Mental Capacity,

Consent and YOU

The session will cover:

• What is mental capacity

• What is the Metal capacity act
• Steps to assessing capacity
• ‘Doable steps’
• Recording
What is Mental Capacity?
 Mental Capacity

The ability to understand and make a

decision when it needs to be made.
So- what does “lacks
capacity” mean?
The person is unable to
make that specific decision
at that specific time
 Mental Capacity Act (2005)
Mental Capacity
Act

Provides a legal framework for acting

and making decisions on behalf of
individuals who lack the mental
capacity to make particular decisions
for themselves.
Mental Capacity
Act

What decisions does the Mental

Capacity Act cover?

Is it my responsibility?
 MCA (2005)
Mental Capacity
Act

Everyone working with or caring for an adult

who may lack capacity to make specific
decisions must comply with the Act when
making decisions or acting for that person,
when the person lacks capacity to make a
particular decision for themselves.
The same rules apply whether the decision is
life changing, or an everyday matter.
Stepping stones to success
Principle
one
Step one Presumption of Capacity

It should be assumed that any person over

the age of 16 has full legal capacity unless
it can be demonstrated that they lack
capacity at the time the decision needs to
be made.
How do you know if someone has
capacity or not?
 The two-stage test of
capacity

Does the person have an impairment of the mind or brain,

or is there some sort of disturbance affecting the way their
mind works? (could be permanent or temporary)

If yes then;

does that impairment or disturbance mean that the person

is unable to make the decision in question at the time it
needs to be made?
Assessing Capacity

“ A person lacks capacity in relation

to a matter if at the material time
they are unable to make a decision
for themselves in relation to the
matter because of an impairment
of, or disturbance in the functioning
of, the mind or brain”
MCA (2005, s.2(1) )
 Assessing Capacity
A person is unable to make a decision for
themselves if they are unable to:

• Understand the information relevant to the

decision

• Retain that information

• Use or weigh that information as part of the

process of making the decision

• Communicate their decision (whether by talking,

using sign language or any other means).
Factors which may affect capacity

• Current health status

• Brain injury
• Specific decision
• The complexity of the
information given
• Pressure / stress the patient is
under
• A lack of trust
•Voulez-vous jouer à
un jeu?
•Would you like to play a game?
A nursing responsibility
Ensure an opportunity

Give an explanation

Language
Pictures
Gestures
(have we taken all steps?)
A person is unable to make a decision for
themselves if they are unable to:
Understand the information relevant to the
decision
Retain that information
Use or weigh that information as part of the
process of making the decision
Communicate their decision (whether by talking,
using sign language or any other means).
Principle Individuals being supported to make their own
TWO decisions

People must be given all practicable help before

anyone treats them as not being able to make
their own decisions.
 Decision Tree

Has Capacity Person Makes

Decision
Pre-Assessment - do everything to help the person to
make a decision

Assess Capacity - 2 Stage Test. No

Impairment or disturbance in mind or brain?

Unable to make decision at time needs to be made?

Can they:
-Understand the information relevant to the decision All
-Retain that information Yes
-Use or weigh that information as part of the process
of making the decision
-Communicate their decision

Is there a valid & applicable LPA, EPA, They make the

Advanced Decision in place Yes decision

Decision Maker
No Best Interests Assessment makes decision
Principle 3: Unwise Decisions

Just because a person makes what

might seem an unwise decision,
they should not be treated as
lacking in capacity to make that
decision.
 Principle 4: Best Interests

An act done or decision made under the Act

for or on behalf of a person who lacks
capacity, must be done in their best
interests
 Best Interests

If the person is assessed as lacking capacity any

decisions must be made in their best interests
Best Interests
• Is there a valid & applicable LPA for Health or Advanced
Decision in place

• The person delivering the care or treatment makes the

decision about whether to deliver that care or treatment

• Don’t make assumptions about a person’s best interests

• Is the person likely to regain capacity, if so, can the

decision wait

• All relevant circumstances must be considered

Best Interests
• Involve the person as fully as possible

• Past and present wishes, feelings, beliefs and

values e.g. religious, cultural and moral considered
and any advance statements / decisions

• Must consult other people if appropriate and

practicable and take account of views

• Where the determination relates to life sustaining

treatment….must not be motivated by desire to
bring about death
Principle 5: Least Restrictive Option

Anything done for, or on behalf of a

person who lacks capacity, should be
the least restrictive of the basic rights
of freedom
 Providing Care and Treatment
MCA provides legal protection from liability (Section 5) for
carrying out actions in connection with care and
treatment of people who lack capacity provided;
• You have observed the principles of MCA

• You have carried out assessment of capacity and

reasonably believe the person lacks capacity in relation
to the matter in question
• You reasonably believe action is in the best interests of
the person
Deprivation of Liberty

• Restraint - level; nature; frequency; lasting how long; effects on

person; why necessary/ to what aim

• Restrictions permanent/ temporary/ lasting for how long

(include availability of choice)

• Asking or attempting to leave; asking to go home;

frequency/intensity

• Objecting to any care and treatment - how; which parts of

treatment; frequency; including passive acceptance
Deprivation of Liberty

• Setting, home - hospital spectrum; relative normality of

arrangements/environment for care (in relation to normal living
arrangements)

• Social Contacts - college/school/work etc.; family

contacts/restrictions; social life; outings/trips and visits;
relatives/carers visiting frequency; involvement in care planning;
access to media

• Medication - used to suppress liberty to express self and/or

objections; administered by force/ covertly; especially
psychotropic & sedative medication
Deprivation of Liberty
• Staff control - care; movement; assessments, treatment; contacts;
residence; views of relatives/ carers of care plan; Supervision/
control/ autonomy; choice. Advocate involvement & views

• Decision not to release into care of others; live elsewhere - taken

by staff, request to be discharged by relatives

Is the care plan restrictive & permissible under MCA S.5&6 or is

there a reasonable belief that the cumulative effect constitutes a
deprivation of liberty?
Advanced Decision To refuse
Treatment ADRT
http://www.nescn.nhs.uk/

• A decision to refuse specific treatment and is binding

• Staff must be able to recognise when an advanced decision is

valid and applicable

• Must be valid, written, signed and witnessed if life sustaining

treatment is being refused

http://www.nescn.nhs.uk/wp-content/uploads/2014/06/ADRT-NHS
-Print-Form-v8-April-2013.pdf
 Advanced Decisions
Events making an advanced decision invalid -

• the person withdrew the decision

• after making the advance decision, the person made a Lasting Power
of Attorney (LPA) giving an attorney authority to make treatment
decisions that are the same as those covered by the advance
decision

• the person has done something that clearly goes against the
advance decision which suggests that they have changed their mind.
Advanced Decisions
A advance decision is not applicable if:
•the proposed treatment is not the treatment
specified in the advance decision
•the circumstances are different from those that
may have been set out in the advance decision, or
•there are reasonable grounds for believing that
there have been changes in circumstance, which
would have affected the decision if the person had
known about them at the time they made the
advance decision.
ADRT is NOT and Advanced care
plan
Points to remember;

• Capacity is specific
• Capacity fluctuates
• Who ever needs to know the level of capacity
assesses it.
• If in doubt, ask someone
Any Questions?
 Delirium
Champions and
challenges
Claire Pryor
https://youtu.be/92u45B98KNA
 What is delirium?
• DSM 1V
• A. Disturbance of consciousness (i.e. reduced clarity of
awareness of the environment) with reduced ability to focus,
sustain or shift attention
• B. A change in cognition or the development of a perceptual
disturbance that is not better accounted for by a pre-existing,
established or evolving dementia
• C. The disturbance develops over a short period of time
(usually hours to days) and tends to fluctuate during the
course of the day
• D. There is evidence from the history, physical examination or
laboratory findings that the disturbance is caused by the
direct physiological consequences of a general medical
condition.
• DSM 5
• A. Disturbance in attention (i.e., reduced ability to direct, focus,
sustain, and shift attention) and awareness (reduced orientation to the
environment)
• B. The disturbance develops over a short period of time (usually hours
to a few days), represents an acute change from baseline attention and
awareness, and tends to fluctuate in severity during the course of a
day.
• C. An additional disturbance in cognition (e.g.memory deficit,
disorientation, language, visuospatial ability, or perception).
• D. The disturbances in Criteria A and C are not better explained by a
pre-existing, established or evolving neurocognitive disorder and do not
occur in the context of a severely reduced level of arousal such as coma
• E. There is evidence from the history, physical examination or
laboratory findings that the disturbance is a direct physiological
consequence of another medical condition, substance intoxication or
withdrawal (i.e. due to a drug of abuse or to a medication), or
exposure to a toxin, or is due to multiple etiologies.
 What do we know?

• 50% of over 65’s in

Common hospital will have a
delirium at some stage
Fong et al 2015

Fatal • 1y post discharge =63%

increased mortality risk
Leslie et al 2005

Persistent • Can continue for 6+

months Inyoue 2014
 BUT

Preventable Treatable
 What does it look like?

HYPERACTIVE HYPOACTIVE MIXED

Staff often recognise this type Staff often don’t recognise this type Depends on most prevalent state

Top tip: Remember the focus on AWARENESS and AROUSAL

 Suspect
What can we do? Spot it
it

Delirium is more likely in people Delirium sometimes shows as:

with: • Change in behaviour = “not their
• Cognitive impairment or usual self”
dementia • More confused, disorientated, poor
• Poor eyesight or poor hearing attention
• An infection • Agitated, scared, restless,
• Dehydration aggressive
• Pain or injury • Sleepy or withdrawn
• Constipation • Hallucinations
• Lots of medicines • Fluctuating through the day
• Those who are older and/ or frail • Falls
 STOP IT

• Treat underlying cause

• Review constipation, infection, pain,
medicines etc and record
• Offer fluids frequently and encourage/ help
with eating - monitor intake
• Clear and simple communication
• Reduce noise and distractions where
possible
What is it like for the patient?

https://vimeo.com/31892402
 SAY THE “D” WORD!

√ Delirium X confused due to

UTI?

NOT ASKING FOR DIAGNOSIS, BUT RECOGNITION

OF A POSSIBLE CLINICAL CONDITION
5 points to think about

5 points to discuss
What is your local escalation plan?

Can you make one with your

clinical team?

Become a proactive delirium

champion!

ALWAYS ACT IF YOUR SUSPECT

DELRIUM

www.rcn.org.uk/delirium-champion
 https://www.youtube.com/watch?v=BPfZgBmcQB8

icanpreventdelirium