Have you completed the first module in this series on mental capacity?

Part one: Introducing the Mental Capacity Act 2005

CPD activity

Before you start reading this article, think about:

• What do I want to learn?
• What will I gain from this learning?
• What will my employer gain?
• What difference will it make to people who use my services?

Last month, in part 1 of this series, we outlined the Mental Capacity Act 2005, along with the factors that need to be taken into account when assessing a person’s mental capacity. This month’s module considers what lacking mental capacity means for medical treatment, the issue of covert administration of medicines and the role of the pharmacy team.

Introduction

When it is confirmed that a person lacks the mental capacity to make certain decisions about healthcare issues, health interventions can be made in the patient’s best interests when there is a definite need for them. Exceptions to this include instances where individuals have valid advance decisions in place.

Advance decisions and statements

An advance decision enables people aged 18 and over who have mental capacity to refuse specified medical treatment at a time in the future when they may lack the capacity to consent to or refuse this treatment.

If an advance decision is found to be valid in particular circumstances, healthcare professionals must follow the decision, even if this results in the person’s death, as this will be the same as the decision the person would have made with capacity.

Advance decisions concerning life-sustaining treatment must be in writing (signed, witnessed and stating that the decision should apply even if life is at risk).

When treating patients, healthcare professionals should do everything within their power to determine whether someone has a legal advance decision in place, and if so, whether it applies to the current circumstances. For more information, visit NHS Choices – End of life care.

Advance decisions cannot be applied to decisions concerning more general care issues such as personal hygiene, nor can they override decisions to give compulsory treatment for mental disorders under the Mental Health Act 1983.

Unlike advance decisions, which can be legally binding, advance statements are never legally binding but can be used to indicate a person’s more general treatment preferences, such as personal hygiene, in addition to medical treatment. Advance statements may well be included as part of best interests decision-making processes, as would non-legally binding advance decisions. 

Lasting Power of Attorney

Under a Lasting Power of Attorney, a person aged 18 or over with capacity can nominate one or more trusted family members or friends to make decisions about health, property, personal affairs and welfare on their behalf, should they lose the capacity to make these decisions in the future. Anyone authorised under a Lasting Power of Attorney to make decisions for someone else must do so in accordance with the core principles of the Mental Capacity Act 2005 and in the person’s best interests. 

Independent mental capacity advocates

When an important decision needs to be made, individuals who lack capacity may have no one else to support or represent them in such decision-making processes. In the healthcare context, independent mental capacity advocates (IMCAs) fulfil this role by having the right to access relevant healthcare and social records for the person concerned, and by always having their input into best interests decision-making meetings taken into account.

An IMCA must be involved for people lacking capacity if they are:

• Going to be in hospital for more than 28 days
• Staying in a nursing home for more than eight weeks
• Being considered for serious medical treatment by an NHS body
• Being considered for arranged (or changed) accommodation in hospital or a care home by an NHS body or local authority.