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Processes

Discuss any concerns you may have at any stage of the process with your line manager or relevant professional as soon as possible.

Keep detailed records of all decisions made using the tools in section 3 of this guidance along with minutes of meetings held and action plans formulated. All records should be dated and timed as well as signed by the author.

The capacity assessment

Where a service user has an important decision to make, always assume they have capacity to make that decision. If you believe someone lacks capacity, you must complete the mental capacity assessment form.

It does not matter whether the impairment or disturbance is permanent or temporary.

The information relevant to a decision includes information about the reasonably foreseeable consequences of:

• deciding one way or another or
• failing to make the decision

If the answer to any of the above is ‘No’ then the person lacks capacity to make that decision at that time. Keep this under review so that if they regain capacity they can make their own decision.

Care must be taken to ensure that no undue pressure is being exerted on the person who lacks capacity by any other parties.

If the outcome of this assessment is that the person does lack capacity and they have no family or friends who can advocate on their behalf, you must complete a referral form for an IMCA (independent mental capacity advocate).

You may find the flow charts at the bottom of this page helpful.

Safeguarding vulnerable adults

If the situation concerns safeguarding a vulnerable adult, you can also request an IMCA to be involved. In this event it may be necessary to involve an IMCA even though the service user has family and friends involved. You should also look at the Adult safeguarding procedures.

In practice it may be sensible to hold a best interest meeting in the first instance but move from there into safeguarding to look at issues of neglect and back to best interests if the outcomes of that meeting suggest this.

Adult safeguarding meetings concerning issues relating to individuals who lack capacity as a matter of good practice should make reference to best interests of the individual as per mental capacity act.

Instructing an IMCA

As soon as it is clear that the service user lacks capacity, you should refer to the IMCA service.

Decision makers will be responsible for instructing the IMCA and then consulting with the appointed IMCA as required by the Mental Capacity Act (see Chapter 10 of the Code of Practice Appendix 1)

In order to avoid inappropriate referrals decision makers should consult with their line manager or the IMCA service prior to making the referral.

Managers should keep a record of IMCA referrals and determine whether it is appropriate to instruct or consult an IMCA.

The Best Interest meeting

As soon as it clear that the service user lacks capacity, a best interests meeting needs to take place.The purpose of this is to discuss the least intrusive options for the service user and must include the IMCA,if appointed. it is essential that the members of this meeting nominate a decision maker to take responsibility for coordinating the process and maintaining accurate records of the process and any information relevant to the service user.

Best Interest meetings are also useful to gather information in order to move towards making a final decision. It may take more than one meeting to do this.

Making and documenting the decision

Once the multi disciplinary team at the best interests meeting have come to a decision on behalf of the service user, this must be documented accurately, on the Mental capacity record.

Advance Decisions to Refuse Treatment

Statutory rules with clear safeguards confirm that people may make a decision in advance to refuse treatment if they should lose capacity in the future.

The decision must be made by a person who is 18 or over at the time when the person has capacity to make it and must specify the treatment that is being refused.

There is no set format for recording an advance decision – unless it involves refusing life sustaining treatment when it must be written, signed and witnessed by a third party and must expressly state that it applies “even if life is at risk”.

The person may withdraw their advance decision at any time by any means except in the case of life-sustaining treatment where the withdrawal must be in writing.

To ensure that a person's advance decision is valid and applicable the person should be encouraged to refer to the MCA guidance and/or seek legal advice. They can also complete the advance decision form.

People should think carefully about how they alert others to the existence of their advance decision. Ideally they would tell close family and friends and give them copies of the advance decision or make sure they know where a copy is located. It would also be advisable to give a copy to the GP or health/social care worker. In Salford we have produced a simple card that can be carried in a purse/wallet which will alert others to the existence of the advance decision. The cards have been distributed across the city or you can email Kwabena Agyenim-Boateng for some.

If there is any doubt or dispute about the existence, validity or applicability of an advance decision then it should be referred to the Court of Protection for determination. In an emergency situation – treatment can be given if there is reasonable doubt over it being ‘valid and applicable’ – further guidance on this is available in the Code of Practice.

This page was last updated on 07 November 2008

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