In our article published in the May 2012 edition of Healthcare Business, we considered the requirements surrounding mental capacity assessments under the Mental Capacity Act 2005 (“the MCA”). This article looks at best interests decision-making where the service user is judged to lack capacity to make the decision in question. As with all issues of compliance, the starting point must be the law rather than guidance or accepted practice, a point that is often forgotten.
The purpose of the MCA
The purpose of the MCA is to empower people to make decisions wherever possible and to protect those who lack capacity by providing a flexible framework that places individuals at the heart of the decision-making process. Everyone has a pivotal role in the successful implementation of the MCA, and all those who work with a person who lacks capacity must follow the MCA and have regard to the accompanying Codes of Practice.
The best interests framework is set out in section 4 of the MCA and it is essential that decision-makers on behalf of mentally incapacitated adults are familiar with the legal requirements which form a “checklist” of do’s and don’ts. As the Care Quality Commission says in its Guidance for Providers on the MCA (December 2011), the best interests checklist does not just apply to significant welfare decisions but “…equally to routine, day-to-day decision-making and will need to be taken into account when setting and reviewing care plans.” CQC indicates in the same guidance document that it can ask whether staff are aware of the decision-maker’s checklist. Therefore, the clear expectation is that staff will know and apply the checklist when caring for service users. So what are the key elements of lawful best interests decision-making?
All relevant circumstances
The decision-maker will need to consider all the relevant circumstances relating to the service user. This is what the decision-maker knows about the circumstances of the service user and what would be reasonable to regard as relevant. For example, if it is known that a service user has a particular religious persuasion, that would be a relevant factor to consider if it might impact on the decision in question. It is an obvious point but an assessment of best interests will always depend on the facts of the case.
The Best Interests Checklist
The decision-maker needs to follow the checklist set out on section 4 of the MCA. In addition, the decision-maker should have an appreciation of part 5 of the Code of Practice which gives useful guidance on fulfilling the statutory requirements. The checklist is not a definition of best interests or even a complete list of factors requiring consideration. Instead the checklist sets out the essential issues to be included when making lawful best interests decisions on behalf of mentally incapacitated adults.
The key elements of the checklist are set out in a helpful, user-friendly format in the CQC Guidance for Providers on the MCA at part 8. These are as follows:
- Decisions should not be made just on the basis of a person’s age or appearance, or on the basis of behaviour that might lead to unjustified assumptions;
- All relevant circumstances should be taken into account;
- The service user should be encouraged and helped to join in making the decision wherever and to whatever extent that is possible;
- If the decision is about life sustaining medical treatment, it must not be motivated by a wish to hasten the person’s death;
- The service user’s past and present wishes, feelings, beliefs and values must be considered;
- The views of other relevant people should also be considered, in particular:
– Anyone the service user has asked to be consulted;
– Those involved in caring for the service user;
– Anyone else interested in their welfare;
– An Independent Mental Capacity Advocate;
– Holders of a Lasting Power of Attorney; and
– Any court appointed deputy.
Recording and reviewing decisions
It is essential to record the decisions that have been taken in sufficient detail to evidence compliance with the MCA and the essential standards. CQC emphasises the importance of recording “why, when and how decisions were made” and “the people who were involved in taking the decision.” CQC also adds, “the amount of information included in written assessments should increase with the significance of the decision that needs to be made.” Therefore, one would expect more detail for a decision not to resuscitate than for a routine decision about ongoing personal care. To maintain compliance, it will also be necessary to keep decisions under review. For example, a previous decision not to resuscitate may be rendered redundant if there is a change in the service user’s condition that would indicate resuscitation as being clinically appropriate.
The challenge for providers
The success of best interests decision-making is dependent on proper planning, both in terms of consulting with relevant others, including family and friends, and building a holistic awareness of the person’s life, including any advance decisions that might needed to be respected. It is important to apply a considered approach to the particular matter under consideration drawing up what the courts call a “balance sheet of welfare factors” describing the benefits and detriments of the various possible courses of action, having consulted with all relevant parties. Structured multi-disciplinary meetings will allow for all of the considerations to be deliberated, as well as ensuring appropriate recording of decisions.
To support effective decision-making on behalf of incapacitated adults, practical rather than theoretical training is essential to ensure new staff have the necessary awareness of the MCA to support safe and lawful care practice, both at the induction stage and as part of ongoing mandatory training. Reflective legal, practical and ethical issues must begin to be shared and deliberated. This could be further addressed through skill sharing and case studies forming a regular part of the agenda in individual supervision and team meetings.
If the decision-maker follows the specific steps in the MCA, and reasonably believes that what he does or decides is in the best interests of the person concerned, then he will have complied with the MCA and be provided with a degree of protection from legal liability (although this will not extend to negligent acts). Following the statutory checklist will also assist the registered provider in achieving compliance with CQC’s requirements under the Health and Social Care Act 2008 in relation to involvement, choice, decision-making and care planning.
Although the MCA has been on the statute book for over five years, the practical workings of it are yet to be broadly established and are often perceived as discretionary or too complex to apply in practice. The health and social care sector as a whole must recognise and fulfil its responsibility in supporting all of its members to align best interests decision-making with the MCA.
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.
