The same legal framework, provided by the MCA , also applies in other settings such as supported living. This can be used for determining best interests decisions and deciding if a change constitutes a deprivation of liberty. For example, someone who is not suspected to be infected with COVID may not have the relevant mental capacity to make decisions about self-isolation and social distancing. The acid test will need to be considered if there is reason to believe that the arrangements amount to a deprivation of liberty.
If the arrangements do amount to a deprivation of liberty, then a referral should, in most cases, be made to the Court of Protection. The court has issued its own guidance for this emergency period and will continue to update it as needed. If an assessment has been carried out within the last 12 months from when the new authorisation is being considered , then this may be relied upon without a further assessment taking place as long as the supervisory body is satisfied that there is no reason why the previous assessment may no longer be valid.
However, great care should be taken in deciding to use a previous assessment and it should not be done routinely or without proper consideration of all the options. The older the assessment is even within the previous 12 months , the less likely it is to be valid.
It may not be appropriate to use previous best interests or capacity assessments again, without updating them, because normally they are more time- and context-specific than the others. Supervisory bodies should keep a record of cases where an older assessment within the previous 12 months is being relied upon, instead of a new assessment. If an assessment was carried out prior to the last 12 months, then this can be considered as evidence to be taken into account for the purposes of the new assessment.
The new assessment must be carried out by someone who meets the requirements set out in regulations for that assessment — in England and in Wales. The guidance recommends a number of proportionate changes to MCA and DoLS practice specific to issues relating to the pandemic. These will reduce the number of DoLS authorisations that might otherwise have been requested, easing the pressure on supervisory bodies.
These include:. Supervisory bodies should work collaboratively with hospital and care home staff. At least 2 sets of coronavirus health powers may be relevant for people without relevant mental capacity. It is essential that everyone follows public health advice to the best of their ability to prevent the spread of COVID That means that those caring for individuals without mental capacity to make decisions relating to public health advice need to consider how the emergency powers apply to the specific circumstances of the people they care for.
The Coronavirus Act gives public health officers PHOs in England powers to impose restrictions and requirements on a person suspected or confirmed to be infected with COVID who is not complying with public health advice. These powers are broadly replicated in Wales. New regulations and guidance for self-isolation were brought into force in England on Monday 28 September The regulations provide that a person may be committing a criminal offence and may be given a financial penalty if they do not stay at home and self-isolate when they are notified following a positive test result for COVID, or if they are contacted by specified professionals and instructed to self-isolate because of contact with someone who has had a positive test result.
If a person tests positive for COVID, it will also be an offence to knowingly provide false information about their close contacts to NHS Test and Trace or not to provide information about people in the same household. These powers do not apply in Wales.
In all cases, when a person who may lack the relevant capacity is being asked to make decisions relating to important public health rules or instructions, every effort should be made to ensure that they are supported in order to be able to understand what is being asked of them and therefore make the decision for themselves.
If a person does not have mental capacity to make a decision for themselves, outside of cases where the Mental Health Act MHA is relevant, those caring for the person professionally or personally should explore the use of the MCA as far as possible. When a person who lacks the relevant mental capacity is suspected or confirmed to have COVID, it is essential that the individual follows public health advice as far as possible to prevent the spread of the disease and receives the necessary care and treatment available through the NHS and other care services.
Every effort should be made to ensure that they are supported in order to be able to understand what is being asked of them and therefore make relevant decisions for themselves. This includes requesting the support of the relevant carers, family and friends. If they do not have mental capacity to make relevant decisions, outside of cases where the Mental Health Act MHA is relevant, those caring for the person should explore the use of the MCA as far as possible for decision-making in relation to public health advice.
In some circumstances, it may be appropriate to seek further advice on emergency public health powers in the Coronavirus Act, from Public Health England. In England, on the use of restrictions, please contact your local health protection team HPT. The Coronavirus Act gives PHOs in England power to impose restrictions and requirements on a person suspected or confirmed to be infected with COVID who is not complying with public health advice. When a HPT is contacted to enact the emergency public health powers in relation to a person who lacks the relevant mental capacity, the appropriate PHO should first confirm with the referrer that all avenues of the MCA and, where appropriate, the MHA have been explored.
In most cases, the public health powers in the Coronavirus Act will not be the most appropriate legal framework. Where it is confirmed that public health powers are the most appropriate option for the person, the PHO will:. The PHO should meet the person when deciding if the emergency powers are relevant to them. The person should be accompanied by those caring for them professionally or personally. Where appropriate, those carers should assist the person in answering questions about their health and recent movements.
The use of restrictions under the Coronavirus Act on potentially infectious individuals will rarely need to be applied in the case of individuals who lack the relevant mental capacity, as the MCA and, in some cases, the MHA provides the legal basis for making decisions in order to ensure that individuals can be tested for COVID or to restrict the movement of individuals who have or are suspected to have the virus.
If someone lacks the capacity to make an appeal, it can be made by someone or some authority on their behalf. This may, in some cases, be necessary even if the person is not objecting or does not appear to understand that they can make a challenge. Following a positive test for coronavirus, a requirement to self-isolate for a set period can be imposed by a public health official such as Public Health England, an NHS Test and Trace contact tracer or local authority contact tracer.
Contact may be by text message, e-mail, phone or in person. They should anticipate the possibility of either a positive or negative result and help the individual to understand what actions are needed with either outcome.
Additionally, one of these officials may ask the individual to self-isolate if they are identified as a close contact of someone who has recently tested positive for coronavirus. They may also be asked to confirm the address at which they will be self-isolating.
If practical and appropriate, a carer or health or social care professional giving or explaining the notification to a person should first consider whether there are reasons to consider that the person may lack mental capacity to understand the notification and the consequences of following an instruction to self-isolate, or not.
If a capacity assessment is justified they must follow the principles and duties of the MCA. If a person without the relevant mental capacity receives a notification to self-isolate, whoever cares for or works closely with the person should help them to understand what this means and what they are required to do. Who this is may vary depending on individual circumstances and arrangements, but for example may include: a key worker, care worker, or close family member.
Emergency rules in England provide that a person may be committing a criminal offence and be subject to a financial penalty if they do not stay at home and self-isolate when they are notified following a positive test result for COVID, or if they are instructed to self-isolate because of contact with someone who has had a positive test result.
Following these measures in full may not always be possible if a person lacks the relevant mental capacity. In these circumstances, the individual that needs to take the actions to ensure that the person self-isolates, should consider making a best-interests decision under the MCA on their behalf. In a formal setting such as a care home, this is likely to be a member of staff. They should also consider the important health benefits of self-isolation to the person and those close to the person.
The decision-maker should make a record of their decision. No automatic assumption should be made that what was in the best interests of one patient will be in the best interests of another, even if the two cases share similar characteristics. In these circumstances, every effort should be made to ensure that the person follows any aspects of self-isolation that can still be followed, in their best interests — for example practicing social distancing measures or reducing the amount of times they leave the place that they live.
If it is, it has the same effect as a decision made by a person with capacity — healthcare professionals must follow the decision. People who make an advance decision may wish to consider letting their family, friends and carers know about it. Find out more about advance decisions. You can grant a Lasting Power of Attorney LPA to another person or people to enable them to make decisions about your health and welfare, or decisions about your property and financial affairs.
Separate legal documents are made for each of these decisions, appointing one or more attorneys for each. An Enduring Power of Attorney EPA under the previous law was restricted to making decisions over property and affairs, which includes financial affairs and accessing the person's information.
Powers of attorney can be made at any time when the person making it has the mental capacity to do so, provided they're 18 or over. An LPA can be registered at any time, but a personal welfare LPA will only be effective once the person has lost the capacity to make their own decisions. In addition, the Court of Protection will be able to appoint deputies who can also take decisions on health and welfare and financial matters if the person concerned lacks the capacity to make a decision. They'll come into action when the court needs to delegate an ongoing series of decisions rather than one decision.
If the person concerned already has an LPA appointed, they will not normally need a deputy as well. The Public Guardian works with a range of agencies, such as the financial sector, police and social services, to investigate concerns. The Court of Protection oversees the operation of the Mental Capacity Act and deals with all issues, including financial and serious healthcare matters, concerning people who lack the mental capacity to make their own decisions.
The court also tries to resolve all disputes when the person's carer, healthcare worker or social worker disagree about what's in the person's best interests, or when the views of the attorneys conflict in relation to property and welfare. The court hears important cases, such as whether the NHS should withdraw treatment, whether a serious medical treatment decision is in a person's best interests, or whether it's in a person's best interests to be deprived of their liberty.
Cases can be brought to the court by family members, as well as advocates and professionals involved in decisions. The Mental Capacity Act applies to all professions — doctors, nurses, social workers, occupational therapists, healthcare assistants, and support staff.
Most trusts and local authorities will have a Mental Capacity Act lead who provides specialist advice on how the Act works. Page last reviewed: 27 January Next review due: 27 January Mental Capacity Act.
Examples of people who may lack capacity include those with: dementia a severe learning disability a brain injury a mental health illness a stroke unconsciousness caused by an anaesthetic or sudden accident But just because a person has one of these health conditions does not necessarily mean they lack the capacity to make a specific decision. The MCA says: assume a person has the capacity to make a decision themselves, unless it's proved otherwise wherever possible, help people to make their own decisions do not treat a person as lacking the capacity to make a decision just because they make an unwise decision if you make a decision for someone who does not have capacity, it must be in their best interests treatment and care provided to someone who lacks capacity should be the least restrictive of their basic rights and freedoms The MCA also allows people to express their preferences for care and treatment, and to appoint a trusted person to make a decision on their behalf should they lack capacity in the future.
How is mental capacity assessed? The MCA sets out a 2-stage test of capacity: 1 Does the person have an impairment of their mind or brain, whether as a result of an illness, or external factors such as alcohol or drug use?
Where appropriate, people should be allowed the time to make a decision themselves. Every effort should be made to find ways of communicating with someone before deciding that they lack capacity to make a decision based solely on their inability to communicate.
Also, you will need to involve family, friends, carers or other professionals. The assessment must be made on the balance of probabilities — is it more likely than not that the person lacks capacity? You should be able to show in your records why you have come to your conclusion that capacity is either present or lacking for the particular decision.
The MCA covers all types of decisions, big and small. This may be from the day-to-day, such as what to wear or eat, through to more serious or complex decisions, about, for example, where to live, whether to have surgery or how to manage finances or property.
The MCA applies to situations where someone is unable to make a particular decision at a particular time because of the way their mind or brain is affected. When suffering from depression, an individual may be unable to make a decision, but when recovered they can.
And, because someone lacks capacity to make major decisions, this does not mean they are unable to make minor decisions. For example, an individual with a learning disability whilst unable to make a decision about where to live, is able to make other smaller decisions, such as what to eat, wear or do each day.
What and when to record will vary. As a general rule, there is no need to record assessments of capacity to take day-to-day decisions.
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