The MCA creates a framework within which to provide both empowerment and proper protection for people who cannot take all decisions for themselves. It contains provision for deciding whether people have the mental capacity to make decisions for themselves and for making decisions on behalf of people who lack the mental capacity to make such decisions. These decisions can be financial decisions or health and welfare decisions. This briefing is concerned with healthcare and welfare/personal care decisions.
The meaning of capacity is discussed fully in Mental Capacity Act 2005 Briefing 1: Overview and Key Provisions of the Mental Capacity Act 2005. The Act explains what is meant by incapacity. It provides that "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 disturbance in the functioning of, the mind or brain."
The MCA also provides that "a person is unable to make a decision if he is unable: (a) to understand the information relevant to the decision (b) to retain that information (c) to use or weigh that information as part of the process of making the decision, or (d) to communicate his decision (whether by talking, using sign language or any other means)."
There is a presumption that a person has capacity unless it is proved otherwise. In addition, a person is not to be treated as unable to make a decision unless all practicable steps have been taken to help him nor should a person be treated as unable to make a decision merely because he or she makes an unwise decision.
The MCA states that anything done or a decision made on behalf of an incapacitated person must be done or made in that person's best interests. In deciding what is in the person's best interests, the decision must not be made merely on the basis of the person's age or appearance nor should account be taken of any condition or behaviour which might cause other people to make unjustified assumptions. In addition, the following matters should be taken into account:
Therefore any decisions made in respect of the healthcare, welfare or personal care of an incapacitated person must be made in his or her best interests.
If there is any dispute about whether something is being decided in a person’s best interests, an application can be made to the Court of Protection for a ruling. Mental Capacity Act 2005 Briefing 3: Structures and Safeguards under the Mental Capacity Act 2005 explains in more detail the functions and procedures of the Court of Protection.
Decisions on healthcare and treatment may include decisions on the following matters: diagnostic examinations and tests, medical and dental treatment including surgical procedures and medication, cardiac resuscitation, artificial respiration, nutrition and hydration, blood transfusions, and other healthcare procedures such as the taking of blood samples or other bodily substances, chiropody, physiotherapy, and nursing care. Many other actions can be taken by carers or professionals on behalf of a person without capacity, without seeking any formal authority, or the involvement of the Court of Protection, as long as they are in the person's best interests, including giving medication, taking someone to hospital for treatment or assessment, providing nursing care, and administering emergency first aid or medical treatment.
However, if a valid advance decision or advance directive is in existence, the carer or professional may not take any of the above steps if he or she is aware that this would be contrary to the wishes expressed in the advance directive or decision. Also, a carer or professional should not take a decision that he or she is aware contradicts the decision of an Attorney appointed by the person concerned in a Lasting Powers of Attorney document, or that contradicts the decision of a Deputy appointed by the Court.
Decisions on welfare and personal care may include decisions on the following matters: where someone is to live, such as whether at home, with a relative, or in a residential care home or nursing home; acts of physical assistance such as washing, dressing, attending to personal hygiene, feeding, physically putting someone in a car, when taking them, for example, to see a doctor, dentist, etc.; assistance such as shopping, buying essential goods, arranging services required for personal care; tidying or clearing a person's home if they have gone to hospital or moved into a residential care home, washing clothes, taking a car to be repaired; help with communication; taking steps in relation to community care services, such as day care, residential accommodation, and nursing care.
"Day to day" and other actions necessary for a person's welfare can be taken on behalf of a person without capacity by carers, family members, and health and care professionals without the need for any formal authority or intervention by the Court of Protection, as long as the steps are in the person's best interests.
Some decisions, however, cannot be made without the involvement of an Independent Mental Capacity Act Advocate (see below on Independent Mental Capacity Act Advocates). Nor can any decisions be taken contrary to the decision of an Attorney appointed by the person concerned in a Lasting Powers of Attorney document, or contrary to the decision of a Deputy appointed by the Court.
There are also some decisions which can never be taken on behalf of a person without capacity, listed in section 27 of the Mental Capacity Act 2005. They include: decisions concerning the withholding of artificial nutrition and hydration from a person in a Persistent Vegetative State and non-therapeutic sterilisation of a person without capacity. For further information, contact a legal advisor or Mind's Legal Advice Line.
An advance directive is sometimes called a "living will", and has also been called an "advance statement" or "advance refusal". The Mental Capacity Act calls an advance directive an "advance decision". An advance decision or directive is a statement of someone's wishes regarding the healthcare and medical treatment they would wish to have or not wish to have, if they were to become mentally incapable of making decisions on these matters in the future. The individual must have full capacity when making the statement, but it will remain valid after he or she loses capacity to consent to, or refuse, treatment in the future. In order for the advance decision/directive to be legally binding, the individual must have reached the age of 18 at the time of making it.
The term "advance statement" is no longer used to refer to a legally binding expression of a person’s wishes, and therefore does not mean the same as an advance directive/decision. It refers to a non-legally binding document identifying a person’s views and preferences on a range of medical and other issues. Under the Mental Capacity Act an advance statement would need to be taken into account when decisions are made after a person loses the capacity to make them for him/herself, and the decision maker needs to decide what the person’s best interests might be. The issues covered by an advance statement could include: domestic arrangements, treatment preferences, finances, childcare, dietary requirements. As in the case of most advance decisions, no formalities are required in order to make an advance statement. However, it should be remembered that they are not legally binding upon future decision makers, and so it may be preferable for a person to draw up an advance decision/directive as set out in the Act to ensure that their wishes will be followed.
Doctors and healthcare workers must take the wishes expressed in the advance decision into account, as they are legally binding under the MCA, and doctors who carry out treatment contrary to the wishes expressed in an advance decision will in most cases be acting unlawfully. However, advance decisions are usually used to express advance refusals of treatment, because they cannot be used positively to compel a doctor or healthcare professional to administer a particular type of treatment. Statements about what type of treatment an individual would like to have MAY be taken into account, but they are not legally binding. This is usually a matter for a doctor's clinical judgement.
An advance decision may also not be effective to prevent medical treatment being given where, under the law, treatment can be given under the principle of necessity to save life. If the advance decision is to be used to refuse life-saving treatment, then it must contain clear and specific instructions to this effect and comply with the conditions set out below. An advance decision cannot be used to give effect to an unlawful act, such as euthanasia, an act which is a deliberate intervention with the express aim of ending life.
Otherwise, the instructions contained in the advance decision cannot be ignored by the doctors and other professionals treating the individual, unless:
An advance decision need not be in writing in order to be legally valid, nor are any formal procedures laid down by the MCA. However, in order to ensure that it is carried out exactly as the maker would wish, it is usually recommended that it should be in writing. It should express clearly what types of treatment are being refused. Anyone wishing to draft an advance directive/decision should seek advice to ensure that it covers the precise situations and circumstances which they would like it to cover. For example, instructions should be included to take account of advances in medical treatment, such as the development of new drugs. Also, such documents need to be reviewed regularly in case of a change in personal circumstances. A lawyer specialising in mental capacity matters would be able to provide such advice.
It is important to note that, under the MCA, an advance decision which includes a refusal of life-sustaining treatment must be in writing with a statement verifying that it is to apply to such treatment. It must also be signed by the patient in the presence of a witness in order to be enforceable.
An advance decision should ideally, if in writing, include the maker's name, address and other relevant personal details, and be signed by a witness. The Mental Capacity Act Code of Practice states that the role of the witness is to witness the signature, it is not to certify that the person has the capacity to make the advance decision. However, it has been suggested by a legal expert that the document should be signed by a witness who can verify that the maker was mentally competent at the time the document was drafted, and that there should be a statement in the document to the effect that the maker understands the effect of the advance decision and has the mental capacity required by law to make it. These additional measures would help protect the advance decision from subsequent legal challenge.
A person who is detained under the Mental Health Act does not necessarily lack the capacity to make an advance decision, but it may be useful to have a psychiatrist's opinion that, in spite of the presence of a mental health condition which warrants detention and treatment in hospital, he or she does have the necessary capacity at the time of making it.
It is important for a person with an advance decision/directive to draw attention to its existence, by supplying a copy to their GP and/or any hospital medical personnel involved in their care and treatment, for inclusion in their medical records, and to their Nearest Relative, carers or family members.
An advance decision/directive can be altered orally unless it relates to a refusal of life-sustaining treatment. Any advance decision/directive can be withdrawn, wholly or in part, at any time, and the law allows this to be done orally, although it is advisable to do so in writing, so that others may be clear that this has happened. However, it should be stressed that a withdrawal which has been done orally will be binding, and oral withdrawals may have to occur in circumstances where writing is not practicable, such as just before undergoing an anaesthetic. Disputes about the existence, validity or applicability of an advance decision/directive can be referred to the Court of Protection.
The effect of an advance decision/directive is overridden if the maker subsequently grants a Lasting Power of Attorney which covers the same subject matter as the advance decision, or, significantly, if the creator of the document has the capacity to express his own wishes at the time the decision has to be made. However, it cannot be overridden by a decision of the Court of Protection, a court-appointed deputy, or an attorney appointed before the date of the advance decision.
Before the Act came into force, these used to be called Enduring Powers of Attorney (EPAs).
A person, when possessing the legal capacity to do so, can appoint an attorney or attorneys to act for him or her in relation to his or her financial or property affairs. This is known as an ordinary power of attorney and ceases to have effect if the person appointing the attorney loses capacity.
The Enduring Powers of Attorney Act allowed people to appoint attorneys whose appointment continued even after the person lost capacity. The MCA has now replaced EPAs with Lasting Powers of Attorney (LPAs). The main difference between an EPA and an LPA is that now an attorney can be allowed to make healthcare, welfare and personal care decisions as well as financial decisions. It is possible, however, to create separate powers for financial and welfare or healthcare matters. This means that a person could have one attorney for their financial decisions and another for their personal care/ welfare decisions and healthcare decisions.
It is not possible for couples, or groups, such as friends, partners or a husband and wife, to create a joint Lasting Power of Attorney. Only individuals can create such a power.
An LPA is a power of attorney under which a person (the donor) gives to another person (the donee) authority to make decisions on property and financial affairs, and healthcare and person welfare matters, and which provides for such decisions to be made in circumstances where the donee no longer has capacity. Both the donor and donee must be over the age of 18. The attorney or donee has to have capacity to act as attorney at the time of appointment, but does not have to live in England and Wales.
An LPA must comply with certain formalities. It must be in writing, executed as a deed and witnessed by a third party. It needs to include information about the purpose of the instrument. The donor must name the person or persons to be appointed as attorney(s), state that he or she has read the information and intends to confer authority on the attorney to make decisions when he or she has lost capacity, and state whether anyone, and if so whom, should be notified of any application to have the LPA registered. The donee, the person to whom authority is given, must state that he or she has read the information and understands the duties under it. The instrument must also contain a certificate from a prescribed person that in his or her opinion the donor understands the purpose of the document and no fraud or undue pressure is being exerted.
An LPA may stipulate which decisions an attorney has the power to make, or alternatively, may specify which decisions he or she is not authorised to make, on behalf of the donor. The attorney is not authorised to refuse life-sustaining treatment on behalf of the donor, unless this is specifically expressed in the LPA. Also, the attorney has no power under the Mental Capacity Act 2005 to demand a specific form of treatment on behalf of the donor. An attorney can never refuse basic care on behalf of the donor, such as the provision of food and drink by natural means, or the keeping of the donor in hygienic conditions, as it is considered that this would never be in his or her best interests.
The LPA must be registered with the Public Guardian in order to become valid. Therefore an attorney will not have authority to act on behalf of a person who loses capacity if at that time the LPA has not been registered. An LPA does not take effect unless and until it has been registered with the Public Guardian. An application to register an LPA can be made by the donor or the donee. This can be done by sending the original document with a completed application form and the applicable fee together with appropriate medical evidence confirming that the donor has lost capacity, if s/he has done so. If and when the donor regains capacity, an application can be made for the LPA to be revoked.
Decisions made by the attorney (donee) must be in the donor's best interests, and complaints about the way in which an attorney is exercising his or her powers can be made to the Public Guardian. The Court of Protection can be asked to interpret the scope and meaning of Lasting Power of Attorney instruments in cases of doubt or ambiguity.
Generally, an LPA is subject to the wishes expressed by the donor in an advance decision/directive. However, if the LPA is made on a date after the advance directive is made, the attorney must follow the LPA if it confers the power to refuse treatments specified in the advance directive.
A pro forma advance decision is attached to this briefing at Annex A below.
A deputy is a person aged 18 years or over appointed by the Court of Protection to make decisions on behalf of an incapacitated person. There will normally be no need for a deputy if the individual has already appointed an attorney through a Lasting Power of Attorney. A healthcare attorney will not normally be appointed if the individual has made out a valid advance decision/directive.
A deputy may be appointed if a series of decisions are required to be made on behalf of an incapacitated individual, and there is no attorney. In cases where a one-off decision is required, the Court of Protection will normally make a single order without appointing a Deputy. It has been said that the appointment of a deputy for personal care decisions will be made rarely. Deputies will also only rarely be given healthcare powers. A deputy could be needed, for example, where a dispute existed between different family members, and the individual has had health problems calling for repeated assessments and decisions by doctors and carers.
It has been said that the Court is unlikely to appoint someone who is completely unknown to the individual in question, as the appointment of someone with no insight into the individual's wishes, feelings, values or healthcare/personal needs would not be in that person's best interests. The appointment of a deputy would only occur if it were in his or her best interests.
The following are examples of circumstances where appointment of a deputy could be judged to be necessary:
A deputy cannot make a decision inconsistent with a decision made by an attorney appointed under a Lasting Power of Attorney, nor may he or she refuse consent to a life-sustaining procedure on behalf of an incapacitated individual. The deputy must act within the scope of the powers conferred on him or her by the Court. Concerns about the actions of a deputy should be reported to the Public Guardian, who may appoint a Visitor to visit him or her and investigate the complaint. The matter could ultimately be referred to the Court of Protection, which has the power to discharge the deputy or vary his or her powers.
The following are examples of decisions a deputy might take on behalf of a person:
The deputy does not have the power to transfer responsibility for healthcare to a different doctor, or to require treatment to be provided by a doctor which is not considered to be in the person's best interests.
Deputies can also be appointed to make financial and property decisions, in the same circumstances that govern the appointment of Receivers under Part VII of the Mental Health Act 1983. With regard to property and affairs, trust companies as well as individuals can be appointed as deputies.
The Court of Protection supervises the framework set out in the MCA. In particular it has the power to:
The Public Guardian Office’s duties include:
The Public Guardian also works with a range of agencies, such as the police and social services, in order to be able to respond to any concerns which may be raised.
The Act provides for an independent mental capacity advocate (IMCA) service. The main functions of an IMCA are to:
The service is restricted to those who do not have representation in the form of (a) a person nominated by the individual (by whatever means) as a person to be consulted in matters affecting his or her interests, (b) a donee of an LPA or EPA created by the individual, or (c) a deputy appointed by the Court of Protection. The services of an IMCA must be secured if serious medical treatment is proposed for a person who lacks the capacity to consent to it, and no other person, such as (a,), (b) or (c) above, is available, apart from paid carers or professionals, whom it would be appropriate to consult in determining what would be in such a person's best interests.
Although the MCA would permit a broader group of people to receive IMCA services on a discretionary basis, funding for the scheme has been calculated on a very limited basis. The Government intends the service to apply in the first instance only to "those who have no family or friends".
This legal briefing relates only to the law of England and Wales in force at the time of writing. It is a brief outline of the law and is not a substitute for detailed advice. In Scotland the Adults with Incapacity (Scotland) Act 2000 applies, which is not covered in this briefing.
For further information about the work of Mind's legal unit, please refer to our information sheet, Introduction to the Legal Unit. This is also available in hard copy (T: 020 8519 2122).
The Office of the Public Guardian (OPG) is the first point of contact for anyone seeking advice or information about the MCA (telephone 0845 330 2900). Its website (www.publicguardian.gov.uk) contains a range of information about the Mental Capacity Act, Lasting Powers of Attorney and how to make an application to the Court of Protection.
For more detailed advice on any of the issues discussed in this briefing, you should take advice from a solicitor specialising in this area of the law. Details of where to seek specialist advice can be obtained from the Law Society (www.lawsociety.org.uk, telephone 0870 606 2555) or from Community Legal Advice (www.communitylegaladvice.org.uk, telephone 0845 345 4345).
Alternatively, you could contact your local Law Centre or Citizen's Advice Bureau, who may be able to help.
Joanna Sulek
Legal Unit
Mind
Granta House
15-19 Broadway
London E15 4BQ
January 2009
ADVANCE DECISION
(Personal crisis plan for mental healthcare advance decision making)
You are advised to read the guidance notes below before completing this document.
This is the Advance Decision of: _______________________ (name)
of ________________________________________________(address)
If at any time in the future I experience a mental health crisis, I direct that the following instructions are complied with. In particular, I refuse treatment which is contrary to that stipulated in this document. Where I have objected to a specific form of treatment this shall be legally binding on those treating me, except to the extent that I may be subject to compulsory treatment under the Mental Health Act 1983.
I also hereby declare that if my life is at risk I do not wish to have any life-sustaining treatment as defined in the Mental Capacity Act 2005. [Delete if not appropriate]
I declare that I have the capacity to execute this document and that I am signing it in the presence of the witness whose details and signature appear below.
Signed ______________________________ Dated _______________
Witnessed by * _______________________________________ (name)
of ____________________________________________(address of witness)
I confirm that the above named _______________ has signed his/her signature in my presence and that he/she has freely stated his/her directions in this document. It is my understanding and belief that he/she has the mental capacity to understand the nature and consequences of these directions.
Signed _____________________________ Dated ________________
*We recommend that you include a witness but this is optional unless you wish this advance decision to apply to life-sustaining treatment – see guidance notes below.
Issue Number: ________ (If this is the only advance decision you have made enter 1. If this document replaces an earlier version enter 2 and so on)
I have provided a copy of this document to the following people:
__________________________________________________ (my GP)
__________________________________________________ (my consultant)
__________________________________________________ (my partner/spouse)
__________________________________________________ (family member/s)*
__________________________________________________ (advocate)
__________________________________________________ (AMHP)
__________________________________________________ (social worker/CPN)
__________________________________________________ (attorney/deputy)
*If you know who your “nearest relative” is, include that person here.
Name/address/telephone number including out of hours contact
*(This should be someone who is qualified to represent you on matters connected with sectioning, compulsory treatment etc. He/she should be a member of the Law Society’s Mental Health Panel.)
Name/contact details
I confirm that this person knows and understands the terms of this request and that they have given permission to be contacted and will speak for me in a crisis.
The purpose of making an Advance Decision
An Advance Decision will give you more power over your future treatment. Medical staff are usually bound by the views you express regarding treatment you do not want to have. However your right to state in advance what you want to happen if your mental health deteriorates in the future is limited. First, you have the right to refuse treatment, but no one has the right to insist on certain treatment being given to them. Second, if it is considered a necessity to provide urgent treatment this may be given unless it is absolutely clear that this treatment is being refused. Third, people may be treated without their consent if they are subject to certain compulsory powers under the Mental Health Act 1983 and the proposed compulsory treatment is for the purposes of treating “mental disorder”. However, an advance decision can now be effective to exclude electro-convulsive treatment (ECT).
When does an Advance Decision take effect?
An Advance Decision only takes effect if you lose the capacity to make your own decisions at the relevant time.
Can you change your mind?
Yes, so long as you have the mental capacity to do so. Make sure that you destroy previous copies, including those you have given to other people.
Why Do I Need A Witness?
You do not need to have the document witnessed unless you wish to refuse “life-sustaining treatment”. If this is not the case, the document is still valid without a witness. However, if you feel that in future there might be doubt cast over your capacity to make the decisions included in this document, it is helpful to ask someone to act as your witness. The witness should be over 18 years old and someone who could be relied upon to confirm their belief that you had the capacity to make the decisions contained in the document, and that you made your views freely.
Is the whole document legally binding?
No. Only the sections relating to medical treatment are legally enforceable. The other sections are for guidance only.
Where should I go for help if I need further advice?
You could telephone the Legal Advice Service provided by Mind on 0845 225 9393, between 9am and 5pm Monday to Friday. Alternatively, if you have medical or other related questions contact your care co-ordinator, GP, advocacy service or Citizens Advice Bureau.