The mental capacity act( mca ) 2005

1. The mental capacity act(mca) 2005 LINDSAY MILTON 4/9/18

2. Dentists must gain consent from patients for examination and treatment • Increasing ageing population with corresponding increase in people with dementia • Increased lifespan of those with learning disabilities, brain injuries, chronic diseases • Subsequent increase in number of patients having difficulty making decisions for themselves

3. What is capacity? • capacity is the ability of an individual to make a particular decision - decision and time specific • determined by the type of decision • understanding the consequences • ability to weigh up the options A person may not have capacity for complex decisions (eg RCT v extn) but may be perfectly able to make choices related to daily living (eg meals, clothing choice)

4. Compliance with mca code of practice • ‘A failure to comply with the provisions of the Act may lead to legal liability and a failure to have regard to the Code may be used as evidence in any subsequent legal proceedings’

5. Assessing capacity • dental team makes continual assessment of patient capacity • clinician is responsible for assessing capacity from completion of undergraduate training • where capacity lacking they must act in best interest of patient • clinicians are responsible for identifying lack of capacity and acting accordingly

6. Special care dentistry commissioning guide • Used in England to define levels of complexity • Level 1 - expected on completion of foundation training • Level 2 – requiring increased competency, skills and experience to manage higher complexity with a formal relationship with a specialist • Level 3 – providing specialist care APPLIES TO ENGLAND BUT GUIDANCE EQUALLY RELEVANT ACROSS UK

7. ADULT WITH CAPACITY ( mca 2005) • ‘The patient must have capacity to make that particular decision both during the consultation and planning process and at the time of treatment.’

8. adolescents • - ‘Gillick competence’ used to describe a situation where a person under 16 years of age has capacity to consent (NB unrelated to the Bolam principle which relates to professional opinion consensus or the Montgomery ruling which relates to patient autonomy) • In England and Wales the Children Act 1989, 2004 and Children and Families Act 2014 define a child as children below 16 years of age and those aged 17, 18, 19 or 20 with a learning disability/been in Local Authority Care after 16 • In Scotland the Age of Legal Capacity (Scotland) Act defines 16 year olds as being able to make their decisions but any child can consent to treatment if they understand the nature, risks and benefits of treatment

9. National variations • MCA (2005) – England and Wales • Adults with Incapacity (AWI) – Scotland • Mental Capacity Bill (Northern Ireland) - despite the different legislative framework the fundamental principles od assessing capacity and acting in the patient’s best interests are consistent across the UK

10. Assumption and support • - assessments begin with assumption that patient has capacity • - must be demonstrable and noted that reasonable steps have been taken to help patient make a decision by taking the following into consideration:- • 1. communication (different approaches-story board, role play) • 2. involving others (NB confidentiality) • 3. time (allow sufficient to process and discuss)

11. RCPS(England) view • ‘dental services should be provided in a way that: • recognises everyone as an individual • recognises that everyone has a right to participate in decisions that affect their lives • provides the amount of support necessary to enable everyday living including adequate health care’.

12. mca principles • 1. capacity assumed unless lack of capacity established • 2. person not treated as unable to make a decision unless all practicable steps have been taken to help him do so without success • 3. person not treated as unable to make a decision merely because she makes an unwise decision • 4. an act done or decision made under this Act for/on behalf of a person who lacks capacity must be done/made in person’s best interests (clinician may withdraw form treating patient if conflicts with professional judgement) • 5. before act done or decision made under this Act regard must be made as to whether the purpose for which it is needed can be effectively achieved in a way that is less restrictive of the person’s rights and freedom of action

13. Mwa (2005) formal assessment of capacity • 2 stage process • Stage1: does the person have impairment in the functioning of his mind? • Stage 2: is the person able to: • 1. understand the information, risks and benefits • 2. retain the information long enough to make a decision • 3. weigh up the options relating to the decision • 4. communicate her decision by verbal or non-verbal means • 5. retain the memory of that decision (AWI Scotland). retain the memory of that decision (AWI Scotland) • - if the answer to any part of stage 2 is ‘no’ then he is deemed to lack capacity for that decisionAT THAT TIME (decision can be delayed if potential to regain capacity eg alcohol/drugs)

14. Lack of capacity • clinician must act in best interests of patient • consult with those close to patient (family, friends, carers, other professionals) • legislation differs across UK • consider carefully and record to ensure protection against civil and criminal liability for acting without patient consent

15. Uklegislation Lasting Power of Attorney(LPA): England/Wales(MCA 2005)/Northern Ireland(MCB 20016) • - nominated by individual to act should capacity be lost in the future; can only make decisions for patient when he lacks capacity for that decision and must follow MCA • - cannot make decisions for person detained under Mental Health Act (1983) There are two types of LPA: • Health and welfare (only valid when capacity lacking) • Property & financial affairs (can be used whilst capacity is present with the person’s permission) Enduring Power of Attorney: England/Wales prior to 2007 relating to property & financial affairs but NOT welfare. Still current in Northern Ireland and needs to be registered with the High Court when capacity is lost. Office of care and Protection can appoint a Controller when a person no longer has capacity but does not have an Enduring Power of Attorney in place however responsibilities are financial not health and welfare Proxy/Power of Attorney/Guardianship: Scotland (Adults with Incapacity Scotland Act 2000) Proxy: general term for anyone authorised to act on someone else’s behalf should he lose capacity to make a particular decision Power of Attorney: Welfare Power of Attorney with the Office of the Public Guardian (Scotland ). N.B. Commencing or Commencing Power of Attorney for financial only

16. UNBEFRIENDED PEOPLE/Certificate of incapacity • When a person lacks capacity and has no other proxy to consult (Unbefriended people) the AWI (Scotland) allows an appropriately qualified and trained practitioner to issue a ‘section 47’ Certificate of Incapacity. It is necessary for a dentist to attend a registered course to be authorised to do this. The certificate relates to a particular decision and is for a prescribed time up to a maximum of 3 years. • In England an Independent Mental Capacity Advocate (IMCA) is used. The role of an IMCA is to support and safeguard the rights of an individual deemed to lack capacity

17. Summary of principles of uk capacity legislation • Capacity is assumed until proven otherwise and assessed continually • All reasonable steps should be taken to enable person to decide themselves • Making a decision considered to be unwise doesn’t mean lack of capacity • Acts & decisions made for a person lacking capacity must be in their best interests • Least restrictive option should be chosen to achieve aim of action • Wishes and beliefs prior to loss of capacity must be considered • Takes into account the views of those close to the patient

18. Best interests decision Where an adult lacks capacity treatment is usually provided in the best interests of the patient and the following should be taken into consideration • Family and friends (relationship with patient) • Previous wishes and beliefs (PMH/PDH) • Proposed treatment (irreversible?) • Urgency (pain/infection)

19. References available on requestthank you for listening