The Mental Capacity Act 2005

The Mental Capacity Act 2005 covers all decisions on personal welfare including financial matters, relating to people who temporarily or permanently lack mental capacity. This paper outlines the most important provisions of the Act and describes some of the implications for healthcare professionals. For example, the Act permits advance decisions to refuse healthcare; the appointment of a person to have a Lasting Power of Attorney to act on a person's behalf at some point in the future; the appointment of a court-appointed deputy to act on behalf of a person lacking mental capacity; and research involving people who lack mental capacity in specific circumstances. The Court of Protection will now have a role in resolving difficult ethical problems in clinical cases.     

Safeguarding research subjects who lack decision-making capacity

In keeping with the Declaration of Helsinki, health-care research generally requires the informed consent of those who participate in the study. This approach upholds the autonomy of the participants but restricts research to subjects who have decision-making capacity. In order that people who lack decision making capacity can benefit from properly conducted research, the Mental Capacity Act 2005 introduced safeguards that enable researchers to investigate the care and treatment of people with incapacity while protecting this vulnerable patient group. This article outlines the requirements that must be met when conducting research with subjects who lack decision-making capacity.     

Mental Capacity Act 2005: statutory principles and key concepts

The Mental Capacity Act 2005 represents the most significant development in the law relating to people who lack decision making capacity since the Mental Health Act 1959 removed the states parens patriae jurisdiction preventing relatives, courts and government bodies consenting on behalf of incapable adults (F vs West Berkshire HA [1990]). The Mental Capacity Act 2005 impacts on the care and treatment provided by district nurses and it is essential that you have a sound working knowledge of its provisions and code of practice. In the first article of a series focusing on how the Mental Capacity Act 2005 applies to district nurse practice, Richard Griffith and Cassam Tengnah consider the principles and key concepts underpinning the Act.     

Making decisions for incapable adults 4: participation in research

In the final article on the Mental Capacity Act 2005, Richard Griffith discusses the safeguards in place to protect incapable persons who may be the subject of a research study or clinical trial. District nurses and other health professionals who wish to conduct research involving people with incapacity will have a duty to apply the 2005 Act's safeguards to ensure that the research is lawful.     

Care adjustments for people with learning disabilities in hospitals

Health inequalities start early in life for people with learning disabilities. In the UK, they can arise from various barriers that people experience when trying to access care that should be appropriate, timely and effective. Inequalities in health care are likely to result in many NHS organisations breaching their legal responsibilities, as outlined in the Disability Discrimination Acts 1995 and 2005, the Equality Act 2010 and the Mental Capacity Act 2005 (Emerson and Baines 2010). This article seeks to help nurses, healthcare professionals and hospital managers ensure that better services are delivered by encouraging them to explore how reasonable adjustments can improve outcomes for people with learning disabilities.     

Decision-making support for inpatients with learning disabilities

Many people with learning disabilities are able to make their own healthcare decisions, but some lack the mental capacity to do so. This article discusses how the Mental Capacity Act can be used to guide decision-making for people with learning disabilities in hospital, and ensure all decisions are made in the patient's best interests.     

Mental capacity Act 2005: assessing decision-making capacity

In last month's article on the Mental Capacity Act 2005 Richard Griffith and Cassam Tengnah outlined the statutory principles and key powers that underpin the Act. This month's article considers one of the fundamental requirements of the Mental Capacity Act 2005, how and when should district nurses assess decision making capacity.     

Implications of the Mental Capacity Act 2005 on advance care planning at the end of life

The Mental Capacity Act 2005 is concerned with decisions that are made on behalf of adults who lack the capacity to make those decisions for themselves. It has profound implications for decision making in end-of-life care. This article explores some of the issues raised by this legislation and highlights the need for health and social care professionals who are engaged in providing end-of-life care to understand their legal duty in relation to the act.     

Deprivation of liberty safeguards

The Mental Health Act 2007 introduced an amendment to the Mental Capacity Act 2005 that authorizes the deprivation of liberty of a person who lacks decision-making capacity in a care home or hospital where this is necessary to protect them from harm. District nurses will have such patients on their case loads and will need to be aware of the requirements that are due to come into force in April 2009.     

The Mental Capacity Act 2005 and decision-making: advocacy

This article continues the series into the content and implications of the Mental Capacity Act 2005, which looks at the requirement to provide an independent mental capacity advocacy service in specified situations. The Act requires NHS organizations and local authorities to arrange for the appointment of an independent mental capacity advocate in the following situations: where serious medical treatment is being considered for a person who is incapable of making his or her own decisions, and where accommodation is being arranged by an NHS organization, or by a local authority, for a person who lacks the requisite mental capacity to give consent. Additional situations have been added by regulations and these include where there is a review of the accommodation arrangements (Reg. 3) or where an NHS body or local authority propose to take protective measures in relation to a person who lacks the requisite mental capacity (Reg. 4). The statutory duty does not apply if there is a person whom it would be appropriate to consult on a person's best interests, except in the case of protective measures being taken. The article considers the powers and the duties of the independent mental capacity advocate and applies the legal provisions to a practical situation.     

The Mental Capacity Act 2005 and decision-making: code of practice

Continuing the series of articles on the Mental Capacity Act 2005, which for the most part came into force in October 2007, this article considers the significance of the Mental Capacity Act 2005 Code of Practice (Department of Constitutional Affairs, 2007), and its implications for nursing staff. The Secretary of State is required to provide a code or codes of practice on the Act covering specified areas. A draft code was prepared and was revised that came into force on 1 April 2007. The article sets out who is bound to follow the Code of Practice and the consequences if it is ignored. Informal (unpaid) carers are not required by the Act to follow the Code but it is hoped that in practice they will do so. The Ministry of Justice (replacing the Department of Constitutional Affairs) is responsible for monitoring the Code and will revise it from time to time.     

Best interests. An holistic approach: Part 2(b)

In the last article principles and guidelines were discussed that related to the ways in which nurses have to work with the best interests of their patients in mind. Where a person is ordinarily capable of consenting to or refusing to consent to, a proposed course of treatment or care but has temporarily lost that capacity, there are certain legal guidelines to follow to ensure that the minimum interventions occur until the person regains their capacity to act in their own interests. However, also highlighted was that that certain people have never attained capacity, or do not yet have capacity or have lost capacity on a permanent basis. For these people, there are legal principles that are incorporated in the Mental Capacity Act and these have to be abided by. This article is dedicated to a review of the situation where, sadly, a person has been assessed as not being legally competent to make their own health decisions. However, where a programme of treatment and care has been clinically proposed, the person refuses to co-operate. The situation of enforced treatment and care is a delicate one. Staff have to be aware of the legal principles that apply, with reference to the Mental Capacity Act.     

Decision-making in palliative care: the Mental Capacity Act 2005

The Mental Capacity Act 2005 is due to be fully implemented in the UK in October 2007 with some of its provisions having already come into force in April 2007. The Act is concerned with the way in which decisions are made on behalf of those individuals who lack the capacity to make their own decisions. It is therefore expected that the Act will have a significant impact on decision-making within palliative care.     

The palliative care needs of people with intellectual disabilities: a literature review

People with intellectual disabilities are among the most disadvantaged groups in society. A literature review was conducted aiming to answer the following question: What are the palliative care needs of people with intellectual disabilities? The literature review covers case histories, morbidity and mortality patterns for people with intellectual disabilities, their healthcare needs and primary care provision, the way they may present symptoms, their conceptualization of illness and death and issues around education and training. While the literature review reveals a lack of empirical data around the palliative care needs of people with intellectual disabilities, a number of potential problem areas are highlighted. These include late presentation of illness, difficulties in assessing symptoms, difficulties in understanding the illness and its implications and ethical issues around decision making and consent to treatment. It is suggested that future studies will need to include the views and experiences of people with intellectual disabilities themselves. Areas for possible future development include symptom assessment, evaluation of current practice and access to services and the development of information and training materials.     

End-of-life issues: common law and the Mental Capacity Act 2005

The preceding articles in this group of the series have thus far identified the common law principles in the sections of the Mental Capacity Act 2005 in respect of certain groups of people--those who retain their capacity to organize their own health-related affairs, those who have lost their capacity to self-determine their health choices on a temporary basis, and those who are no longer competent but who had previously identified their choices in respect of treatments and care. One common theme attaches to these groups--they all fall within the common law principles that underpin the health-related needs of those whose lives are supposed to continue after the decisions have been identified. This article, the last in this group, addresses specifically the legal principles, the ethical and moral dimensions, and the practical aspects of decisions where the consequence will be death--the so called 'end-of-life issues'.     

Knowledge of Mental Capacity Issues in Community Teams for Adults with Learning Disabilities

Background The aim of this study was to evaluate the state of knowledge of mental capacity issues among health and social services professionals working in community teams supporting people with learning disabilities. Methods A structured interview was constructed around three scenarios, based on actual cases, concerning a financial/legal issue, a health issue and a relationships issue, as well as a set of ten ‘true/false’ statements. The interview aimed to elicit respondents’ understanding in relation, primarily, to assessment of capacity and best‐interests decision making. Forty interviews were conducted (two social workers and two health professionals from each of ten community teams). Most participants had attended training on the Mental Capacity Act (2005) . Results Performance of social services and health staff was similar throughout. Fourteen areas of concern were identified where there appeared to be significant gaps in knowledge. Conclusions Participants, particularly those who had experience of dealing with mental capacity issues, had good insight into the extent of their knowledge, and most participants said that the interview had made them aware of further training needs.     

The challenges for nurses communicating with and gaining valid consent from adults with intellectual disabilities within the accident and emergency care service

Aim. This paper reports the challenges experienced by nurses within accident and emergency departments in communicating with and gaining valid consent from adults with intellectual disabilities. Background. Consent is both a legal requirement and an ethical principle required to be obtained by health‐care professionals, prior to the start of any examination, treatment and/or care. Central to the process of seeking consent is effective communication. However, evidence shows that people with intellectual disabilities are not viewed by professionals within acute general hospitals as a vital source of information, neither are they often communicated with directly, nor involved in discussions or decisions about their health care and are frequently not directly asked for their consent. Method. A purposive sample of nurses working within the accident and emergency departments of five general hospitals was recruited to participate in this qualitative study. Data were collected from five focus groups. Findings. Effective communication was identified as the most challenging aspect in caring for adults with intellectual disabilities within this environment, having an impact on the assessment of needs, informing patients of their health status and seeking valid consent. Conclusions. Fundamental to the provision of quality care are the concepts communication, choice and control. However, these issues are perceived to be more challenging in the provision of health care to people with intellectual disabilities. Communication and consent, therefore, require further consideration within the educational and clinical areas to strengthen nurses’ competence in caring for people with intellectual disabilities, with an emphasis and understanding that choice and control are key principles for all people, being central aspects to the provision of an inclusive service for people with intellectual disabilities. Relevance to clinical practice. All nurses need to have a greater awareness of learning disability, how to increase opportunities for effective communication and be very familiar with the issue and guidelines relating to consent, to ensure that people with learning disabilities have choice, control and are more active in decision making regarding their health.     

The Mental Capacity Act 2005: the new Court of Protection

The new Court of Protection is now considered in the series of articles on the Mental Capacity Act 2005. The Court of Protection was established on the 1 October 2007 and has a much wider jurisdiction than its predecessor. It can now hear cases concerned with the personal welfare of those who lack the mental capacity to make their own decisions, as well as issues relating to property and finance which were the sole concern of its predecessor. This article considers the powers, procedure, practice, rules and directions of the Court and its power to appoint deputies and their role. It also considers the new Office of Public Guardian and its role in keeping a register of Deputies and Lasting Powers of Attorney. It also considers the appointment of Special and General Visitors. The implications of these new institutions are reviewed in the light of a common situation involving healthcare practitioners.     

Transitions: Placing a Son or Daughter with Intellectual Disability and Challenging Behaviour in Alternative Residential Provision

Introduction The timing of moves to alternative care has implications for the effective support of people with intellectual disabilities and their families. Essex et al. (1997 ) proposed three transition profiles: ‘normative’, ‘stress process’ and ‘postponed’. The applicability of these profiles to people with intellectual disabilities and challenging behaviour was tested. Methods Qualitative analysis of interviews with families of 13 males and five females aged between 11 and 35 years, who had left home, was undertaken. Results Few people moved due to ‘normative’ family life cycle changes. The majority left because of family difficulties (‘stress process’). This model was elaborated and three transition routes described: ‘forensic’– involving police contact (actual/potential), ‘family’– reflecting problems in the family and ‘service’– deficits leading to placement out of district. Conclusions This research suggests that people (particularly young men) with intellectual disabilities and challenging behaviour enter statutory care earlier than their counterparts, and people with different levels of intellectual and physical disabilities follow different transition routes.     

The Mental Capacity Act 1: advance decisions

This is the first of a two-part unit on the Mental Capacity Act 2005. Part 1 outlines the act's key principles and implications. Healthcare professionals' responsibilities are examined in relation to advance decisions.