Mental Capacity Act (2005) policy

Contents

1 Introduction

The Mental Capacity Act 2005 (MCA) (opens in new window) came into force in October 2007. It provides a legal framework for acting and making decisions on behalf of vulnerable people who lack the mental capacity to make specific decisions for themselves. The act provides a statutory framework to empower and protect such individuals. It makes it clear who can make decisions, in which situations and how they should go about this. It also enables people to plan ahead for a time when they may lose capacity.

The act also aims to ensure that any decision made or action taken on behalf of an individual, who lacks the capacity to make that decision themselves, will always be made in their best interests. However, there are certain decisions that can never be made on behalf of a person lacking capacity because they have been specifically excluded from the provisions of the MCA.

The MCA imposes strict obligations upon health and social care staff when assessing capacity and when reaching decisions as to the best interests of incapacitated persons. It also provides legal protection to health and social care staff who fulfil these obligations and who follow the statutory procedures carefully and reasonably.

In order to protect the rights of vulnerable individuals who for their own safety need to be accommodated under care and treatment regimes that could deprive them of their liberty. The act makes provisions for the use of the deprivation of liberty safeguards (DoLS) to ensure that any decision taken to deprive someone of their liberty is made in accordance with a well-defined process, thoroughly documented and carried out in consultation with specific authorities. (please refer to the trust’s separate MCA deprivation of liberty (DoL) policy).

This policy, procedure and guidance explains the key provisions of the MCA and identifies the steps that relevant staff in the health and social care community should take when issues about an individual’s capacity to make decisions arise. This document will be reviewed frequently in order to take into account of amendments stemming from changes in legislation, case law and statutory guidance.

The MCA applies in conjunction with other legislation, under which health and social care staff have obligations relating to people who may lack capacity. See links below.

• The Mental Capacity Act 2005 (MCA) (opens in new window)
• Mental Capacity Act Code of Practice (opens in new window)
• Mental Health Act 1983 (as amended by the MHA 2007) (opens in new window)
• Human Rights Act 1998 (opens in new window)
• Care Standards Act 2000  (opens in new window)
• Data Protection Act 2018 and the General Date Protection Regulations
• National Health Service and Community Care Act 1990 (opens in new window) 
• The Children’s Act 1989 (opens in new window)

1.1 Five key principles underpinning the act

The MCA details five guiding principles which health and social care staff must have regard to at all times when dealing with a person who lacks or may lack capacity in relation to a matter:

1. a presumption of capacity, every adult has the right to make his or her own decisions and must be assumed to have capacity to do so unless it is proved otherwise
2. the right for individuals to be supported to make their own decisions, a person is not to be treated as unable to make a decision unless all practicable steps to help the individual have been attempted without success
3. a person is not to be treated as unable to make a decision merely because they make an unwise decision
4. best interests, anything done for or on behalf of people without capacity must be in their best interests
5. consideration to less restrictive intervention, before the act is done or the decision is made, regard must be given whether it can effectively be achieved in a way that is less restrictive of the person’s rights and freedom of action

2 Purpose

The purpose of this policy is to provide staff working in or with Rotherham Doncaster and South Humber NHS Foundation Trust with guidance about the MCA. It sets out the main provisions of the act, identifies the duties placed on health and social care staff and provides a procedure to determine the circumstances in which the various processes described within the MCA should be followed.

Trust staff need to be able to determine a person’s mental capacity in relation to the decisions they face both throughout the patient’s journey wherever consent is required, or a decision needs to be made.

The MCA imposes strict obligations upon health and social care staff when assessing capacity and when reaching decisions as to the best interests of incapacitated persons. It also provides legal protection to health and social care staff who fulfil these obligations and who follow the statutory procedures carefully and reasonably.

This guidance supplements, and should be used in conjunction with the MCA Code of Practice. The trust is committed to ensuring that all people within the trust who are using our services are treated with dignity and respect and individuals and their families or carers receive appropriate care and support.

This policy is not a replacement for the Mental Capacity Act Code of Practice (2007).

2.1 Definitions

3 Scope

This policy applies to everyone in a paid, professional or voluntary capacity who is involved in the care, treatment or support of people aged 16 years or over under the umbrella of Rotherham Doncaster and South Humber NHS Foundation Trust. This includes staff employed by the trust, social care and health staff who are either seconded to the trust or work in partnership with the trust and volunteers who are working within the trust.

3.1 People covered by the Mental Capacity Act

The act applies to people aged 16 or over who lack capacity to make their own decisions. Having mental capacity means that a person is able to make their own decisions. Capacity can vary over time and can vary in respect of the specific decision to be made. A lack of capacity could be the result of a permanent, temporary or fluctuating condition.

The MCA is specifically designed to cover situations where someone is unable to make a decision because their mind or brain is affected, for instance, by illness or disability, or the effects of drugs or alcohol. A lack of mental capacity could be due to (the below list is not exhaustive):

• a stroke or brain injury
• a mental health problem
• dementia
• a learning disability
• physical or mental conditions leading to confusion, drowsiness or loss of consciousness including delirium, concussion, and the long-term effects of brain damage
• the symptoms of alcohol or drug use

However, it is important to know that having a particular diagnosis or disability should not of itself be taken as an indication that the person does or does not lack capacity. All individuals must be presumed to have capacity, unless it is established otherwise under the capacity test set out in the act (see section 5.2 below).

3.2 Younger people

The Children Act 1989 covers the care and welfare of children in most situations.

However some of the provisions within the act apply to young people of 16 years of age or over who lack capacity to make their own decisions.

Decisions relating to treatment of young people of 16 and 17 who lack capacity must be made in their best interests in accordance with the principles of the act. The young person’s family and friends should be consulted where practicable and appropriate.

The Mental Capacity Act applies to children under 16 years in two ways:

• the Court of Protection can make decisions about the property and affairs of a child where it is likely that the child will lack capacity to make those decisions when they reach 16 years old
• the criminal offence of ill treatment or neglect applies to children who lack capacity

3.3 Mental Health Act (1983)

The Mental Health Act provides ways of assessing treating and caring for people who have a serious mental disorder that puts them or others at risk. Most of the provisions of the Mental Health Act do not distinguish between people who have capacity to make decisions and those who do not. There may be cases where decision-makers will need to decide whether to use the Mental Health Act or Mental Capacity Act or provisions from both acts to meet the needs of people with mental health problems who lack capacity to make specific decisions.

The relationship between the MCA and the Mental Health Act 1983 (MHA) is complex. However, in general terms:

• where a patient is detained under the MHA, they can be given treatment for their mental disorder and for symptoms of that mental disorder without their consent. In these circumstances, the MCA will not apply and the provisions of part IV of the MHA should instead be relied upon when determining whether to provide treatment
• where a detained patient requires treatment which is not for their mental disorder or any symptom of it (for example, treatment for a medical condition which is not related to their mental disorder), they cannot be provided with this treatment without their consent. In these circumstances part IV of the MHA cannot be relied upon in order to give treatment without the patient’s consent, and instead the provisions of the MCA will apply. Either the patient’s valid consent to treatment must be obtained, or a best interests decision must be properly reached where the patient is assessed as lacking capacity to give their consent
• where a patient is not detained under the MHA, their valid consent to treatment is required and they cannot be treated without consent under part IV. The provisions of the MCA will apply in full in these cases

3.3.1 Testing the capacity of patients detained under the Mental Health Act is required

• Where it is specified in the MHA 1983 in connection with treatment.

3.3.2 To ensure compliance with the Mental Health Act (1983) and Human Rights Act in regard to the right to tribunals

• For all newly detained patients, where their mental capacity to be able to apply to the MHRT must be assessed. If the patient does not have capacity, consideration must be given to their wishes and if appropriate, assistance provided to facilitate a tribunal hearing (whether this is through the nearest relative or the Secretary of State).
• Keep under review the mental capacity of all detained patients.
• Ensure compliance with section 132, providing information to patients and nearest relatives about their statutory rights.

Any issues regarding the implementation and practice of the MCA should be brought to the attention of Mental Capacity Act lead as and when they arise.

4 Responsibilities, accountabilities and duties

4.1 Chief executive

The chief executive is responsible for there being a structured approach to policy development and management. Responsibility for this policy is delegated to:

4.2 The care group directors

The care group directors for each locality are the accountable directors for this policy.

4.3 Clinical managers’ responsibilities

It is each relevant clinical manager’s responsibility to ensure their staff are informed of the Mental Capacity Act 2005 policy and receive sufficient training and support to undertake their role.

4.4 Clinical staff responsibility

It is each individual’s responsibility to ensure they make themselves aware of this policy and receive sufficient training and information about the Mental Capacity Act to undertake their role.

5 Procedure or implementation

5.1 Conducting assessments of capacity

Under the MCA, a decision about a person’s capacity can be made by anyone who follows the assessing criteria This will usually be the person most directly connected with the individual at the time the decision has to be made. This will particularly be the case for day to day decisions.

5.2 Professional involvement

For more complex decisions, relating to care or treatment, it may be appropriate that the decision may be taken by an appropriate health or social care professional.

Professional involvement might be needed if:

• the decision that needs to be made is complex or has serious consequences
• an assessor concludes that a person lacks capacity, but the person wishes to challenge that decision
• family, 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
• somebody might challenge the person’s capacity to make the decision, either at that time or later
• a vulnerable person may have been abused but lacks the capacity to make decisions that protect them
• a person repeatedly makes decisions that could put them at risk or could result in suffering or damage

5.3 Assessing capacity

The MCA defines incapacity as follows:

• “a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”

The MCA sets out a single clear test for assessing whether a person lacks capacity to take a particular decision at a particular time. It is a “decision specific” test. No one can be regarded as lacking capacity to make decisions in general. It is also a “time-specific” test, that is to say, capacity should be assessed to take that decision at that time, and again not in general.

The act makes it clear that a lack of capacity cannot be established merely by reference to a person’s age, appearance, or any condition or aspect of a person’s behaviour which might lead to unjustified assumptions about their capacity.

The starting point is always to assume that a person has capacity to make a specific decision, although possibly with help or support.

The test for determining whether a person is unable to make a decision is set out in sections 2 and 3 of the Mental Capacity Act 2005:

• anyone assessing someone’s capacity to make a decision for themselves must use the following two-stage test of capacity (diagnostic test)

5.3.1 Stage 1

Does the person have an impairment of, or a disturbance in the functioning of, their mind or brain?

(It does not matter whether the impairment or disturbance is permanent or temporary) if ‘no’, the person cannot be assessed as lacking capacity. If ‘yes’, proceed to stage two).

5.3.2 Stage 2

The second part of the capacity test involves assessing whether a person who is suffering from some sort of mental impairment or disturbance is consequently unable to make the decision in question at the time it needs to be made. A person’s ability to make a decision is assessed by applying the four stage (functional test) set out below.

Before a person is asked to reach a particular decision, they must be given all of the relevant information they need to make a fully informed decision.

The person will be unable to make a decision for themselves if they are unable to do any one of the following four things:

• understand information relevant to the decision to be made, a person is not to be regarded as being unable to make a decision if she or he is able to understand through the use of appropriate means for example; using simple language, visual aids etc.
• retain that information, the fact that the person is only able to retain the information for a short period of time does not prevent him or her from being able to make a decision
• use and weigh up the information, as part of the process of making that decision. It is not enough to just understand and retain the information the person needs to be able to consider the consequences of the decision
• be able to communicate that decision, all attempts should be made to enable a person to communicate their decision, this may include, visual aids, non-verbal gestures etc. A complete inability to communicate is rare. However, in these circumstances the act is clear that a person should be treated as if they are unable to make a decision

An answer no to any one of the above will constitute a lack of capacity to make a particular decision. Any question whether a person lacks capacity must be decided on the balance of probabilities. However you must be satisfied that there is a causal link between the disturbance or impairment and the inability to make the decision in question.

A person is not to be regarded as unable to understand the information relevant to a decision if they are able to understand an explanation of it given to them in a way that is appropriate to their circumstances (for example, by using simple language, visual aids or any other means).

The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent them from being regarded as able to make the decision. Capacity may be established where a person is able to understand and retain information long enough to make an informed decision.

The information relevant to a decision includes information about the reasonably foreseeable consequences of:

• deciding one way or another
• failing to make the decision

There are several further factors which must be taken into account when assessing capacity:

5.4 Fluctuating or temporary capacity

A person’s mental capacity can fluctuate or be temporarily impaired due to mood or depression or an underlying physical disorder, for example, urinary tract infection. When assessing capacity, a view should also be taken whether the person might regain capacity in the future, and if so, when this is likely to be. If the decision can be postponed until the person regains capacity, it should be postponed, to allow the person to reach their own decision at that later time.

5.5 Specific decision

A person may have the capacity to make some decisions but not others. A person’s capacity should be assessed in the context of the specific decision that needs to be made. For example, a person might have the necessary mental capacity to decide what to wear or what to eat, but might lack the capacity to take more serious decisions regarding where to live or what medical care they should receive.

5.6 Relevant information

Any information relevant to the decision should be provided in a format that the person is best able to understand. See the trust flash cards for guidance around the information relevant to a number of specific decisions.

5.7 Undue pressure

Carers or other family members may sometimes exert pressure on trust staff to treat a patient as lacking capacity to take certain decisions and to care for them as the family would wish. Trust staff must not be influenced by such pressure, but must instead reach their own view as to the patient’s capacity by applying the principles set out in the MCA, the code of practice and this document. However, the carers’ and family members’ views will be relevant when considering what might be in the best interests of an incapacitated patient.

5.8 A lack of trust

A person may feel anxious about having their capacity assessed. If so they should have access to independent support, advice or advocacy in these circumstances.

5.9 Further guidance

A flow chart in appendix A gives an overview of the process to follow when a patient’s capacity is in question.

Some of the key principles to bear in mind when assessing capacity are as follows:

• a person’s capacity must be assessed specifically in relation to their capacity to make a particular decision at the time it needs to be made; If a decision can wait until a person has capacity to make the decision, then the decision should be deferred until then
• a person’s capacity must not be judged simply on the basis of their age, appearance, condition or an aspect of their behaviour
• it is important to take all possible steps to try to help people make a decision for themselves, for example:
  • would the person have a better understanding if information was explained or presented in another way?
  • are there times of day when the person’s understanding is better?
  • are there locations where they may feel more at ease?
  • can anyone help the person to express a view or make a choice? (a family member or carer or someone to help with communication)

5.10 Recording assessments

Not all assessments of capacity need to be formally recorded. In general terms, decisions concerning matters of day to day personal care and normal activities of daily living for an incapacitated person will not normally need to be formally recorded and can be included in the patients care plan or notes providing there is evidence that the 2 stage test has been applied.

Examples might include choosing what clothes the person should wear or deciding what the person should eat for lunch or consent to medical treatment where there are no significant risks. This can also include decisions about consent to assessment, sharing information, taking photographs etc. In order to document and structure the assessment process in a formal and clear way, RDaSH in collaboration with the Doncaster Safeguarding Adults Partnership Board developed a pro forma (form MCA 1) as a means for evidencing assessment of capacity. This enables those staff and other individuals involved in carrying out such an assessment to evidence how they came to their conclusion.

Assessments of capacity in relation to significant decisions or decisions to which the person is objecting must be fully recorded on the MCA1 form on SystmOne, which can be located via the MCA tab.

The following are some examples of some significant decisions where assessments of capacity must always be formally recorded:

• serious medical treatment decisions, including withdrawing or withholding treatment
• medical treatment for mental disorder which is not being provided under the MHA
• medical treatment for a physical condition which has serious risks or consequences
• medical treatment for a detained patient where the proposed treatment is not for their mental disorder or any symptom of their mental disorder. The medical treatment therefore being provided under MCA
• change of accommodation decisions
• decisions which may involve restricting the liberty of patients (use of restraint)
• decisions which involve restricting contact with others
• decisions which involve a deprivation of liberty which is not authorised under the MHA
• decisions to which the person is objecting which are not authorised by the MHA
• decisions where there are issues of dispute with family members or other interested parties
• any other complex decisions which have an impact on the patient’s rights and freedoms

The outcome of any assessment of a person’s capacity must be clearly recorded in their health records. Staff should also refer to the trust’s policy, consent to examination or treatment.

5.11 Decision maker

Where a person is assessed as lacking the capacity to make a particular decision, the MCA stipulates that whatever act is done or decision is made on behalf of that person must be done or made in the person’s best interests. The person who decides what would be in the person’s best interests is referred to in the code of practice as the “decision-maker”.

The decision-maker in any given case will be the person who is proposing taking action in connection with the care or treatment of an adult who lacks capacity, or who is contemplating making a decision on their behalf. The identity of the decision maker will depend upon the nature of the proposed action and the context in which it is proposed for example:

• where the decision relates to medical treatment, the doctor proposing the treatment will be the decision maker
• where nursing care is provided and a decision about nursing care needs to be reached, the nurse will be the decision-maker
• if the person has a care manager or care co-ordinator, they will generally be the decision maker on general issues of welfare and finance
• for most other day-to-day actions or decisions, the decision-maker will be the person directly involved with the person at the time

5.12 Best interests

Everything that is done for or on behalf of a person who lacks capacity must be in that person’s best interests. The MCA provides a best interest’s checklist of factors that decision-makers must work through in deciding what is in an incapacitated person’s best interests. A person can put his or her wishes and feelings into a written statement if they so wish, which must be considered by the decision maker. Also, carers and family members have a right to be consulted.

All of the factors in the best interest’s checklist must be taken into account by the decision-maker when reaching a decision as to best interests. In addition, the decision-maker must take into account any other factors that are relevant in the circumstances and, in particular, must take the steps set out below.

5.12.1 The best interests checklist

• Encourage participation, do whatever possible to permit and encourage the person to take part, or to improve their ability to take part, in making the decision.
• Find out the person’s views, consider, insofar as can reasonably be ascertained:
  • the person’s past and present wishes and feelings, which may have been expressed verbally, in writing or through behaviour or habits (including any written preferences or wishes set out in an advanced statement (see trust’s advance statements and advance decisions to refuse treatment policy)
  • any beliefs and values (for example, religious, cultural, moral or political) that would be likely to influence the decision in question
  • any other factors the person themselves would be likely to consider if they were making the decision themselves
• Consult others, if it is practical and appropriate to do so, consult other people for their views about the person’s best interests to see if they have any information about the person’s wishes, feelings, beliefs and values. In particular, try to consult:
  • anyone previously named by the person as someone to be consulted on either the decision in question or on similar issues
  • anyone engaged in caring for the person
  • close relatives, friends or others who take an interest in the person’s welfare
  • any attorney appointed under a lasting power of attorney made by the person
  • any deputy appointed by the Courts of Protection to make decisions for the person
  • an independent mental capacity advocate (IMCA) must be appointed and consulted for people lacking capacity who have no one else to support them where a change of accommodation is being proposed. An IMCA may also be appointed to support someone who lacks capacity for care reviews and in adult protection cases where there is no one else available to consult

Other important principles to remember when assessing what are in an incapacitated person’s best interests are:

• avoid discrimination, do not make assumptions about somebody’s best interest simply on the basis of their age, appearance, condition or behaviour
• assess whether the person might regain capacity, consider whether the person is likely to regain capacity (for example, after receiving medical treatment). If so, can the decision wait until then?
• if the decision concerns life sustaining treatment, the decision must not be motivated in any way by a desire to bring about the person’s death. They should not make assumptions about the person’s quality of life

5.13 Recording best interests

Not all best interests’ decisions need to be formally recorded. In general terms, best interests’ decisions concerning matters of day to day personal care and normal activities of daily living for an incapacitated person will not normally need to be formally recorded and can be included in the patients care plan or notes providing there is evidence of the best interests checklist being considered.

Examples might include choosing what clothes the person should wear or deciding what the person should eat for lunch or consent to medical treatment where there are no significant risks.

For all other more significant decisions or decisions to which the person is objecting, staff should use the MCA2 form on SystmOne which can be located via the MCA tab to fully record the decision-making process to evidence that they applied the best Interests checklist.

The following are some examples of best interests’ decisions that must always be formally recorded:

• serious medical treatment decisions, including withdrawing or withholding treatment
• medical treatment for mental disorder which is not being provided under the MHA
• medical treatment for a physical condition which has serious risks or consequences
• medical treatment for a detained patient where the proposed treatment is not for their mental disorder or any symptom of their mental disorder. The medical treatment therefore being provided under MCA
• change of accommodation decisions
• decisions which may involve restricting the liberty of patients (use of restraint)
• decisions which involve restricting contact with others
• decisions which involve a deprivation of liberty which is not authorised under the MHA
• decisions to which the person is objecting which are not authorised by the MHA
• decisions where there are issues of dispute with family members or other interested parties The MCA2 form should be completed each time a new best interests’ decision is required

5.14 Disputes

Sometimes there might be disagreement or dispute as to what would be in the best interests of an incapacitated person, for example between clinicians and family members. In the event of a dispute, staff should seek local resolution if at all possible. The following may assist the decision maker to resolve the dispute:

• involve an advocate who is independent of all parties involved
• get a second opinion as to capacity and, or best interests
• hold a strategy meeting of all involved

Where local resolution of a dispute is not possible despite all efforts of the decision-maker, advice should be sought from line management and the MCA lead. In such cases the MCA lead should be consulted as soon as possible and where necessary a strategy meeting convened to decide whether formal legal advice is required.

The Court of Protection has jurisdiction to resolve disputes as to the capacity and, or best interests of an incapacitated person, and an application to the court might be necessary in some cases.

5.15 Legal protection for action done in best interests

Where care or treatment is provided for someone who lacks capacity, that care (including any actions that would normally require consent such as assistance with bathing and dressing, as well as providing medical treatment) can only be provided without incurring civil or criminal liability where the ‘decision-makers’ take reasonable steps to establish whether the person lacks capacity in relation to the matter in question and when giving care or treatment, the decision maker reasonably believes that the person lacks capacity and that it will be in the person’s best interest in the care or treatment to be provided.

The MCA gives legal protection to health and social care staff who take action in connection with the care or treatment of a person who lacks capacity. A staff member will have legal protection under the MCA where they:

• have taken reasonable steps (applying the principles of the MCA and the Code of Practice) to establish whether the person has capacity in relation to the matter in question
• when carrying out the action, the staff member reasonably believes the person lacks capacity in relation to the matter, and that it will be their best interests in the act to be done

However there are certain limitations on the legal protection that the MCA provides. In particular, restraint:

• actions which involve restraint of a person who lacks capacity will only be justifiable under the MCA where certain further conditions are satisfied

These are dealt with in section below.

5.16 Restraint or deprivation of liberty

Under the MCA restraint can be authorised if it is necessary and proportionate, but not where it amounts to a deprivation of liberty, unless the person is being deprived of their liberty in an emergency to provide life sustaining treatment, or perform some other vital act, whilst an application is made to the Court of Protection.

Section 6 of the MCA defines restraint as either:

• the use or threat of force to make an incapacitated person do something that they are resisting
• any restriction of an incapacitated person’s freedom of movement, whether the person resists

Restraint of an incapacitated person is only permitted under the MCA if:

• the person using it reasonably believes that the restraint is necessary to prevent harm to the incapacitated person
• the amount or type of restraint used, and the duration of that restraint, is proportionate to the likelihood and seriousness of the harm

Restraint of an incapacitated person will only be justifiable if these 2 conditions are satisfied, regardless of whether staff believe that restraint would be in the best interests of an incapacitated person.

The MCA does not provide any protection for an act which deprives an incapacitated person of his or her liberty. “Deprivation of liberty” is undefined in the MCA, but in general terms an incapacitated person will be deprived of their liberty where action is taken that amounts to more than mere restraint under the definition above.

Provisions concerning deprivation of liberty of persons who lack capacity were introduced in April 2009. Depriving a person of his or her liberty is subject to the meaning of article 5(1) of the European Convention on Human Rights. Therefore, if staff are concerned that a patient is or might be deprived of their liberty they should refer to the trusts MCA deprivation of liberty (DoL) policy. Further advice and guidance should be sought from the MCA lead.

5.17 Advance decisions to refuse treatment

The act has created statutory rules with clear safeguards so that individuals can make decisions in advance to refuse treatment if they should ever lack capacity. The decision must be made by a person who is 18 years or over at the time when the person has capacity to make it and it must specify the treatment to be refused. This advance decision may be withdrawn by the person at any time by any means.

If there is any doubt as to the validity or applicability of the advance decision then it should be referred to the Court of Protection for the court to decide (this policy should be read in conjunction with trust advance statements and advance decisions to refuse treatment policy).

5.18 Advance statements

An advance statement is a document which is completed by a patient, at a time when they have the necessary mental capacity, to make known their wishes regarding care, treatment and other personal matters should they become unwell.

Unlike an advance decision, an advance statement will not set out to specify which types of care or treatment the person does not want to receive if they should lose capacity in the future. If a person wishes to stipulate which types of treatment they should not be given when they lack capacity, they should be advised to make a valid and applicable advance decision.

The purpose of an advance statement is to:

• set out the person’s wishes and preferences in terms of medical treatment and relapse management
• identify those trusted relatives, carers and, or advocates who may be contacted in an emergency or consulted with by health professionals
• indicate what practical arrangements the individual may wish to have addressed if admitted to hospital, for example, regarding care of dependents, safeguarding their home and managing their possessions

Unlike an advance decision, an advance statement will not be legally binding upon health or social care professionals. However, the MCA states that when reaching a best interests decision concerning a person who lacks capacity, a decision maker must have regard to any relevant written statements made by that person at a time when they had capacity. Decision makers will therefore be under a duty to consider the content of an advance statement when reaching a best interests decision.

An advance statement is a document that a person can write themselves, with help from their care co-ordinator or any other person. It can be written as part of a care co-ordination review, or at any other time. The trust has a standard form for advance statements that make them easy to do and this can be found in Advance Decision to Refuse Treatment and Advance Statements for However, advance statements can be written in any format.

5.19 Excluded decisions

Section 27 of the Mental Capacity Act lists certain decision that can never be made on behalf of a person who lacks capacity. These include:

• consenting to marriage or civil partnership
• consenting to sexual relations
• consenting to a decree divorce being granted on the basis of two years separation
• consenting to a dissolution order being made in relation to a civil partnership on the basis of a two years separation
• consenting for a child being placed for adoption by an adoption agency
• consenting to the making of an adoption order
• discharging parental responsibilities in matters not relating to a child’s property
• giving consent under the Human Fertilisation and Embryology Act 1997

5.20 Mental Health Act (1983)

Section 28 of the Mental Capacity Act says nothing in the act authorises anyone to consent to a patient being given medical treatment for a mental disorder if, at the time when it is proposed to treat the patient, the treatment is regulated by part 4 of the Mental Health Act 1983

5.21 Criminal offence, ill treatment or wilful neglect

The act introduces 2 new criminal offences. These are:

• ill treatment of a person who lacks capacity
• wilful neglect of a person who lacks capacity

These offences may be committed by:

• anyone responsible for that person’s care
• any donee of lasting power of attorney, or enduring power of attorney
• any deputy appointed by the court
• there is no specified lower age limit. Any person found guilty of such an offence may be liable to imprisonment for a term of up to five years

5.22 Payment for goods and services

Staff should be aware that previous legislation and common law rules have now been brought together by the Mental Capacity Act regarding a person lacking capacity and the purchase of ‘necessaries’ in terms of goods and services. The Mental Capacity Act makes it clear that a person lacking capacity must pay a ‘reasonable price’ for goods and services supplied to them. A person who is acting under section 5 Mental Capacity Act may arrange something for a person’s care or treatment and promise that the person receiving the care and, or treatment will pay for it. This is restating the common law rules which provide that a person acting as an ‘agent of necessity’ should not be out of pocket for acting in good faith.

The Mental Capacity Act does not provide a person acting for an individual lacking capacity to access that individual’s bank or building society account. Formal steps may be taken to arrange this, for example, registering a power of attorney or obtaining a court order.

5.23 Research

The MCA sets out a legislative framework to cover situations where “intrusive” research is to be carried out on or in relation to a person who lacks capacity. “Intrusive” research is any research which would ordinarily require a person’s consent to be undertaken lawfully. However it does not include clinical trials, which continue to be covered by the Medicines for Human Use (Clinical Trials) Regulations 2004.

Research covered by the MCA cannot include people who lack capacity to consent to the research unless it has the approval of the “appropriate body”. This will be the relevant Research Ethic Committee (“REC”). Approval will only be granted where certain conditions set out in the MCA are satisfied.

Research covered by the MCA must also follow the requirements of the MCA to:

• consult with and consider the view of carers and others as to an incapacitated person’s involvement in the research project
• treat that person’s interests as paramount
• respect any objections of the person during the research

The research provisions of the MCA are complex and cannot easily be summarised here. For more guidance see MCA Code of Practice chapter 11.

5.24 Independent mental capacity advocate (IMCA)

The IMCA provides additional representation and support to incapacitated persons in certain clearly defined circumstances.

The MCA places a duty upon decision-makers to consult with those close to an incapacitated person when deciding what course of action might be in that person’s best interests. However, some incapacitated people may not have anyone close to them (for example, no close family or friends) with whom a decision maker might consult when deciding upon best interests.

Health and social care staff are under a duty to instruct an IMCA to represent and support an incapacitated person in the following circumstances:

An IMCA must be instructed, and then consulted, for people lacking capacity who have no one else to support them (other than paid staff), whenever:

• an NHS body is proposing to provide, withhold or stop serious medical treatment
• an NHS body or local authority is proposing moving a person into long term care in hospital (where the hospital stay will be longer than 28 days) or a care home (where the care home stay will be more than a week)
• an NHS body or local authority is proposing moving the person to a different hospital or care home

The only exception to this can be in situations where an urgent decision is needed to safeguard the person who lacks capacity as a matter of urgency.

An IMCA may be instructed to support someone who lacks capacity to make decisions concerning:

• care reviews, where no one else is available to be consulted
• adult protection cases, whether family, friends or others are involved

5.24.1 Serious medical treatment

Where an NHS body is proposing to provide, or secure the provision of, “serious medical treatment” for an incapacitated person, and where that NHS body is satisfied that there is no one other than a paid carer with whom it would be appropriate to consult in determining what would be in the person’s best interests, an IMCA must be instructed to represent the patient.

“Serious medical treatment” is defined as treatment which involves providing, withdrawing or withholding treatment in circumstances where either:

• there is a fine balance between the benefits and burdens or risks to the patient
• where there is a choice of treatments, the decision as to which one is finely balanced
• what is proposed would be likely to involve serious consequences for the patient

However there will be no duty to instruct an IMCA where serious medical treatment is provided under Part IV of the Mental Health Act 1983.

5.24.2 Long term accommodation by the NHS

Where a NHS body proposes to accommodate an incapacitated person in a hospital where the patient meets the acid test and is deprived of their liberty legal authority must be obtained for the deprivation. This can be through the MHA, DoLS or an order from the Court of Protection. The most appropriate legislation must be used which best meets the patient’s individual circumstances. If appropriate an IMCA will be instructed in line with legal process. Staff should refer MCA deprivation of liberty (DoL) policy for information and systems surrounding these safeguards.

However there will be no duty to instruct an IMCA where accommodation is provided under part IV of the Mental Health Act 1983.

5.24.3 Long term accommodation by a local authority

Where a local authority proposes to accommodate an incapacitated person in a care home (or move them to another care home) where the patient meets the acid test and is deprived of their liberty legal authority must be obtained for the deprivation. This can be through the DoLS or an order from the Court of Protection. If appropriate an IMCA will be instructed in line with legal process.

Staff should refer to trusts MCA deprivation of liberty (DoL) policy for information and systems surrounding these safeguards.

5.24.4 Accommodation or care reviews

• The LA or the NHS must have arranged the original accommodation.
• The person whose accommodation is being reviewed must lack the capacity to make a decision about accommodation.
• There is no other person appropriate to consult.

5.24.5 Safeguarding adult cases

Local authorities and the NHS have discretionary powers to instruct an IMCA to support and represent adults who lack capacity to agree to one or more of the protective measures being proposed where either:

• it is alleged that the person is or has been abused or neglected by another person
• it is alleged that the person is abusing or has abused another person and the person lacks capacity to consent to one or more of the proposed protective measure

In safeguarding adult’s cases access to IMCAs is not restricted to people who have no-one independent of services who can represent them. People who lack capacity who have family and friends can still have an IMCA to support them in the safeguarding procedures. Safeguarding managers have a duty to consider whether the person would benefit from the support of an IMCA. If they do not feel an IMCA is needed the reasons should be recorded in the persons notes.

In some situations both the alleged perpetrator and alleged victim of abuse could benefit from the support of an IMCA if they both lack capacity. It should not be the same IMCA who represents both. A conflict of interest could arise where two IMCAs are involved from the same organisation. Where two instructions are being considered the safeguarding manager should discuss this with the local IMCA provider. They should identify how the conflict of interest could be managed.

5.24.6 Deprivation of liberty safeguards

IMCAs can also be appointed by the supervisory body (local authority) where a person is subject to, or being assessed under the deprivation of liberty safeguards.

5.24.7 Role of the independent mental capacity advocate

The role of the independent mental capacity advocate (IMCA) is to:

• be independent of the person making the decision
• provide support for the person who lacks capacity so they can participate as fully as possible in any relevant decision
• obtain and evaluate relevant information
• ascertain what the person’s wishes, feelings and beliefs may have been, and the beliefs and values that might have influenced them if they had capacity
• seek the views of the professional involved in the persons care
• ensure all options have been explored
• ascertain any alternatives or course of action available
• represent the person without capacity in discussions about whether the decision to be made is in the person’s best interest
• provide information in the form of a report to the decision maker to enable them to work out what is in the person’s best interest
• raise questions or challenge decisions which appear not to be in the person’s best interest

5.24.8 Ensuring an independent mental capacity advocates views are taken into consideration

The IMCA’s role will include interviewing the person who lacks capacity, if possible, as well as examining relevant health and social care records, plus obtaining the views of professionals providing care or treatment for the person who lacks capacity and obtaining the views of anyone else who can give information about the wishes, feelings, beliefs or values of the person who lacks capacity. The IMCA should also consider whether obtaining another medical opinion would help the person who lacks capacity and must write a report on their findings for the NHS body or local authority concerned.

IMCAs have the right to see relevant health care and social care records. Any information or reports provided by an IMCA must be taken into account as part of the process of deciding whether a proposed decision is in the incapacitated person’s best interest.

5.24.9 Duty to instruct an independent mental capacity advocate

All relevant staff should know when they need to instruct an IMCA.

When an important decision needs to be made in the best interests of a patient who lacks capacity staff should consider before they start the best interests process whether an IMCA needs to be instructed.

See attached flow chart, appendix C when must an IMCA be instructed and appendix C1, IMCA involvement process.

See appendix D for further guidance and details of how to make a referral.

5.25 Lasting powers of attorney (LPAs)

Any person aged 18 or over with capacity can appoint an attorney (or more than one attorney) to make decisions about their personal welfare and, or their property and affairs if they lose capacity to make such decisions themselves in the future. Under a lasting power of attorney, the appointed person (known as the’ attorney’ or ‘donee’) can make decisions that are as valid as one made by the person granting the power of attorney (the ‘donor’).

From 1 April 2007 no new enduring powers of attorney (EPA) could be created however an EPA drawn up before 1 April 2007 can still be used in relation to property and affairs only provided it has been registered with the Office of the Public Guardian.

Lasting powers of attorney can cover two different types of decision-making:

• property and affairs (including financial matters)
• personal welfare decisions (including healthcare and consent to medical treatment)

In order to be valid, a lasting power of attorney must:

• be a written document set out in the form required by the Mental Capacity Act
• must be registered with the Office of Public Guardian (OPG) before it can be used. An unregistered LPA will not give the attorney any legal powers to make a decision for the donor. The donor can register the LPA whilst they are still capable, or the attorney can apply to register the LPA at any time

5.25.1 Checking validity

When dealing with a person who claims to be an attorney of an incapacitated person under a LPA, trust staff should ask to see a copy of the LPA which has been stamped by the Office of the Public Guardian to confirm it has been registered. Staff should also check the stamped LPA to confirm the nature and extent of the attorney’s authority to take decisions.

5.25.2 Searching the register

If staff are unsure if an LPA is registered a request can be made to search the registers. The search is free. To request a search, you must complete form OPG100. The form is available at GOV.uk (opens in new window).

Personal welfare LPAs can include decisions about where the donor should live and who they should live with, their day-to-day care and consenting to or refusing medical treatment on the donor’s behalf. Donors can add restrictions or conditions to areas where they would not wish the attorney to have power to act.

Attorneys are always required to follow the principles in the Mental Capacity Act and must make decisions in the donor’s best interests. Importantly, the decisions of an attorney about whether to consent to or refuse medical treatment will ‘trump’ that of the incapacitated person’s clinical team. However, if healthcare staff disagree with the attorney’s assessment of best interest, they should consider obtaining a second opinion and should then discuss the matter further with the attorney. If the disagreement cannot be settled, an application can be made to the Courts of Protection which can decide where the individual’s best interests lie. Whilst an application is being made to the Court of Protection, healthcare staff can give life sustaining treatment to prolong the donor’s life or to stop their condition getting worse.

Even where the LPA include healthcare decisions, attorneys do not have the right to consent to or refuse treatment in situations where:

• the donor still has capacity to make the particular healthcare decision
• the donor has made an advance decision to refuse the proposed treatment, unless the donor made the LPA giving the attorney the right to consent to or refuse the treatment after the advance decision was made
• a decision relates to life sustaining treatment unless the LPA document expressly authorises the attorney to consent to or refuse life sustaining treatment
• the donor is detained under the MHA, in which case an attorney cannot consent to or refuse treatment for a mental disorder for a patient detained under the MHA (although there is an exception for ECT treatment, see section 58A of the MHA)
• LPAs cannot give attorneys the power to demand specific forms of medical treatment that healthcare staff do not believe are necessary or appropriate.

5.26 Court of protection

The Court of Protection is a specialist court, setup under the Mental Capacity Act, to deal with issues relating to decision-making on behalf of people who lack capacity. The powers of the Court of Protection include:

• making declarations (for example, rulings), decisions and orders about financial and personal welfare matters affecting people who lack capacity, or who are alleged to lack, capacity
• appointing deputies to make decisions for people who lack capacity
• removing deputies or attorneys who act inappropriately

An application to the Court of Protection may be necessary where there is genuine doubt or disagreement about a person’s capacity or about what is in their best interests. The Court of Protection can also make decisions about the validity and applicability of advance decisions where this is in doubt. Cases involving any of the following specific decisions should also be brought before the Court of Protection:

• decisions about the proposed withholding or withdrawal of artificial nutrition and hydration from patients in a permanent vegetative state where someone is objecting
• cases involving organ or home marrow donation by a person who lacks capacity
• cases involving proposed non-therapeutic sterilisation of a person who lacks capacity (for example, for contraceptive purposes)

Prior to referring a matter to the Court of Protection, reasonable attempts should be made to resolve differences of opinion between healthcare staff, or between staff and family members. Consideration should be given, for example:

• obtaining an independent second opinion
• holding a case conference involving staff and family members

5.27 Court-appointed deputies

The MCA provides for a system of court-appointed deputies. Deputies are able to take decisions on welfare, healthcare and, or property or financial matters as authorised by the court.

A deputy will only be appointed if the court cannot make a one-off decision to resolve the issues. A deputy may be appointed by the court to take decisions concerning the personal welfare of an incapacitated person. This might include decisions regarding the health or social care the incapacitated person is to receive. Health and social care staff will be required to go along with the decisions a deputy takes, as long as the deputy acts within the scope of the authority he or she has been given by the court. However, in cases of significant disagreement, the case may be referred to the Court of Protection.

However a deputy does not have the power under any circumstances to refuse consent to life-sustaining treatment for an incapacitated person.

A deputy also cannot refuse consent to treatment given to a detained patient under part IV of the MHA unless it is for treatment of ECT under S58A.

Deputies are under a duty to have regard to the code of practice and to act in accordance with the incapacitated person’s best interests.

When dealing with a person who claims to be the court-appointed deputy of an incapacitated person, trust staff should ask to see and take a copy of the sealed court order which gives the deputy their authority. Staff should also check the order to confirm the nature and extent of the attorney’s authority to take decisions. All deputies are provided by the Court of Protection with extra copies of the order to demonstrate their authority when required.

6 Training implications

Training for use of this policy and issues relating to the MCA will be delivered as part of the trust’s mandatory training programme.

In order to raise awareness of the act all new starters to the trust will be provided an MCA leaflet on corporate induction. Following this all or both unqualified and qualified clinical staff are required to undertake mandatory training relevant to their role which is identified in the trust mandatory and statutory training policy and MCA training framework.

Training records will be kept by the learning and development team.

7 Monitoring arrangements

7.1 Training

• How: Training records.
• Who by: Mental health legislation training officer.
• Reported to: Mental health legislation operational group.
• Frequency: Annual.

7.2 Policy implementation

• How: Clinical audit.
• Who by: Clinical Audit team
• Reported to: Mental health legislation operational group.
• Frequency: Annual.

8 Equality impact assessment screening

To access the equality impact assessment for this policy, please email rdash.equalityanddiversity@nhs.net to request the document.

8.1 Privacy, dignity and respect

The NHS Constitution states that all patients should feel that their privacy and dignity are respected while they are in hospital. High Quality Care for All (2008), Lord Darzi’s review of the NHS, identifies the need to organise care around the individual, ‘not just clinically but in terms of dignity and respect’.

As a consequence the trust is required to articulate its intent to deliver care with privacy and dignity that treats all service users with respect. Therefore, all procedural documents will be considered, if relevant, to reflect the requirement to treat everyone with privacy, dignity and respect, (when appropriate this should also include how same sex accommodation is provided).

8.1.1 How this will be met

There is no requirement for additional consideration to be given with regard to privacy, dignity or respect.

9 Links to any other associated documents

• Advance statements and advance decisions to refuse treatment policy
• MCA deprivation of liberty (DoL) policy
• Consent to care and treatment policy
• Mental Health Act policies
• Safeguarding adults policy
• Records management policy
• Risk management framework
• Corporate and local service induction policy
• Reducing restrictive interventions (RRI) policy (formerly PMVA policy)

10 References

The Mental Capacity Act 2005 applies in conjunction with other legislation, under which health and social care staff have obligations relating to people who lack capacity, including:

• The Mental Capacity Act 2005 (MCA) (opens in new window)
• Mental Capacity Act Code of Practice (opens in new window)
• Mental Health Act 1983 (as amended by the MHA 2007) (opens in new window)
• Human Rights Act 1998 (opens in new window)
• Care Standards Act 2000  (opens in new window)
• National Health Service and Community Care Act 1990 (opens in new window) 
• The Children’s Act 1989 (opens in new window)

11 Appendices

11.1 Appendix A Assessing capacity process

1. What is the specific decision to be made?
2. Start from the assumption that the patient has the capacity to make this decision.
3. Take all practical steps to support the patient in a way that is most appropriate to for them to enable.
4. Where there is a doubt regarding the patient’s ability to make the decision, a formal assessment will need to be carried out.
5. Stage 1 diagnostic assessment, is there a permanent or temporary impairment of, or disturbance in, the functioning of the person’s mind or brain? If no, the decision can be made by the patient. If yes, and you believe it is effecting their ability to make this decision, carry out the functional test.
6. Identify the options available.
7. Identify the information relevant to each option.
8. Stage 2 functional test, can the patient:
   • understand information about the decision and the consequence of making it
   • retain the information long enough to use and weigh it up
   • use and weigh up the information as part of the decision-making process
   • communicate their decision by any means
9. Either:
   • the person has the capacity to make the decision, even if their decision seems unwise
   • the person does not have capacity to make the decision. A decision must be made in their best interests

11.2 Appendix B Best interest process

11.2.1 Appendix B1

1. Is the patient likely to regain capacity to make the decision themselves? can the decision wait?
   • yes, delay decision until patient can make it themselves. End process.
2. No, proceed to making the decision in their best interest.
3. Is the decision about medical treatment?
   • no, proceed to making the decision in their best interest. End process.
4. Yes, medical treatment, does the person have a valid and applicable advance decision to refuse the proposed treatment (ADRT)?
   • no, End process.
5. Yes, the patient’s decision to refuse the proposed treatment must be respected. Treatment should not be given. End process.

11.2.2 Appendix B2

1. Is the decision complex in nature, for example, serious medical treatment or change of accommodation or is anyone objecting to the proposals?
   • no, continue with best interest process. End process.
2. Yes, arrange a best interest meeting with all interested parties, follow best interest process.
3. Remember, if the person has no-one to support them you have a duty to request an IMCA for change of accommodation and serious medical treatment decisions. Safeguarding manager may also request an IMCA for patients who are subject to safeguarding adult procedures.
4. Yes, make referral to IMCA service.
5. Invite the IMCA to BI meeting.
6. Continue with best interest process. End process.

11.2.3 Appendix B3

1. Identify the available options.
2. Apply the best interest check list, encourage the person to be part of the best interest decision-making process.
3. Consider all the relevant circumstance.
4. Take into account the persons past and present wishes and feelings, beliefs and values.
5. Consider any additional factors that the person would take.
6. Consult with all interest parties.
7. Do not make any assumptions about the patient’s best interests simply on the basis of the patients age, appearance, condition, or behaviour.
8. Weight up these factors in order to work out what is in the patients best interests based on the option that is least restrictive of the person’s rights and freedoms. End process.

11.2.4 Appendix B4

1. Inform the patient and all interest parties of the decision made.
2. Is anyone objecting to the decision  which ahs been made?
   • no, identify any further actions and implement decision or carry out actions.
   • if the decision is about change of accommodation consider whether the patient will be deprived of their liberty
   • is the patient subject to continuous supervision and control and not free to leave?
   • yes, seek authorisation by the deprivation of liberty safeguards or the Court of Protection. End process
3. Yes, try to resolve any dispute.
   • matter resolved, identify any further actions and implement decision or carry out actions.
   • If the decision is about change of accommodation consider whether the patient will be deprived of their liberty.
   • Is the patient subject to continuous supervision and control and not free to leave?
   • yes, seek authorisation by the deprivation of liberty safeguards or the Court of Protection. End process
4. Unable to resolve, seek advice from MCA lead or legal.
5. If applicable arrange legal planning.
6. If applicable application to Court of Protection made. End process.

11.3 Appendix C When must an independent mental capacity advocate be instructed and involvement of an independent mental capacity advocate

11.3.1 Appendix C1 When must an independent mental capacity advocate be instructed

1. Does a decision need to made about serious medical treatment or long term change of accommodation?
   • no, not eligible but check other advocacy. End process
2. Yes, does the person lack capacity to make the decision?
   • no, not eligible but check other advocacy. End process
3. Yes, does the person have anyone to consult on their behalf?
   • yes, not eligible but check other advocacy. End process
   • no, duty to instruct an IMCA. End process

11.3.2 Appendix C2 Involvement of an independent mental capacity advocate

1. Refer for IMCA, a decision-maker (DM) identifies need for an IMCA involvement at earliest opportunity and instructs IMCA by referral. DM attaches completed MCA1 to referral form. DM to inform IMCA of any proposed dates or deadlines.
2. Explore options, IMCA will contact DM and other involved professionals to determine the options being explored and the potential benefits and burdens of each option. For medical treatment decisions the IMCAA may ask for a second opinion where appropriate.
3. Involve person, the IMCA will meet with the person and support them to be as involved in the decision as possible. The IMCA will make every effort to ascertain the person’s views, wishes and preferences (past and present) in regard to the proposed decision. The IMCA will work with all parties to ensure that the person is kept at the centre of the decision-making process.
4. IMCA report, the IMCA will submit a formal report of their finding to the DM. The DM is able to make a best interest decision once they have taken into consideration the IMCA’s report, the views and wishes of the person, views and information from any other people relevant to that person’s care and treatment, and the best interest checklist.
5. Decision-making, DM to IMCA of decision made and how IMCA report was considered. The IMCA may challenge a decision, either informally or formally, where there are concerns around someone’s capacity and, or that the decision does not reflect the best-interest decision-making process. The IMCA will close the case once they have informed of the best-interest decision. End process.

11.4 Appendix D Guidance on instructing an independent mental capacity advocate

11.4.1 Serious medical treatment

Serious medical treatment is that which involves:

• giving new treatment
• stopping treatment that has already started
• withholding treatment that could be offered

And where there is either:

• a fine balance between the benefits and the burdens and risks of a single treatment
• a choice of treatments which are finely balanced
• what is proposed would be likely to involve serious consequences

The code of practice lists the following examples of possible serious medical treatments:

• chemotherapy
• electro-convulsive therapy
• therapeutic sterilisation
• major surgery (such as open-heart surgery or brain or neurosurgery)
• major amputations (for example, loss of an arm or leg)
• treatments that will result in permanent loss of hearing or sight
• withholding or stopping artificial nutrition and hydration
• termination of pregnancy

Any decision not to offer the above treatments would similarly require the involvement of an IMCA.

The MCA Code of Practice recognises that the judgment whether a treatment is serious will vary depending on the general health of the person and other complicating factors.

11.4.2 How do independent mental capacity advocates work with serious medical treatment decisions?

The IMCA:

• checks whether the best interests principle has been followed
• ensures the person’s wishes and feelings have been considered
• seeks a second medical opinion if necessary

11.4.2.1 Serious consequences

Serious consequences refer to those which could have a serious impact on the person. It includes treatments that:

• cause serious and prolonged pain, distress or side effects
• have potentially major consequences for the patient (for example, major surgery or stopping life-sustaining treatment)
• have a serious impact on the patient’s future life choices (for example interventions for ovarian cancer)

11.4.3 Long-term accommodation moves

The right to an IMCA applies to decisions about long-term accommodation in a hospital or care home if it is either:

• provided or arranged by the NHS
• residential care that is provided or arranged by the local authority under section 117 of the MHA
• a move between such accommodation

This applies if an NHS organisation or local authority decides to place a person who lacks capacity:

• in a hospital (or to move them to another hospital) for a stay likely to last longer than 28 days
• an NHS organisation proposes to place a person who lacks capacity in a care home, or to move them to a different care home, for what is likely to be more than eight weeks

This may be accommodation in a care home, nursing home, ordinary and sheltered housing, housing association or other registered social housing, or in private sector housing provided by a local authority or in hostel accommodation.

Sometimes a person placement will be longer than expected. If so, staff should involve an IMCA as soon as it is realised that the stay will be for longer than 28 days or eight weeks, as appropriate.

If the placement or move is urgent, an IMCA need not be instructed, but the decision-maker must involve an IMCA as soon as possible after making an emergency decision if the person is likely to stay in hospital longer than 28 days or longer than eight weeks in other accommodation.

For further guidance click on link to SCIE guide 39, IMCA involvement in accommodation decisions and care reviews (opens in new window).

11.4.3.1 Appropriate person

In most cases where there is a duty to refer to an IMCA, the person lacking capacity is only entitled to the IMCA if they have no appropriate person to consult in relation to the decision. This may include:

• where the person has family but it is not practicable to consult them as they live in another country
• they have very little contact with the person and have limited knowledge of them
• family is unwilling to be consulted

If the person has family or friends to consult and they disagree with what is being proposed, this is not a reason to class them as “inappropriate” to consult as part of the best interests process.

11.4.3.2 Self-funders

The Code of Practice (10.56) says IMCAs should be instructed for people who fund all their own accommodation, if the local authority:

• carries out an assessment under section 47 of the NHS and Community Care Act 1990
• decides it has a duty to the person (under either sections 21 or 29 of the National Assistance Act 1947 or section 117 of the MHA1983)

11.4.3.3 Exclusions for people subject to the Mental Health Act (1983)

An IMCA does not need to be instructed for an accommodation decision if the person is being required to stay in the accommodation under the Mental Health Act (MHA) 1983. This includes detention in hospital under section 2 (assessment) or section 3 (treatment). It also includes guardianship orders which specify where a person should live.

An IMCA may be required to represent a person when they are discharged from hospital. This includes when the accommodation is made under section 117 (aftercare arrangements), if there is no requirement for the person to live in the proposed accommodation, for example, the person, if they had capacity, would be able to exercise a choice.

11.4.4 Care reviews

NHS bodies and local authorities have a discretionary power to request an IMCA when a person lacks capacity and they are involved in a review of their care.

Reviews include:

• care reviews for people in accommodation arranged by the local authority
• reviews undertaken by CCGs for those people who are receiving continuing healthcare (CHC)
• care plan reviews undertaken by NHS trusts for inpatients

The requirements are:

• the person lacks capacity to make a decision about their accommodation
• there are no family and friends who are appropriate to consult
• the person has been staying, or is likely to stay, in the accommodation for a continuous period of more than 12 weeks

This power does not apply if the person is required to live in the accommodation while detained under the MHA 1983 or if they are subject to an authorisation under the deprivation of liberty safeguards.

Where a person meets the requirements for IMCA instruction in care reviews, local authorities and NHS trusts must consider in every case whether to use this power based on their assessment of the potential benefit to the person. If the power to instruct an IMCA is not used, it is good practice to record the reasons why in the care review record.

11.4.4.1 When should reviews take place?

Because needs are likely to change over time, local authorities are expected to undertake regular reviews. Good practice is to undertake a review within three months of a person moving to new accommodation or where there have been other major changes to the support plan. Otherwise, reviews should take place at least annually.

For people receiving continuing healthcare, it is recommended that reviews should similarly take place by the relevant CCG (CHC) within three months of the decision to provide continuing health care, and then at least annually.

For hospital patients it may be appropriate for the reviews to be more frequent.

11.4.5 Safeguarding adult’s cases

11.4.5.1 When should an independent mental capacity advocate be appointed in safeguarding cases?

Government guidance recommends that an IMCA should be instructed if one of the following applies:

1. Where there is a serious exposure to risk:
   • risk of death
   • risk of serious physical injury or illness
   • risk of serious deterioration in physical or mental health
   • risk of serious emotional distress
2. Where a life-changing decision is involved and consulting family or friends is compromised by the reasonable belief that they would not have the person’s best interests at heart.
3. Where there is a conflict of views between the decision-makers regarding how best to protect the person.
4. Where there is a risk of financial abuse which could have a serious impact on the person at risk’s welfare. For example; where the loss of money would mean that they would be unable to afford to live in their current accommodation, or to pay for valued opportunities.

The local authority must be thinking about, or already taken protective measures for the person.

Before making an instruction for safeguarding adults, it is necessary to assess the person as lacking capacity for at least one protective measure which is either being considered or has been put in place. Examples of protective measures may include (but are not limited to):

• restrictions on contact with certain people temporary or permanent moves
• the police interviewing the person or collecting forensic evidence which may support a prosecution
• increased support or supervision
• an application to the Court of Protection
• restrictions on accessing specific services places
• access to counselling or psychology with the aim of reducing the risk of further abuse

For further guidance click on link to SCIE guide 32, practice guidance on the involvement of IMCAs in safeguarding adults (opens in new window).

Protective measures may constitute a deprivation of the person at risk’s liberty. Where this is a possibility and the measure involves a move to a care home or hospital, the requirements of the deprivation of liberty safeguards need to be followed and an IMCA appointed by the supervisory body.

For further guidance click on link to SCIE guide 41, IMCA in the DOLS process (opens in new window).

11.4.5.2 Good practice points

• Before instructing an IMCA, potential protective measures should be identified.
• The person’s incapacity to agree to at least one of the proposed protective measures needs to be established prior to the instruction of an IMCA.
• There is no statutory requirement for the IMCA service to have access to a copy of a mental capacity assessment before acting on the instruction.
• After the IMCA instruction there may be a need to undertake further mental capacity assessments.
• If the person is subsequently found to have capacity to consent to the protective measures being actively considered, the IMCA instruction should be withdrawn.

11.4.5.3 Other advocacy support

Where a person at risk is already supported by an advocate it is unlikely that an IMCA will be needed.

Depending on what other advocacy services are provided locally, there may be a choice between instructing an IMCA and involving another advocate. The following points could help decide whether an IMCA should be instructed where other advocacy support is available.

• whether the person could benefit from advocacy support for issues other than those related to safeguarding adults. The IMCA role would be focused on the protective measures being considered and is likely to end when decisions have been made regarding these
• whether the IMCA’s right of access to relevant records would make a significant difference for the person
• whether the IMCA service or other advocacy service has good availability to support the person during the safeguarding adult’s process

11.4.5.4 How an independent mental capacity advocate instruction for safeguarding adults fits with other independent mental capacity advocate instructions

The consideration whether an IMCA should be instructed for safeguarding adults should be informed by whether an IMCA has been, or should be, instructed for any other matter (for example, a serious medical treatment or accommodation decision, a care review, or for one of the IMCA roles related to the deprivation of liberty safeguards).

Where an IMCA is in place for another matter their focus will be on the specific reason for instruction, which may or may not be related to the safeguarding adults’ issues. For example, an IMCA instructed for a serious medical treatment decision would not be representing the person in relation to potential financial abuse. Conversely, if an IMCA has been instructed for an accommodation decision to potentially move a person from an abusive situation, their representations will be relevant to the safeguarding adults’ process.

The expansion regulations support IMCA instructions for safeguarding adults in addition to other instructions. Where the safeguarding decisions go beyond, or are different to, the reason for the other IMCA instruction, consideration should be given to a further IMCA instruction. This may or may not be undertaken by the same IMCA.

11.4.5.5 What if moving the person is being considered?

A possible protective measure is moving the person at risk, including temporarily. Where this is being considered (or takes place) there is a need to check whether there is a duty to instruct an IMCA for an accommodation decision.

11.4.5.6 At what stage should an independent mental capacity advocate should be instructed?

Consideration should be given to the most appropriate time to instruct an IMCA in the safeguarding adults’ process.

In some cases it will be appropriate to involve an IMCA at the discussion or meeting stage. This would need to happen for cases where the wishes or decisions made by the individual would have a significant impact on the investigative process or where immediate actions need to be taken to safeguard the individual prior to further investigation taking place.

In other cases, it may be more appropriate for an IMCA to become involved at the case conference or safeguarding planning stage so that they can provide input into the safeguarding plan. This would be more appropriate in cases where decisions need to be made as a result of findings of the investigation. There are a number of potential benefits of involving IMCAs early on in proceedings. The most important of these is to avoid decisions being taken without the person having had independent representation, for example, where a person at risk is moved against their wishes out of a potentially abusive environment before an IMCA is instructed. Other benefits include the IMCA having a greater opportunity to identify the person at risk’s wishes and providing an additional safeguard if the outcome of the process is that no protective measures are put in place.

Attendance at safeguarding adults meetings is a key way for IMCAs to support and represent the person at risk. After instruction it is recommended that IMCAs should be invited to all safeguarding adults meetings.

11.4.5.7 The role of the independent mental capacity advocate in safeguarding

The primary foci of IMCAs in safeguarding adults proceedings are the decisions concerning protective measures (including decisions not to take protective measures).

IMCAs have a statutory role to represent and support the person at risk in relation to these decisions which must comply with the MCA.

IMCAs have a particular responsibility to ensure that the person’s feelings and wishes are represented in discussions concerning the protective measures.

To do this they will need to:

• interview or meet the person if possible
• talk to professionals, paid carers and other people who can give information about the person’s wishes and feelings, beliefs and values
• access relevant records

IMCAs will seek to establish that all possible protective measures have been considered and that consideration has been given whether the proposed measures are the least restrictive of the person’s rights.

IMCAs should find out whether the person at risk has been given as much support as possible to participate in the decision-making process. This could include asking whether the person at risk has been invited to and supported to participate in safeguarding meetings as appropriate.

Local authorities and NHS bodies which instruct an IMCA for adults at risk are legally required to have regard to any representations made by the IMCA when making decisions concerning protective measures.

Regulations allow IMCAs to make representations on any matter they feel is relevant to decisions concerning protective measures. For example, an IMCA may raise concerns about the investigation process or the involvement of the police.

11.4.5.8 The independent mental capacity advocate report

IMCAs are required to produce a report for the person who instructs them. This should include representations regarding the proposed protective measures and any matters the IMCA feels are relevant. Ideally an IMCA report should be provided before decisions are made about protective measures.

It is also good practice for the IMCA to provide written reports for all safeguarding planning meetings. In some cases the IMCA may have had little opportunity to write a report before decisions are made. Delaying making decisions while waiting for a written IMCA report may go against the person’s best interests.

Where decisions are made about protective measures before an IMCA report is received there is still a statutory requirement to have had regard to any representations the IMCA has already made (including verbally at safeguarding adults meetings). The IMCA report in these circumstances should be provided as soon as possible after decisions are made to ensure timely and appropriate representation.

11.4.5.9 The independent mental capacity advocates contact with the person at risk

One of the statutory rights of IMCAs is to meet the person where “practical and appropriate‟. When instructed for a person at risk there are a number of reasons why it may not be practical or appropriate to meet the person.

These include:

• meeting the person could jeopardise any criminal investigations
• access to the person at risk may be denied by those people accused of abusing or neglecting them
• the IMCA may be putting himself or herself at risk by entering what may be an abusive environment

The possibility of undermining criminal proceedings (or other investigation processes) should be considered seriously in each case regardless of whether the person at risk is an alleged victim or perpetrator. IMCAs should be aware that talking to a person before a criminal trial has the potential to affect the reliability (actual or perceived) of evidence. The person could become aware of gaps or inconsistencies in their evidence. Pre-trial discussions may lead to allegations of coaching and, ultimately, the failure of the criminal case.

The safeguarding manager should only put restrictions on the IMCA’s contact with the person at risk where there is the possibility of an ongoing police investigation. Restrictions should be removed when it becomes apparent that there is no real likelihood of a prosecution.

IMCAs have the option of challenging the safeguarding manager if they believe they are unreasonably denying them access to the person at risk. One option is through the local authority’s complaints process.

11.4.5.10 Information sharing

Through contact with the person at risk the IMCA may gain information relating to the alleged abuse or what might be other abusive situations. Similarly, the IMCA could gain this information from consultation with other people.

In general the IMCA will want to pass any such information to the safeguarding manager (with the possibility of making further safeguarding adults alerts). However, before sharing any information the IMCA needs to consider the following points:

• a decision by the IMCA to pass on concerns about abuse or neglect nearly always involves sharing information about an individual that is both personal and sensitive and is subject to the Data Protection Act 1998
• where a person at risk has capacity to decide whether information they provided should be shared, their decision should be respected. The IMCA is however allowed to make an exception if there is an overriding duty such as a danger to life or limb, or risk to others (see Data Protection Act 1998 and DH 1997)
• where a person lacks capacity to decide whether information should be shared, consideration should be given to the person’s best interests. In most cases it will be in the person’s best interests in this to be shared to inform the safeguarding adults’ process

11.4.5.11 The independent mental capacity advocate contact with alleged perpetrators

It is very unlikely that the IMCA will need to meet, or talk on the phone to the alleged perpetrator (when this is not their client). If an IMCA believes they have justification for seeking contact, it is recommended that this is agreed in advance by both their line manager and the safeguarding manager. Any contact should be carefully risk assessed and recorded.

If the alleged perpetrator makes contact with the IMCA (outside any agreements made with the safeguarding manager which are supported by their manager) the IMCA should avoid any discussion and end the contact. The views of the alleged perpetrator will at times be critical to informing decisions regarding the person at risk. A common example is where the safeguarding adult alert is concerned with a relative’s ability to provide the person at risk with adequate support and care. The IMCA will need to ensure that their views are represented. Where there is no likelihood of a criminal prosecution, it may be appropriate for the IMCA to arrange to meet them.

11.4.5.12 The independent mental capacity advocate contact with family, friends and others

The IMCA will want to speak to people who are not part of the safeguarding adults meetings to help identify what the person’s views and wishes might be. This includes any family and friends, but also health and social care workers and other professionals.

The MCA code of practice gives the responsibility of informing relevant people that an IMCA has been instructed to decision-makers. Good practice is for the safeguarding manager to communicate to anyone who needs to be aware of the safeguarding adults proceedings that an IMCA has been instructed to independently represent the person at risk. This may include family or friends.

IMCAs must be very careful not to disclose confidential information to the people they consult. For example, if the IMCA is looking to speak to a family member to help understand what the person’s wishes might be, they must not assume that they will know about the alleged abuse. Just saying that they have been instructed because safeguarding adult proceedings have been instigated could be a breach of confidentiality.

11.4.5.13 independent mental capacity advocate challenging decisions made within safeguarding process

On occasion the IMCA may be concerned that decisions about protective measures do not comply with the MCA. The concerns may focus on:

• the person’s capacity to make their own decisions regarding their safety whether the person is appropriately protected
• whether less restrictive protective measures have been adequately considered whether delays in making decisions about
• putting in place, protective measures go against the person’s best interests

Where an IMCA has significant concerns regarding the process of making decisions about protective measures or the outcomes, they should as soon as possible bring their concerns to the attention of the safeguarding manager. Unless the safeguarding manager is able to resolve their concerns verbally, an IMCA report should be submitted to the safeguarding manager setting out the concerns.

Where it is still not possible to resolve serious concerns regarding a person’s capacity or safety, an application to apply to the Court of Protection should be made. If the case is not initially taken by the official solicitor the application should be made by the responsible body who should also meet the costs associated with the application. It is likely that an urgent application should be made unless both the IMCA organisation and responsible body agree that any delay would not be detrimental to the best interests of the person.

11.4.6 How to instruct an independent mental capacity advocate

IMCAs can only work with people who meet the criteria set out in the MCA. They cannot start working with individuals until they have been instructed by an appropriate person. For this reason IMCA services can only accept referrals from specific people:

• for accommodation decisions and care reviews this is likely to be the local authority responsible for making the arrangements, therefore they should instruct an IMCA where appropriate
• for serious medical treatment decisions it will be a medical practitioner, who has responsibility for the person’s treatment
• for safeguarding adults’ cases this will be the local authority or trust coordinating the safeguarding proceedings
• for the IMCA roles in DoLS this will be the supervisory body in the area where the person is ordinary resident

Before requesting an IMCA staff should ensure that they have undertaken an assessment of the person’s capacity to make the relevant decision.

There is no statutory requirement for the IMCA service to have access to a copy of a mental capacity assessment before acting on the instruction but they may ask to see it during the interview with the patient.

11.4.6.1 Independent mental capacity advocate services across the trust

All relevant staff should know how to get in touch with the IMCA service in the locality they work in.

The IMCA service is commissioned by the local authority in the three localities of the trust, as detailed below.

North Lincolnshire

Cloverleaf Advocacy Services
Ashby Clinic
Collum Lane
Ashby
DN16 2SZ

• Phone: 01724 854 952
• Fax: 01724 854 956
• Email: northlincs@cloverleaf-advocacy.co.uk
• Cloverleaf website North Lincolnshire (opens in new window)
• Cloverleaf referral form (opens in new window)

Rotherham

Absolute Advocacy (Cloverleaf)
Unit 3
Bessemer Way
Bessemer Business Park
Rotherham
S60 1EN

• Phone: 01709 794 294
• Email: enquiries@absoluteadvocacy.org.uk
• Cloverleaf website Rotherham (opens in new window)
• Cloverleaf referral form (opens in new window)

Doncaster

Doncaster Advocacy Service (VoiceAbility)
Rear of Carcroft Club
6 Chestnut Ave
Carcroft
Doncaster
DN6 8AG

• Phone: 01302 319 052
• Freephone: 08081 646 125
• Email: doncaster@voiceability.org
• VoiceAbility website (opens in new window)
• VoiceAbility referral form (opens in new window)

11.4.7 Access to information and the person

One of the legal powers of IMCAs is to be able to look at and take copies of relevant records. This includes health records, records held by local authorities and records held by care homes (see section 35(6) of the MCA for the specific details of this power).

If an IMCA asks to see specific records they should be made available to them if they are relevant to the decision. If the person who holds the records thinks particular records are not relevant to the decision, they would have to justify their reasons for withholding them.

The records IMCAs may request to see could include:

• care assessments and care plans
• medical records including medication charts daily log books
• staff rotas to check on the level of support provided

Staff must therefore ensure that they allow IMCAs to have access to information when requested in order to prevent any delay to the decision-making progress.

11.4.7.1 How do you check that the independent mental capacity advocate is who they say they are?

Staff should always check the identity of everyone before giving access to patients or sharing personal information about them and this applies to IMCAs.

The IMCA should carry photographic identification as proof of which organisation they work for, and staff should ask to see this and check this. If there are any concerns about the identity of an IMCA the following options are available to them:

• contact a manager at the IMCA organisation
• ask to see a signed copy of the IMCA referral form
• contact the decision maker
• contact the local authority that commissions the IMCA service

11.4.7.2 What to do if the independent mental capacity advocate wants to meet the person in private

IMCAs have a legal right to meet the person. Where possible this should be in private so that the person feels able to talk freely.

You may feel that the IMCA would gain little by meeting the person, for example if the person doesn’t appear to understand or use words. The IMCA is still likely to want to meet the person as it would be difficult for them to represent them without doing this.

If the IMCA asks you to meet the person the following information would be helpful to them:

• how best to help the person to communicate?
• whether there are times of the day when the person might find this easier?
• whether there are any risks the IMCA should be aware of, for example, the person might be physically violent or have a history of making false allegations

The IMCA must not be expected to take on any supervision or support roles that are normally undertaken by staff, for example, if the person needs to be supervised continuously it would not be acceptable for the IMCA to meet the person without other staff being present. Similarly, if the person has particular support needs as regards eating or drinking, the IMCA should not provide this support.

11.4.7.3 Talking to the independent mental capacity advocate about the person

Health and social care staff are a very important source of information for the IMCA and the decision maker. Their knowledge of the person can be essential to make sure the right decisions are made.

One of the roles of the IMCA is to make sure that the views of people who know the person are considered before making any decision. It is particularly important that the views of health and social care staff are included for people who have an IMCA. This is because the person is unlikely to have family and friends who can share their knowledge of the person.

Staff should feel confident sharing any information they have about the person with an IMCA relevant to the decision which needs to be made. The IMCA is likely to ask the following questions:

• what the person’s support needs are
• what the person’s views and wishes might be about the options being proposed
• who else the IMCA should speak to, for example, a staff member who has a special relationship with the person
• what decision they think would be in the person’s best interests

11.4.8 Informing the independent mental capacity advocate of any changes

Where an IMCA has been appointed staff should ensure that the IMCA is made aware of any changes to the person situation of care plan that may affect the support and representation they provide.

After the IMCA instruction there may be a need to undertake further mental capacity assessments. This could be because of concerns about the original assessment or potentially fluctuating capacity. If subsequently the person at risk is found to have capacity to make the decision for themselves then the IMCA instruction should be withdrawn.

The statutory IMCA role would normally end at this point. In some cases though, where the IMCA is concerned about the decision-making process, they may still need to challenge an aspect of this.

11.4.9 Seeking a second opinion

For decisions about serious medical treatment, the IMCA may consider seeking a second opinion on the patient’s behalf.

This puts the person on who lacks capacity in the same position as a person who has capacity, who has a right to request a second opinion. For further guidance refer to the trusts requesting a second opinion policy.

11.4.10 Responsibility of decision maker

Ultimately it is the decision maker’s responsibility to decide whether a proposed course of action is in the person’s best interests. However the Act requires the decision maker to take account of any information or reports supplied by the IMCA as part of the process of working out whether a proposed decision is in the person’s best interests.

Staff who instruct an IMCA must also pay attention to any other issues raised by the IMCA.

11.4.11 Timescales

The MCA does not set out time limits in which IMCAs should respond when a referral is made to them. If there are serious delays with IMCA being available, this should be raised locally between the IMCA service and the commissioning local authority). The right to advocacy is statutory in nature and therefore a failure to provide advocacy within a reasonable time period could lead to a legal challenge.

11.4.12 Challenging decisions

An IMCA has a right to challenge a decision about a lack of capacity or a decision made in a person’s best interests. In many cases IMCAs will be able to resolve any concerns they have with the decision maker before the decision is made. In these cases the IMCA should meet with the decision maker to discuss the reasons for the difference of opinion.

If the matter cannot be resolved the matter may need to be considered by the Court of Protection. In these cases staff should seek advice from the trust’s MCA lead as to how to proceed.

In such cases the IMCA will consult with the official solicitor (OS) with the facts of the case. The OS can decide to apply to the court as litigation friend (acting on behalf of the person the IMCA is representing).

The court will make a decision in the best interests of the person who lacks capacity. In extremely serious cases, where the IMCA believes the MCA has not been applied the IMCA might want to consider an application for judicial review in the high court.

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Document control

• Version: 5.1.
• Unique reference number: 84.
• Approved by: Mental health legislation operational group.
• Date approved: 28 July 2023 virtual approval.
• Name of originator or author: MCA lead.
• Name of responsible individual: Mental health legislation operational group.
• Date issued: 15 August 2023.
• Review date: 30 November 2023.
• Target audience: All staff who in the course of their work are required to know about and implement the MCA Mental Capacity Act 2005 policy.

Page last reviewed: February 25, 2025
Next review due: February 25, 2026

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