Feature

posted 27 Jul 2007 in Volume 12 Issue 5

The Mental Capacity Act 2005: Know the Code

The Code of Practice in support of the Mental Capacity Act 2005 has now been published. ANN CORY offers guidance on its provisions.

The short answer to the question, ‘Who needs to be aware of the Code?’ is, ‘everyone’. However, it is of particular value to anyone who works with, cares for, or advises adults who may lack capacity to make decisions for themselves in some way. While the Code is there to provide guidance to us all, certain individuals must have regard to it, and if they do not follow the guidance it provides, they must be able to justify why they have not done so.

The categories of people who must have regard to the Code are:

An attorney under a lasting Power of Attorney (LPA);
A deputy appointed by the Court of Protection;
A person acting as an independent mental capacity advocate (IMCA);
Anyone carrying out research approved in accordance with the Act;
Anyone acting in a professional capacity for, or in relation to, a person who lacks capacity;
Anyone being paid for acts for, or in relation to, a person who lacks capacity.

Those acting in a professional capacity would include doctors, nurses, dentists, social workers, solicitors and bankers. People who are paid for acting would include care-home staff and those providing domiciliary care. Family carers should also be aware of the guidance and the Code.

What happens if the Code is ignored?

There are no specific sanctions set out in either the Act or the Code. However, failure to comply with the guidance in the Code can be used in evidence before a court or tribunal in any civil or criminal action if it is thought to be relevant.

The Code of Practice is not designed to be an exhaustive guide. Various other government departments and professional organisations will be publishing advice on the Act.

The format of the Code

The Code is lengthy and split into 16 separate chapters. Chapter 1 introduces the Act in a brief, four-page resumé of the reasoning behind it and sets out the five statutory principles. These are:

A person must be assumed to have capacity unless it is established that they lack capacity;
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;
A person should not be treated as unable to make a decision merely because he makes an unwise decision;
An act done, or decision made, under this Act for, or on behalf of, the person who lacks capacity must be done, or made, in his best interests;
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.

The remaining 15 chapters each start with a short summary of the topic covered by that chapter and all have a specific reminder that:

“A person’s capacity (or lack of capacity) refers specifically to their capacity to make a particular decision at the time it needs to be made.”

Given the length of the Code this article will be concentrating on Chapters 2, 3, 4 and 5.

The statutory principles and how they should be applied – Chapter 2

This chapter considers the five principles and scenarios illustrating them. For instance:

Mrs Arnold has made an LPA appointing her son to deal with her property and financial affairs. She has been diagnosed with dementia and her son is worried about whether he should use the LPA. The son must start by assuming Mrs Arnold has capacity. Then he has to consider the financial decisions she has to make, as she makes them, giving her any help and support she needs to make those decisions. He takes her shopping and sees that she is able to find the goods she needs and pay for them correctly. However, if she has to make decisions about her investments, Mrs Arnold gets confused. She still does not understand even when the son explains the options to her. The son concludes that Mrs Arnold has the capacity to deal with day-to-day financial matters, but not difficult ones. He can use the LPA to deal with these.

The guidance reminds us that although the Act enables people to make unwise choices, this can be of concern if those decisions put them at a significant risk of harm or exploitation, or the particular decision is obviously irrational or out of character. For example, a person with early signs of dementia who overpays his cleaner on several occasions, and also cannot account for payments made from his savings account, may be showing signs
of lack of capacity to make certain decisions.

How should people be helped to make their own decisions? – Chapter 3

This chapter expands on how to help someone to make a decision. There are four areas to consider:

Providing the relevant information, including information on alternatives;
Communicating in an appropriate way;
Making the person feel at ease;
Supporting the person.

The help given is obviously going to depend on the decision being made, the timescale in which it has to be made and the individual circumstances of the person making it. The Code stipulates steps to be followed when providing relevant information, namely:

Take time to explain;
Do not give more detail than the person needs (to avoid confusion);
Explain any foreseeable consequences of making the decision and of not making any decision at all;
Explain the effects the decision might have on the person and those close to them;
Give information on choices in a balanced way;
Provide additional advice where appropriate – for example, from a doctor or lawyer.

The Code’s guidance on how to communicate with an individual is:

Ask people who know the person well about the best form of communication;
Use simple language;
Speak at the right volume and speed with appropriate words and sentence structure. Pause to check an understanding or show that a choice is available;
Break down difficult information into smaller points that are easy to understand and allow the person time to consider and understand each point before continuing;
Repeat information or go back over the points if necessary;
If help is being provided by others ensure the right to confidentiality is respected;
Be aware of ethnic or religious factors that shape a person’s way of thinking, behaviour or communication;
If necessary, consider using a professional language interpreter;
If using pictures to help communication, make sure they are relevant and the person can understand them easily;
Consider whether an advocate (someone who can support and represent the person) will improve communication.

Where you know that there are specific communication problems, additional steps have to be taken and these are:

Find out how the person is used to communicating;
If the person has hearing difficulties, use their preferred method of communication;
Consider using devices such as voice synthesisers, keyboards or other computer equipment;
If the person cannot speak, allow more time to learn how to communicate effectively;
For people who cannot talk, changes in their behaviour can provide indications of their feelings;
Some people may prefer not to communicate by talking, but do so most effectively in written form using computers or other communication technologies – for example, those with autistic spectrum disorders;
Consider enlisting other types of professional help – for example, a speech therapist.

Location and timing are important when putting a person at their ease. Most people are at ease in their own surroundings. However, it may be easier to make a decision in a more appropriate location, for example, deciding on a medical treatment by visiting the hospital to see what is involved. The Code suggests using a quiet location, eliminating background noise or distractions and making sure that the person’s privacy and dignity can be respected.

The Code makes six suggestions on timing:

Try to choose the time of day when the person is most alert;
If the person’s capacity is likely to improve in the foreseeable future, wait until it has done so if this is practical and appropriate;
Some medication could affect the person’s capacity and therefore consider whether the decision should be delayed until side effects have subsided;
Take one decision at a time and be careful to avoid making the person tired or confused;
Do not rush – allow the person to think things over or ask for clarification, where that is possible and appropriate;
Avoid or challenge time limits that are unnecessary if the decision is not urgent.

The Code recognises that all these steps may not be appropriate in all circumstances. It does give a basis for what should be done, and in particular what is expected of those assisting a person to make a decision. Where the decision is particularly important or contentious, the steps taken should be documented and kept for future reference.

How does the Act define a person’s capacity to make a decision and how should capacity be assessed? – Chapter 4

The Code refers to the two-stage test:

Does the person have an impairment of the mind or brain, or is there some sort of disturbance affecting (temporarily or permanently) the way their mind or brain works?
If so, does that impairment or disturbance mean that the person is unable to make the decision in question at the time it needs to be made?

Those assessing capacity need to be able to show, on the balance of probabilities, that the individual lacks capacity to make a particular decision at the time it needs to be made.

A person is unable to make a decision if they cannot:

Understand the information about the decision to be made;
Retain that information in their mind;
Use or weigh that information as part of the decision-making process;
Communicate their decision.

The first three of these points have to be applied together. All the relevant information includes the nature of the decision, the reason why a decision has to be made and the likely effects of deciding one way or the other, or doing nothing. The Code gives a number of illustrations of these points and by reading these illustrations, it is possible to get an idea of the processes to be used. Also, remember that once capacity to make a particular decision is made, that is not the end of the matter. If a similar decision has to be made at a later date, often an assessment of capacity should be made periodically to check that the individual’s capacity to make that decision has not changed.

The Code reminds us that the Act does not replace the common law tests for capacity.

It is expected that when future cases come before the Court, it will decide whether it is appropriate to use the new definition in the Act, therefore this is an area where new case law is likely to develop.

Ultimately, the person who assesses capacity is the person directly concerned with the individual at the time a decision needs to be made. An assessor should not therefore necessarily rely on another assessor’s assessment, as it may not be appropriate.

Anyone assessing capacity must establish whether there is a ‘reasonable belief’ of lack of capacity. To do this, you need to take ‘reasonable’ steps to establish that the person lacks capacity to make a decision or consent to an act at the time a decision is needed. Any act or decision made by the assessor needs to be in the individual’s best interest. If someone challenges your assessment, you need to be able to describe the steps taken and have objective reasons for believing the individual lacks capacity to make the decision in question.

What steps are ‘reasonable’ depends on the individual’s circumstances and the urgency of a decision. Professionals are normally expected to undertake a fuller assessment, to reflect their higher degree of knowledge and experience than family members or other carers who have no formal qualifications.

When should a professional be involved?

The Code suggests professional involvement might be needed if:

The decision that needs to be made is complicated or has serious consequences;
An assessor concludes the person lacks capacity, and the person challenges the finding;
Family members, carers and/or professionals disagree about a person’s capacity;
There is conflict of interest between the assessor and the person being assessed;
The person being assessed is expressing different views to different people;
Someone might challenge the person’s capacity to make the decision either at the time of the decision or later;
Someone has been accused of abusing vulnerable adults who may lack capacity to make decisions that protect them;
A person repeatedly makes decisions that put them at risk or could result in suffering or damage.

There are also instances where it may be a legal requirement or good professional practice to get a formal assessment undertaken. Having a professional assessment undertaken can raise the question of confidentiality. As a general rule, the individual being assessed must give consent to information being revealed to others. If the person is unable to give permission, the professional may still be allowed to pass the information on if it will help make an accurate assessment of the person’s capacity to make a specific decision. Chapter 16 deals with the rules governing access to information about a person who lacks capacity and gives general guidance on the point.

Generally, you have a right to see information about yourself. You can also consent to that information being passed on to others. Where capacity is in question, various points arise. Even though the individual may not have capacity to make the decision for which you require the information, it may be the case that they do have capacity to consent to the release of that information to you. If they do not have capacity, you may still be able to see the information depending on:

Whether you are acting as their agent, for example as a deputy or an attorney, and the information applies to the decisions you have the legal right to make for that person;
Whether disclosure is in the best interests of the person who lacks capacity;
The type of information requested.

Whatever information is obtained, it should always be treated as confidential and, if given in writing, should be stored carefully and destroyed when no longer relevant.

Challenging a finding of lack of capacity

The assessor should be asked to give their reasons for believing lack of capacity and provide objective evidence to support that belief. This means showing that they have applied the statutory principles and have followed the guidance in Chapter 4. Chapter 15 of the Code gives details on some of the ways to settle disagreements and disputes. It suggests:

Asking an advocate to express the individual’s views;
Mediation which enables all sides to air their views and hopefully reach an amicable agreement;
Using informal and formal ways of complaining about health or social care – for example, using the complaints procedures of the NHS or local authority;
Asking the Health Service Ombudsman or Local Government Ombudsman to investigate once formal complaints procedures have been exhausted;
Referring disputes about financial matters to the Office of the Public Guardian (OPG);
Referring matters to the Court of Protection.

Serious complaints may go directly to the Court of Protection.

Best interests – Chapter 5

A key principle of the Act is that any act done or any decision made on behalf of the person without capacity must be done in their ‘best interests’.
As long as the person who acts or makes the decision has followed the steps to establish whether the person has capacity, and has done everything they reasonably can to work out what someone’s best interests are, the Act does give protection.

The steps specified to establishing best interests are:

Encourage participation of the individual;
Identify all relevant circumstances that the individual would take into account;
Find out the person’s past and present wishes and feelings, any beliefs and values they have and other factors they would be likely to consider;
Avoid discrimination;
Assess whether they might regain capacity;
If the decision concerns life-sustaining treatment, not to be motivated in any way by a desire to bring about the person’s death;
Consult others if practical and appropriate – for example, close relatives, attorneys, deputies or anyone the individual has named as a person to be consulted;
Before decisions about major medical treatment or where the person should live are made, and where there is no one who fits any of these categories, an IMCA must be consulted;
Avoid restricting the person’s rights.
Take everything into account when deciding what is in the individual’s best interest.

There are two exceptions. The first deals with a case where the individual has made an advance decision to refuse medical treatment whilst they had the capacity to do so. The advance decision should be respected even if not in their best interests. Chapter 9 deals with guidance on this. Sections
5.29 to 5.36 contain additional guidance on how to work out a person’s best interests when making decisions about life-sustaining treatment, and anyone faced with this situation where there is no advance decision should read these sections.

The second exception is covered by Chapter 11. What is in a person’s best interests may vary over time, and therefore even where similar actions need to be taken repeatedly in connection with a person’s care or treatment, the person’s best interests should be regularly reviewed. The Code recommends that a record is kept of the process of working out this interest, 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;
What particular factors were taken into account.

When involving the person themselves in working out best interests, it is necessary to return to the guidance given in Chapter 3 on how to give relevant information to help a decision be made.

When assessing whether the person may recover capacity, you will need to consider the timescale involved and the urgency of the decision to be made. This is particularly relevant in a stroke case where the individual may be severely affected initially, but with time and treatment may regain some, if not all, of their functions.

When considering a person’s own past and present wishes and feelings, the Code does place emphasis on written statements made by the individual before they lost capacity. In the light of this, perhaps we should all be encouraged to put our thoughts on these important issues in writing to be used in the future.

What happens if there are disagreements between those consulted over what is in the individual’s best interests? The Code says that ultimately it is up to the person making the decision to make it.

The remainder of the Code

Chapter 6 gives guidance on the protection given by the Act to people providing care or treatment to or for a person without capacity. The benefit from Section 5 is most likely to assist family and other care workers, health care and social care staff and others who may be occasionally involved in the care or treatment of the person lacking capacity to consent – for example, ambulance staff.

Chapter 7 deals with LPAs and will be the subject of an article to be published later this year. Chapter 8 deals with the role of the Court of Protection and deputies. Chapter 10 gives guidance on the role of the new independent mental capacity advocate service.

The Code is essential reading for all those involved in any way with a person who may lack capacity in some shape or form. Carers, be they family or not, and professionals must be well versed in the basic principles of the Act and the Code, therefore I suggest you have copies of both to hand. The Code can be downloaded from the Department of Constitutional Affairs’ website. It is intended that the Code will evolve as time passes, and therefore as cases are heard by the Court, and situations reviewed by the OPG, we can expect changes to be made.

Ann Cory is an associate solicitor at Wilsons solicitors www.wilsonslaw.com. She can be contacted at 01722 427517 or ac@wilsonslaw.com