Terms of Reference

Advanced Decisions to Refuse Treatment (ADRT) are legal documents that allow individuals to specify which medical treatments they would want or refuse in the future; in case they lose the capacity to make decisions themselves. These decisions must be followed by healthcare professionals as long as they meet the criteria outlined in the Mental Capacity Act.

It's important to note that an ADRT cannot override decisions made under the Mental Health Act (MHA) if the individual is detained under a section of the MHA, the treatment decisions are made according to the procedures outlined in the Mental Health Act, and the ADRT may not be applicable. Here are some key points to consider when creating an ADRT:

1. Capacity: The individual must have had the capacity to make the decision at the time the ADRT was created. They should understand the nature and effect of the decision and its consequences.
2. Specificity: The ADRT should clearly specify which treatments are refused and under what circumstances. It should be specific enough to guide healthcare professionals in decision-making.
3. Written Form: The ADRT must be in writing, signed by the individual, and witnessed. It should also explicitly state that it applies even if the individual's life is at risk.
4. Applicability: The ADRT must be applicable to the situation in question. It cannot be used to refuse basic care, food, or drink necessary to keep the individual comfortable.
5. Review: It's advisable to review the ADRT periodically to ensure it still reflects the individual's wishes and preferences. Circumstances or medical treatments may change over time, so the ADRT should be updated accordingly.

By ensuring that an ADRT meets these criteria, it can serve as a robust and appropriate tool for guiding healthcare decisions in situations where the individual lacks capacity.

Informed consent based decision making is a fundamental aspect of the MCA. By looking for informed consent we ensure individuals are empowered to make choices about their care and treatment.

The process of gaining informed consent involves providing patients with appropriate information about the decision at hand including its risks, benefits and any alternatives to the proposal, as well as clear information as to how any interventions will be carried out, by whom and in what time frames. This information gives the patient the best opportunity to understand the implications of their decisions and make their choices firmly in line with their own values.

The concept of doubt arises when there is uncertainty about an individual's capacity to make a specific decision. Doubt may arise due to various factors, such as cognitive impairment, communication difficulties, presentation, or conflicting evidence about the individual's decision making abilities.

When doubt exists regarding an individual’s capacity, it is essential to conduct a thorough assessment to clarify capacity effectively.

The four stage functional test of capacity is a structured approach used to assess an individual's ability to make specific decisions in accordance with the MCA. The test comprises four key elements that must be considered when evaluating an individual's capacity:

1. Understanding: This stage involves determining whether the individual can comprehend the information relevant to the decision at hand. It assesses the individual's ability to grasp the nature and purpose of the decision, as well as the potential consequences of different choices.
2. Retention: The retention stage assesses the individual's capacity to retain the information provided to them long enough to make the decision. It considers whether the individual can remember the key facts and details necessary to make an informed choice.
3. Weighing: Weighing involves evaluating the individual's ability to weigh the information provided and consider the potential risks and benefits of different options. It assesses whether the individual can analyse the available information and make a reasoned decision based on their own values and preferences.
4. Communication: The final stage of the test focuses on the individual's ability to communicate their decision effectively. It considers whether the individual can express their wishes and preferences clearly and consistently, either verbally, non-verbally, or with the assistance of communication aids or support.

By evaluating these four stages, assessors can determine whether an individual has the capacity to make a specific decision.

Advice as to how to evidence and document each section can be found in the Exemplars in the appendix.

Trust approved documentation

There is trust approved Mental Capacity Assessment Forms and Best Interest forms contained within their own section on the PACIS and RIO clinical systems. This documentation must be used when assessing Capacity or making determinations in an individuals Best Interest.

In the framework of the MCA, the Independent Mental Capacity Advocate (IMCA) plays a vital role in safeguarding the rights and interests of individuals who lack capacity to make specific decisions, particularly in situations where there are no suitable family members or friends available to support them. The IMCA service is primarily focused on protecting vulnerable individuals who may lack capacity in decisions related to serious medical treatment, changes in accommodation, and safeguarding concerns.

IMCAs are appointed to represent the views and interests of individuals who lack capacity, ensuring that their voices are heard, and their rights upheld during decision making processes. They provide support by gathering information about the individual's preferences, wishes, and feelings, and presenting this information to decision-makers. Additionally, IMCAs assist in clarifying the individual's needs and circumstances, helping decision makers to make informed choices that are in the individual's best interests.

Furthermore, IMCAs act as advocates for individuals who may be subject to decisions made under the MCA, offering guidance and support to ensure that their rights are respected and that decisions are made transparently and in accordance with legal requirements. Overall, IMCAs play a crucial role in promoting autonomy, dignity, and empowerment for individuals who lack capacity, enhancing the safeguarding measures provided by the MCA.

An appointed deputy, under the Mental Capacity Act (MCA), is someone appointed by the Court of Protection to make decisions on behalf of an individual who lacks mental capacity to make those decisions themselves. Similar to Lasting Powers of Attorney (LPAs) and Advanced Decisions to Refuse Treatment (ADRTs), there are limitations on the authority of an appointed deputy.

An installed deputy's authority is subject to the same limitations regarding decisions made under the Mental Health Act (MHA). If the individual is detained under a section of the MHA, decisions regarding treatment and care are typically made according to the procedures outlined in the Mental Health Act, rather than by the appointed deputy.

A Lasting Power of Attorney (LPA) is a legal document that allows an individual (the donor) to appoint someone else (the attorney) to make decisions on their behalf if they lose the mental capacity to make those decisions themselves. However, similar to an Advanced Decision to Refuse Treatment (ADRT), there are limitations to the authority of an LPA.

While an LPA grants authority to make decisions in various areas such as finances, health, and welfare, it cannot override decisions made under the Mental Health Act (MHA) if the individual is detained under a section of the MHA. In those situations, decisions regarding treatment and care are typically made according to the procedures outlined in the Mental Health Act, rather than by the attorney appointed under the LPA.

The Mental Health Act regulates the medical treatment of mental disorders for people who are detained under the MHA.

The MHA does cover treatment of physical conditions if a person is detained under the MHA and needs physical health treatment which is regarded as treatment for a symptom or manifestation of their mental disorder or an ancillary to the treatment of their mental disorder e.g. a wound dressing for a self harm injury, or monitoring that is related to their mental health problem, e.g. a blood test to monitor clozapine levels.

See the attached poster for more information on Mental Health Act and Mental Capacity Act.

The Office of the Public Guardian (OPG) is a government body responsible for safeguarding the interests of people who lack mental capacity to make certain decisions for themselves. The OPG supports and supervises deputies appointed by the Court of Protection, registers Lasting Powers of Attorney (LPAs) and Enduring Powers of Attorney (EPAs), and investigates concerns about attorneys or deputies acting improperly.

While the OPG plays a crucial role in overseeing decision-making on behalf of individuals who lack capacity, it does not have the authority to make decisions on their behalf. Instead, it provides guidance, assistance, and oversight to ensure that decisions are made in the best interests of the individual.

The Mental Capacity Act emphasises the importance of supporting individuals to make decisions to the best of their ability while also safeguarding their welfare. This may involve providing information in a clear and accessible and reasonably adjusted manner, offering easy reads, tangible tools, communication aids or support. Engaging Speech and Language Therapists is advised when requiring reasonably adjusted information.

Relevant information encompasses the details necessary for individuals to understand the decision they are facing. This includes information about the nature and purpose of the decision, potential risks and benefits, and any available alternatives. Relevant information varies depending on the specific decision being made and the individual's circumstances. For example, in healthcare decisions, relevant information may include the nature of the medical condition, treatment options, potential side effects, and prognosis. In financial decisions, relevant information may include details about investments, expenses, and legal obligations.

Assessing an individual's understanding of relevant information involves evaluating their ability to comprehend and retain key facts and concepts. This assessment considers factors such as the complexity of the information presented, the individual's cognitive abilities, and any communication barriers they may face.

Ensuring that individuals have access to relevant information empowers them to make informed decisions that align with their values and preferences. In cases where individuals may lack capacity to understand all aspects of the decision, efforts should be made to provide information in a clear and accessible manner, and support should be offered to help them navigate the decision making process.

Further advice around establishing the relevant information can be found in the exemplars in the appendix.

Restraint

This refers to the use or threat of force where the person is resisting or any restriction of their liberty of movement, whether or not the patient resists.

Permissable restraint

Restraint is allowed only when the person using it reasonably believes it is necessary to prevent harm. The restraint used must be proportionate to the likelihood and seriousness of harm. The principle of the “least restrictive option” also applies here.

Deprivation of Liberty

Subsection (5) clarifies that for Section 6, a deprivation of liberty (within the meaning of Article 5 of the European Convention on Human Rights) goes beyond mere restraint. Section 6 does not protect actions that amount to deprivation of liberty.