessment of capacity in respect of each proposed decision. A lack of capacity cannot be established merely by reference to age, appearance, or any condition or aspect of a person’s behaviour which might lead others to make unjustified assumptions about capacity.
- An assessor should encourage participation and take ‘all practical steps’ to improve the person’s ability to take part. The kind of support people might need to help them make a decision varies. It depends on personal circumstances, the kind of decision that has to be made and the time available to make the decision. It includes information being explained or presented in the persons preferred format and utilising alternative and augmentative communication methods where necessary.
- Further, a person should not be assumed to lack the capacity to make a decision just because other people think their decision is unwise. This applies even if family members, friends or healthcare or care providers are unhappy with a decision. However, there may be cause for concern if somebody repeatedly makes unwise decisions that put them at significant risk of harm or exploitation or makes a particular unwise decision that is obviously irrational or out of character. There might be need for further investigation such as the development of a condition or disorder that is affecting capacity, or the need for the provision of more information to help them understand the consequences of the decision they are making.
- Where there is more than one option, it is important to explore ways that would be less restrictive or allow the most freedom for a person who lacks capacity to make the decision in question. However, the final decision must always allow the original purpose of the decision to be achieved.
- In determining best interests, consideration must be given to all relevant circumstances including the person’s past and present wishes and values that would influence their decision if they had capacity. The views are other people should also be considered and this includes anyone engaged in caring for the person or interested in their welfare, Lasting Power of Attorney and a Deputy appointed by the Court.
Where assessments of capacity relate to day-to-day decisions and caring actions, no formal assessment procedures are required, although the principles must still be applied. Conventional arrangements should already be providing care providers with full information on a person’s needs and abilities through care planning and subsequent review processes.
As the significance of a decision increases (significance must be judged for each person individually), the assessment and decision-making process should be more formal, concisely recorded and accountable. If a decision is challenged, care providers must be able to evidence why they had a reasonable belief in the person’s lack of capacity to make the decision in question. The MCA states that, where a person is providing care or treatment for someone who lacks capacity, then the person can only provide that care without incurring legal liability provided that capacity assessments have been conducted appropriately.
Providers need to review their policies and procedures around MCA compliance and ensure their staff understand and follow them. CQC will be looking at MCA compliance as a matter of routine given their role in monitoring Deprivation of Liberty Standards and their focus on outcome 1 (respecting and involving people who use services) and outcome 2 (consent to care and treatment).
Our next article in this series on MCA compliance will look at best interests decision-making.
For legal advice about MCA compliance, please contact Neil Grant of Ridouts LLP on 020 7317 0347. More information can be found about Ridouts on their website: www.ridout-law.com. For advice on MCA and DoLS Consultancy and Practice Issues please contact Natalie Saunders on 0121 711 3769. Natalie’s website is www.independentcareconsultants.co.uk.