The Old Common Law Patient has capacity• Treatment requires their consent. Patient lacks capacity• The clinician is under a duty to give treatment which is necessary to preserve the patient’s life, health or well-being; and is in their best interests.
Mental Capacity Act Patient has capacity• Treatment requires their consent. Patient lacks capacity• The MCA applies whenever you wish to give care or treatment to an incapacitated person outside the Mental Health Act.
MHA and MCA patients MHA RULES MCA RULES Treatment for mental disorder Treatment for mental disorder• Section 2 patients • Informal patients• Treatment order patients • Short-term sections• CTO patients • Guardianship • Conditional discharge • Section 35 • Prison medical units + Treatment for physical health, e.g. heart condition
Who lacks capacity? For the purposes of the Act, 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.’ (s.2) It does not matter whether the impairment or disturbance is permanent or temporary. How does this provision affect people suffering from schizophrenia or mania? Section 2
Statutory PrinciplesThe following principles apply for the purposes of the Act: of1.1. A person must be assumed to have capacity unless it is established that he be to it is he lacks capacity;2.2. A person is not to be treated as unable to make a decision unless all is to be as to practicable steps to help him to do so have been taken without success; to to do so3.3. A person is not to be treated as unable to make a decision merely because is to be as to he he makes an unwise decision; an4.4. An An act done, or decision made, under the Act for or on behalf of a person or or on of who lacks capacity must be done, or made, in his best interests; be or in5.5. Before the act is done, or the decision is made, regard must be had to is or is be to whether the purpose for which it is needed can be as effectively achieved it is be a s in in a way that is less restrictive of the person’s rights and freedom of action. is of of Section 1(1)
Best InterestsThe person determining what is in the individual’s best interests must consider all therelevant circumstances and, in particular, must1. Consider whether it is likely that the person will at some time have capacity in relation to the matter in question and, if it appears likely that he will, when that is likely to be;2. So far as reasonably practicable, permit and encourage the person to participate, or to improve his ability to participate, as fully as possible in any act done for him and any decision affecting him.3. Consider, so far as is reasonably ascertainable, the person’s past and present wishes and feelings (and, in particular, any relevant written statement made by him when he had capacity); the beliefs and values that would be likely to influence his decision if he had capacity; and the other factors that he would be likely to consider if he were able to do so. Section 4
Best Interests (2)4. Take into account, if it is practicable and appropriate to consult them, the views as to what would be in the persons best interests and, in particular, as to the matters mentioned in paragraph (3) immediately above of anyone named by the person as someone to be consulted on the matter in question or on matters of that kind; anyone engaged in caring for the person or interested in his welfare; any donee of a lasting power of attorney granted by the person; and any deputy appointed for the person by the court.5. Not be motivated by a desire to bring about his death where the determination relates to life-sustaining treatment and considering whether the treatment is in the best interests of the person concerned. (“Life-sustaining treatment” means treatment which in the view of a person providing health care for the person concerned is necessary to sustain life.) Section 4
Making decisions — New Mechanisms ADVANCE DECISION Require capacity LPA DONEEMAKING DECISIONS COURT OR DEPUTY USE OF SECTION 5
Advance decisions DEFINITION OF AN ‘ADVANCE DECISION’An “Advance decision” is a decision made by an adultwith capacity that if:(a) at a later time a specified treatment is proposed tobe carried out by a person providing health care, and(b) at that time he lacks capacity to consent to thattreatment,the specified treatment is not to be carried out orcontinued. Section 24
Is the advance decision binding? Incapacity Validity ApplicabilityNot binding if at the material Not binding if not valid. Not binding if not applicable to thetime the person who made it Not valid if s/he withdrew the treatment. Not applicable if:still has capacity to give or advance decision at any time (i) the treatment is not the treatmentrefuse consent to the when s/he had capacity to do so, specified in the advance decision;treatment being proposed; or has done anything else clearly (ii) any circumstances specified in inconsistent with the advance the advance decision are absent; or decision remaining her/his fixed (iii) there are reasonable grounds for decision. believing that circumstances exist which the person did not anticipate at the time of the advance decision and which would have affected her/his decision. Life-sustaining treatment An advance decision is not applicable to life-sustaining treatment unless it is verified by a statement to the effect that it is to apply to that treatment even if life is at risk, and the decision is in writing, signed and witnessed.
Lasting Power of Attorney A lasting power of attorney is a power of of is of attorney under which the donor ("P") confers on on a donee or donees authority to make decisions or to about all or any of the following: or of P’s personal welfare or specified matters or concerning Ps personal welfare, and LPA Personal Welfare P’s property and affairs or specified matters or concerning Ps property and affairs, Property Affairs and which includes authority to make such to decisions in circumstances where P no longer in no has capacity. Section 9
Supporting the Judges The Public GuardianThe Judges are supported by Deputies Court of Protection Visitors
Power to make declarations The court may make declarations as to: whether a person has or lacks capacity to make a decision specified in the declaration; whether a person has or lacks capacity to make decisions on such matters as are DECLARATIONS described in the declaration; As to the lawfulness or otherwise of any act done, or Capacity yet to be done, in relation to that person. Lawfulness ACTS & OMISSIONS The term “Act” includes an omission and a course of conduct. Section 15
The Court’s Section 16 Powers Matter concerning personal welfare or property and Decisions about where to live affairs Person lacks capacity in relation to it Decisions about contact Court may by order decide the matter or appoint a deputy to make decisions Decisions about medical treatment
Powers: Personal Welfare Subject to section 20 (restrictions on deputies), the powers under section 16 as respects P’s personal welfare extend in particular to: deciding where P is to live; Decisions about where to live deciding what contact, if any, P is to have with any specified persons; making an order prohibiting a named person from having contact with P; Decisions about contact giving or refusing consent to the carrying out or continuation of a treatment by a person providing health care for P; giving a direction that a person responsible for Ps health care allow a different person to take Decisions about medical treatment over that responsibility. Section 17
Draft Code of Practice Example Having spent most of her childhood in The authority applies to the care, a young woman with learning court for a deputy to be disabilities, lacks the capacity to decide appointed to make where she should live and goes to live with decisions about the her father when she becomes 18. woman’s future care and Staff at the day centre she attends notice welfare. that she is becoming increasingly The court is likely to make disturbed and often has bruises on her a range of orders including arms and legs. They arrange for her to be declarations that it is seen by a doctor who finds signs of lawful for the local physical and sexual abuse. The father authority to remove and denies this and criminal proceedings house the young woman in against him fail for lack of evidence. supported accommodation, The local authority social services try to together with an order persuade him that a move to independent regulating contact with the supported housing would be in his father. daughter’s best interests, but he objects.
Liability for care or treatment THE SECTION 5 PRINCIPLEWhere the section 5 conditions are satisfied, a person whodoes an act “in connection” with an incapacitated person’s an ancare or treatment is regarded as having the incapacitated or is asperson’s consent for the act.The person doing the act will only incur a legal liability if ifher/his act would have been unlawful if done with consent. ifNegligent acts are not protected. Section 5
The 5 Section 5 Conditions 1 The act is one undertaken ‘in connection with’ another’ person’s care or treatment; 2 The person doing it takes reasonable steps to establish whether the recipient has capacity; 3 S/he reasonably believes that the recipient lacks capacity; 4 S/he reasonably believes that it is in their best interests for act to be done; 5 If s/he uses restraint, s/he reasonably believes BOTH that it is necessary to do the act in order to prevent harm to the person and that the act is a proportionate response to the likelihood of their suffering harm and the seriousness of that harm. DEFINITION OF RESTRAINTFor these purposes, a person restrains another person if he (a) uses, or threatens to use, force to secure thedoing of an act which s/he resists, or (b) restricts their liberty of movement, whether or not they resist.
Detention and section 5 Deprivation of liberty The person doing the act does Restriction √ more than merely restrain the of liberty other person if s/he deprives that person of his liberty within the meaning of Article 5(1) of the Human Rights Convention, Deprivation X whether or not D is a public of liberty authority. Section 6
Whether deprived of liberty?‘The Court considers the key factor ‘The concrete situation was that thein the present case to be that the applicant was under continuoushealth care professionals treating supervision and control and wasand managing the applicant not free to leave. Any suggestion to the contrary was, in the Courtsexercised complete and effective view, fairly described by Lord Steyncontrol over his care and movements as “stretching credulity to breakingfrom the moment he presented acute point” and as a “fairy tale”.’behavioural problems on 22 July1997 to the date he wascompulsorily detained on 29October 1997.’ Bournewood Case (ECHR)
Scenarios A naso-gastric tube is inserted in order to treat an informal patient who suffers from anorexia nervosa. Is this act protected under the Mental Capacity Act?
Scenarios Ms Fox has a profound learning disability and epilepsy. She is being cared for in a residential care home. Sometimes restraint is necessary to get her to take medication. Is this lawful? Ms Fox returns home at weekends. Can her parents use restraint where this is necessary in order to get her to take her medication?
Interface between MCA 2005 and parental and children’s rights
Children aged 16 and 17 Family Law Reform Act 19698.—(1) The consent of a minor who has attained ofthe age of sixteen years to any surgical, medical or of to ordental treatment which, in the absence of consent, in ofwould constitute a trespass to his person, shall be to beasas effective as it would be if he were of full age; and as it be if he ofwhere a minor has by virtue of this section given an by of aneffective consent to any treatment it shall not be to it benecessary to obtain any consent for it from his to itparent or guardian. or
Parental authorityA parent’s rights are notextinguished when theirchild reaches 16. They areonly extinguished when thechild ceases to be a child,upon reaching the age of 18.A parent may consent totreatment being given to achild aged 16 or 17, evenwhere the child has refusedto give their own consent.
Children aged 15 and underBefore such a child can be consideredcompetent to consent to treatment, s/hemust be able to appreciate: what the treatment is and why s/he needs it the risks involved in not receiving the treatment the benefits involved in receiving the treatment the nature of the treatment in broad terms.
Who may consent to treatment Patient’s consent Parental consent ADULT (18 years+) • Y es • No AGED 16–17 • Y es • Y es • If “Gillick- AGED 15 or less competent” • Y es
The High CourtThere is now ample authority for theproposition that the inherent powersof the court under its parens patriaejurisdiction are theoretically limitlessand they certainly extend beyond thepowers of the natural parent. Thecourt does have the power to overridethe refusal of a minor, whether overor under 16, and even if ‘Gillick-competent’. Lord Donaldson, MR in Re W 
MHA: Children aged 16 and 17 Family Law Reform Act Mental Health Act 1983 1969 131.—(2) Subsections (3) and (4) below apply in in8.—(1) The consent of a minor of the case of a patient aged 16 or 17 years who has of 16 or 17who has attained the age of of capacity to consent to the making of such to to ofsixteen years to any surgical, to arrangements as are mentioned in subsection (1) as inmedical or dental treatment or above.which, in the absence of in of (3) If the patient consents to the making of the If to ofconsent, would constitute a arrangements, they may be made, carried out betrespass to his person, shall be to be and determined on the basis of that consent on ofasas effective as it would be if he as it be if he even though there are one or more persons who orwere of full age; and where a of have parental responsibility for him.minor has by virtue of this by of (4) If the patient does not consent to the making If tosection given an effective an of of the arrangements, they may not be made, beconsent to any treatment it to it carried out or determined on the basis of the or on ofshall not be necessary to obtain be to consent of a person who has parental ofany consent for it from his it responsibility for him.parent or guardian. or
MHA : ECT — Patients with capacity s58A PATIENTS WITH CAPACITYChild with capacity Children, other than those subject to a CTO, SOAD certifiesconsents to ECT including children who are informal patients, their consent and who have capacity to make their own also that ECT is(Section 2 patients, decision and consent to having ECT appropriatethose on treatmentorders and informalpatients)Child with capacity Children, other than those subject to a CTO, ECT may not berefuses consent including children who are informal patients, given under s.58A who have capacity but who refuse to(Section 2 patients and consent to ECTthose on treatmentorders and, in the caseof children, informalpatients)
ECT — Patients without capacity s58A PATIENTS WHO LACK CAPACITYChild on a relevant Children detained SOAD certifies that patient is not capable andsection who lacks under section 2 or for that ECT is appropriate.capacity to consent treatment who areto ECT not capable of understanding the(Section 2 patients nature, purpose andand those on likely effects of ECTtreatment orders)Child who is an Children who are not SOAD certifies that patient is not capable andinformal patient detained under that ECT is appropriate and, in addition,lacks capacity to section 2 or for there is authority to give the treatment to anconsent to ECT treatment, or subject informal child patient, e.g. parental consent to a CTO, and are not or authority under section 5 of the MCA capable of 2005. understanding the nature, purpose and likely effects of ECT
Who may consent to treatment Patient’s consent Parental consent ADULT (18 years+) • Y es • No • Y es • Yes but … AGED 16–17 ECT/MHA adm ission • If “Gillick- AGED 15 or less competent” • Y es
New MCA Mechanisms — Children ADVANCE DECISION Must be 18 Years Old LPA DONEEMAKING DECISIONS COURT OR DEPUTY Must be 16,17 USE OF SECTION 5
16 & 17 Year Olds Only an adult only make an ADVANCE DECISION or an LPA. Therefore, only two of the four mechanisms in the MCA apply to children aged 16 or 17: The Court of Protection/Deputy mechanisms and section 5. These mechanisms, of course, only apply where there is some “mental incapacity,” because children aged 16 or 17 are presumed to be able/sufficiently mature to give the same consent as an adult. A case relating to a 16 or 17 year old who lacks capacity could, potentially, be heard to 16 or 17 be either in the Family Division of the High Court or in the Court of Protection. in of o r in of It It would, however, not make sense to require two sets of legal proceedings to be to of to b e conducted within a short period of time where the problems arising from the young of persons lack of capacity are likely to continue after aged 18. It may be more of to 18 It be appropriate for the Court of Protection to hear those cases, while one-off cases, such of to as as those relating to urgent medical treatment for a 16 or 17 year old lacking capacity to 16 or 17 to to consent, may be referred to the Family Division of the High Court. be to of
Those under 16Section 2(5) of the Mental Capacity Act makes it clear that the powers of itunder the Act generally only arise where the person lacking capacity isisaged 16 or over. 16 orSubject to section 18(3), “No power which a person may exercise under to 18 ),this Act … is exercisable in relation to a person under 16.” is in to 16As toAs to section 18(3), this extends the powers of the Court of Protection 18 ) , of oftoto make decisions concerning the property and affairs of a person ofunder 16 where the court considers it is likely that the person will still 16 it islack capacity to make decisions in respect of the matters in question, to in of inafter reaching the age of 18. of 18Other disputes concerning persons aged under 16 must be resolved 16 beunder the Children Act 1989, the inherent jurisdiction of the High ofCourt or by way of the Mental Health Act 1983. or by of
Children — Significance of MCA If If a child aged 16 or 17 lacks capacity to make a decision for themselves “because of 16 or 17 to of an an impairment of, or a disturbance in the functioning of, the mind or brain”, the or in or Court of Protection procedures are available, as is section 5 in relation to their care or of as is in to or treatment. In In terms of care and treatment decisions, the alternatives are: (1) parental consent; of (2) Mental Health Act 1983; (3) High Court inherent jurisdiction/ wardship; (4) Children Act 1989, e.g. secure accommodation order. Because there are a range of existing alternatives, does section 5 therefore add of anything useful for the practitioner? The short answer is that it may provide clearer is it protection from legal liability for staff providing care or treatment to a person aged or to 16 or 17 16 or 17. Furthermore, it may be an adequate solution where the 16/17 year old child it be an 16 17 is is unable to consent to informal care or treatment by reason of mentally incapacity to to or by of and her/his parents are unwilling to consent to that treatment. to to
Who may consent to treatment Patient’s consent Parental consent ADULT (18 years+) • Y es • No • Y es • Yes but … AGED 16–17 •Consider s.5, MCA ECT/MHA adm ission • If “Gillick- AGED 15 or less competent” • Y es
CHILDREN ACT 1989 ORDERSOrder/authority Sect Power Statutory criteria . Police s.46 A power enabling a constable to remove a 46.—(1) Where a constable has reasonable protection child to suitable accommodation or to take cause to believe that a child would otherwise steps to ensure that the child is not removed be likely to suffer significant harm he may— from any hospital in which s/he is being (a) remove the child to suitable accommodated. accommodation and keep him there; or LA must be informed and must make (b) take such steps as are reasonable to ensure necessary inquiries to decide whether they that the childs removal from any hospital, or should take action to safeguard or promote other place, in which he is then being the child’s welfare. accommodated is prevented. Designated officer shall allow parents to have such contact (if any) as is reasonable and in the child’s best interests. Designated officer may apply for an EPO (see below). Maximum duration of 72 hours. Emergency s.44 An order directing the production of a child Unless there have been problems gaining protection and authorising either their removal to access to a child, the court may make the order accommodation provided by or on behalf of o rd e r i f, b u t o n l y i f, i t i s s a t i s fi e d t h a t — the applicant or the prevention of the childs (a) there is reasonable cause to believe that removal from hospital. the child is likely to suffer significant harm A court making such an order may give i f— directions with respect to the psychiatric (i) he is not removed to accommodation examination or assessment of the child provided by or on behalf of the applicant; or (s.44(6)). (ii) he does not remain in the place in which Maximum initial duration of 8 days, but may he is then being accommodated. be extended for a further 7 days.
CHILDREN ACT 1989 ORDERS Order Sect. Power Statutory criteria Local s.47 A local authority may be under a 47.—(1) Where a local authority— authority duty to make enquiries to enable (a) are informed that a child who lives, or is found, enquiries them to decide whether they should i n t h ei r area— take any action to safeguard or (i) is the subject of an emergency protection order; promote a childs welfare. or (ii) is in police protection; or (b) have reasonable cause to suspect that a child who lives, or is found, in their area is suffering, or is likely to suffer, significant harm, the authority shall make, or cause to be made, such enquiries as they consider necessary to enable them to decide whether they should take any action to safeguard or promote the child’s welfare. Child s.43 An order authorising a childs The court may make the order if, but only if, it is assessment assessment, e.g. a psychiatric s a t i s fi e d t h a t — order examination or assessment. (a) the applicant has reasonable cause to suspect that A court may treat the application as the child is suffering, or is likely to suffer, an application for a child protection significant harm; order, and no court shall make a (b) an assessment of the state of the child’s health or child assessment order if satisfied development ... is required to enable the applicant to that there are grounds for making an determine whether or not the child is suffering, or is emergency protection order and that likely to suffer, significant harm; and it ought to make such an order. (c) it is unlikely that such an assessment will be Maximum duration of 7 days. made, or be satisfactory, in the absence of an order made under this section.
CHILDREN ACT 1989 ORDERSOrder/authority Sect. Power Statutory criteria Interim care s.38 An order made upon adjourning an 38.—(2) A court shall not make an interim order application for a care order or supervision care order or interim supervision order under order — the court may give directions this section unless it is satisfied that there are with regard to a psychiatric examination or reasonable grounds for believing that the assessment (s.38(6)). Maximum initial circumstances with respect to the child are as duration of 8 weeks with renewals of 4 mentioned in section 31(2) (see below) weeks at a time. Interim s.38 An order made upon adjourning an supervision application for a care order or supervision order order — the court may direct that the child should undergo a psychiatric examination or assessment (s.38(6)). Maximum initial duration of 8 weeks with renewals of 4 weeks at a time.