This study explored staff needs for guidance on the Mental Capacity Act - guidance was then developed
Andrew Alonzi, PGDip (Law), PGCHE, BA, is solicitor and senior lecturer in law, Nottingham Law School, Nottingham Trent University; Janet Sheard, SPDN, RN, is chief operating officer and executive nurse, Nottingham City PCT; Michelle Bateman, MSc, BSc, RM, RHV, RGN, is assistant director (nursing and governance), Nottinghamshire Community Health.
Alonzi, A. et al (2009) Assessing staff needs for guidance on the Mental Capacity Act 2005. Nursing Times; 105: 3, 24-27.
This article outlines a research study that sought staff views on whether they needed further training and guidance on the Mental Capacity Act 2005, and if so, on which aspects they needed more guidance. As a result, a new publication, Guidance for Adult Community Services Staff on the Mental Capacity Act 2005, was produced to give practical, easy-to-use advice. The guidance is summarised here.
Implications for practice
The Guidance for Adult Community Services Staff on the Mental Capacity Act 2005 (Alonzi, 2008) is the culmination of research carried out by Nottingham Law School, which is part of Nottingham Trent University. The research was designed to support the implementation of the Mental Capacity Act (MCA) 2005 (Office of Public Sector Information, 2005) among adult community services healthcare staff.
The research was funded by the Social Care Institute for Excellence as part of a programme to support people who work with vulnerable adults who may lack or have reduced capacity. The research and the resulting guidance are supported by SCIE and the Department of Health.
Adult community services healthcare staff - mainly but not exclusively community nursing staff - were recruited from Nottingham City PCT and the then Nottinghamshire County Teaching PCT (now NHS Nottinghamshire County).
The research was the first of its kind in England and Wales to assess the impact of the MCA on community nursing practice. The study had two main components (stages 1 and 2) and one main output (stage 3).
Stage 1 - information gathering
This took the form of a review of online and printed literature in the public domain, aimed mainly at the adult community nursing sector, that guides staff on the requirements of the MCA and its code of practice (Department for Constitutional Affairs, 2007). This review included the websites of the RCN, NMC, National Patient Safety Agency and DH. By far the greatest amount of literature was found on the DH website. No publication was aimed specifically at the adult community services sector. In general, there was little on the other websites.
Stage 2 - empirical investigation
This took the form of a detailed questionnaire-based study, sent to every other member of adult community services staff at each of our two PCTs. It used open and closed questions and Likert scales.
Nottingham City PCT serves a population of over 305,000. The area is the most deprived in the East Midlands and the seventh most deprived in the country. NHS Nottinghamshire County serves a population of almost 650,000, covering some of the more affluent areas in the county. We selected these two PCTs to enhance the comparative nature of the study and, importantly, to ensure it was more representative of adult community services in Nottinghamshire as a whole.
The purpose of the questionnaire was to gauge the extent to which adult community services staff felt they were familiar with the MCA’s principal requirements and the extensive guidance in the MCA code. It also sought to establish whether practitioners had changed the way they practise to meet the requirements.
The questionnaire was also designed to elicit the extent to which staff needed further training (such as workshops and seminars) and guidance (such as printed literature). This would have two tangible benefits:
It would inform the guidance, making sure it addressed staff needs;
It would allow both PCTs to identify what further training staff needed.
The study received full NHS research ethics committee approval. We used a random sampling with a factor of two.
Questionnaires, letters of invitation and information sheets in sealed envelopes were distributed via nurse managers to every other member of adult community services staff in each PCT. At the time of the study in May 2008, the target population was 740 across both PCTs, so questionnaires went to half this number (370).
We received 51 completed questionnaires within time (37 from the city PCT and 14 from the county trust). This was a lower return than expected, representing fewer than one-seventh of questionnaires distributed. Nevertheless, there were remarkable consistencies between PCTs relating to the areas where staff wanted further training and guidance.
The results were analysed using SPSS 15 software. The data was presented using frequency tables (for both PCTs combined), graphical output and cross-tabulation tables. Cross-tabulation tables allow both PCTs to see the response of their own staff.
This has two major advantages. Each PCT can:
Target resources to the training and guidance needs of its own staff;
Compare the data collected from their own staff against that of the other, quickly and easily identifying similarities and differences between the data.
Output - training and guidance
Staff were asked to identify areas where they wanted further training and guidance. Here we will focus on the need for guidance, as this relates directly to the main output.
In summary, staff who participated in the study indicated they wanted to receive further guidance in the areas outlined in Box 1 in descending order. These areas were then used to inform the content of the guidance, to ensure it would meet the needs of all staff, of whom those who participated in the study were a representative sample.
Box 1. Guidance needs
The guidance (Alonzi, 2008) was produced in close collaboration with both PCTs. It has been published on the SCIE website and at nursingtimes.net. The document:
Provides clear, practitioner-focused instruction on aspects of the MCA and the code that staff are most likely to encounter;
Contains a series of checklists relating to some of the topics that staff had identified as a priority - help with decision-making, assessing capacity, best interests, advance decisions to refuse medical treatment, confidentiality and sharing information;
Contains three case studies that guide staff through decision-making, assessing capacity and best interests.
The checklists are designed to act as a prompt, helping staff to quickly identify the criteria they should apply and the questions they should ask when working with adults who may lack or have reduced capacity. They are designed to help overcome the challenge that busy practitioners face of having to locate key provisions in different parts of the code.
The case studies help staff to see how the MCA applies in a practical context. They are purposefully detailed to show them how to approach these issues and to develop confidence in using the code.
The guidance contains an introduction, 11 sections, frequently used terms and links to electronic resources that staff will find useful to increase their understanding of the MCA and the code. The following sections explain and summarise each section of the guidance and Box 3 features a case study from the document.
Box 3. CASE STUDY
Anna Southcott*, 76, has dementia and lives in a care home. She has asthma. Her capacity fluctuates. The district nurse attends to administer flu vaccinations. Ms Southcott is able to communicate.
This example is concerned with assessing capacity.
The decision relates to administering a flu vaccination. The district nurse should start from the position of assuming that Ms Southcott has the capacity to decide whether to receive a flu vaccination, unless there is evidence to show that she lacks the capacity to do so (first principle). Even if the nurse has to help Ms Southcott to make the decision, this does not mean she lacks the capacity to make it.
The nurse should not treat Ms Southcott as being unable to make the decision herself until all practicable steps to help and support her to make it have been taken, without success (second principle). Only if this is the case should the nurse assess Ms Southcott’s capacity to make the decision using the two-stage test.
As Ms Southcott’s capacity fluctuates, the nurse should consider whether the decision can be postponed until she may have capacity to make the decision. The nurse will speak to Ms Southcott’s carers about this, as well as asking about her condition and whether there are any contraindications for a flu vaccination - the following assumes this not to be the case.
Does Ms Southcott have an impairment of or a disturbance in mind or brain function?
There must be an impairment of her mind or some disturbance that affects the way her brain works. She has dementia, so this part of the test is fulfilled to the balance of probabilities (more likely than not).
Does the impairment or disturbance mean that she is unable to make a specific decision, at the specific time she needs to?
The nurse must disregard Ms Southcott’s ability to make decisions in general. The impairment or disturbance must affect her ability to make a specific decision at a specific time. The nurse will give her some simple information about why she needs a flu vaccine (her age and asthma), then will ask her to repeat that information.
In relation to the decision that needs to be made, the district nurse should decide on the balance of probabilities (more likely than not) whether Ms Southcott is able to:
If Ms Southcott cannot do any of these three things, she is treated as being unable to make the decision.
The decision about Ms Southcott’s capacity must not be based merely on her age, appearance, assumptions about her condition or any aspect of her behaviour.
The nurse decides that Ms Southcott lacks capacity to make a decision about receiving a flu vaccination and clearly records her assessment with reasons.
*The patient’s name has been changed
The introduction explains that staff are legally required to have regard to the code when working with adults who may lack or have reduced capacity. Staff need to be able to show, objectively, that they have had regard to the code; this means recording the steps they have taken in the patient’s records.
There is a strong theme of risk awareness throughout the guidance, which is designed to encourage staff to approach issues around capacity in a risk-averse way.
Lack of capacity is the inability to make a specific decision at the time the decision has to be made.
A person may lack capacity because of a range of causes, including dementia, significant learning disabilities, the effects of a stroke or brain injury, delirium or the effects of drug or alcohol use.
One of the most problematic areas of the MCA is that, at present, there is no threshold indicating which decisions require a formal, recorded assessment of capacity and which do not. This is because staff are encouraged to carry out a situation-specific assessment of capacity and local procedures may vary for different kinds of staff (there is a danger of being too prescriptive).
Decisions that are potentially covered by the MCA range from the minor to the serious. The guidance (section 1) offers the approaches outlined in Box 2.
Box 2. Approaches to assessment of capacity
Lack of capacity may be permanent or temporary. If it is temporary and the decision can be postponed, staff should wait until the person regains the capacity to make that decision or to consent.
The five principles of the MCA should always be the starting point. They are a set of overarching principles that guide practitioners through this area of law.
Section 2 of the guidance sets out and explains what each of the five principles mean, and links them to specific sections in the guidance. For example, a section is devoted to the second principle - this is the requirement not to treat a person as being unable to make an informed decision until staff have taken all practicable steps to help and support that person in order to make their own decision, without success.
Help with decision-making
This is the first of three steps staff should take when treating or caring for a person who may lack or have reduced capacity to make a specific decision at a specific time.
Section 3 emphasises the need to work with the person, to support them to make their own decision (in this sense, restoring power to the vulnerable person, which is one of the main themes of the MCA).
The challenge for practitioners is to identify ways of offering practicable (meaning possible and appropriate) help and support. To assist staff with this, the guidance breaks down the steps that need to be taken and provides an easy-to-use checklist to guide them through the process.
Only if all practicable steps have been taken to help and support a person who may lack capacity to make a specific decision, without success, should staff assess that person’s capacity to make that decision at that specific time.
This is the second of three steps that practitioners should take. It is also the topic identified by staff in the research study as the one on which they would most like further guidance. Section 4 of the guidance takes staff through the two-stage test for assessing capacity:
Does the person have an impairment of or a disturbance in mind or brain function?
Does the impairment mean that the person is unable to make a specific decision, at the time they need to?
Practitioners must have a clear understanding of these stages, so the guidance explains in more detail what the stages mean.
For example, it describes how an inability to make a decision means a person’s inability to understand relevant information, retain that information long enough to make the decision themselves, use or weigh up that information as part of the decision-making process or to communicate the decision by any means.
The time-specific nature of this test is important. The person’s lack of capacitymay be temporary, possibly induced by the effects of drug or alcohol use. Staff must consider whether it is possible to postpone the decision to a time when the person is likely to have capacity to make it. If it is, they must postpone it.
Practitioners are provided with an easy-to-use checklist and a detailed case study, showing how a district nurse would apply this in practice (see Box 3).
This is the third of three steps staff should take. Nurses will be familiar with a best-interests approach to decision-making. The MCA has placed best interests (the fourth principle) on a clear statutory footing. The key evidential requirement is for staff to show they have had regard to and applied the statutory criteria. Section 5 of the guidance sets out clearly which factors staff are under a duty to have regard to.
Importantly, it outlines the limitations in practitioners’ ability to make a best-interests decision for the person who lacks capacity, for example where they have already made a valid, applicable advance decision to refuse medical treatment or have appointed an attorney under a registered personal welfare lasting power of attorney (LPA).
This section is supported by a checklist and a detailed case study, showing how the statutory criteria should be applied in practice, and recorded.
Legal protection when providing acts of health care or treatment
Section 6 picks up the theme of risk management and explains what staff need to be able to show they have done to receive protection from legal liability.
In essence, practitioners need to be able to show (objectively, clearly recorded in the person’s records) that they have taken all practicable and appropriate steps to help and support the person to make their own decision (without success), have properly applied the two-stage test for assessing capacity, and must reasonably believe that the person lacks capacity and that the act proposed is in their best interests. This section therefore shows the importance of taking the three steps identified above.
In emergency situations, staff will have less time to come to a conclusion about the three steps. It will almost always be in the person’s best interests to give urgent treatment without delay (subject to separate requirements about advance decisions).
Independent mental capacity advocate (IMCA)
Much work has already been devoted to promoting the IMCA service (DH, 2007) among healthcare staff. Section 7 of the guidance outlines the following:
The circumstances when an IMCA should be appointed;
What an IMCA will do;
What rights an IMCA has (including the right to request and review parts of the person’s medical records that are relevant to the decision in question);
How to deal constructively with circumstances where an IMCA disagrees with or challenges practitioners’ decisions.
Section 8 contains a comprehensive section on advance decisions to refuse medical treatment. It defines an advance decision, differentiates it from a statement of wishes and feelings and outlines the purpose and requirements of each.
The guidance reminds practitioners that an advance decision need not be contained in a formal document and need only be expressed in the words of the person making it. Unless the advance decision is a refusal of life-sustaining treatment, it need not even be in writing.
A refusal of life-sustaining treatment must be in writing, be signed by the person making it and witnessed and must contain the words ‘even if life is at risk’.
The guidance tackles a difficult issue, namely the relationship between an advance decision and a personal welfare LPA. Understanding the relationship between the two is vital, particularly where both purport to deal with the same treatment but have been made at different times. We provide a clear approach to help practitioners.
The guidance also outlines circumstances under which an advance decision may not be valid (for example where there is evidence that the person withdrew the advance decision and had the capacity to do so). There is also a comprehensive checklist, which focuses on the kinds of questions staff may be asked when a person (with capacity) is considering making an advance decision or has recently made one.
Practitioners have to take an evidence-based approach to the MCA and the code to show compliance. It is vital that staff can demonstrate with clear, objective evidence that they have had regard to the code if their decision is reviewed or challenged.
Section 9 explains what staff should be able to show they have done in three situations - helping a person with decision-making, assessing capacity and making a best-interests decision - to demonstrate compliance. It also provides checklists that distil the requirements of the code.
Confidentiality and challenges
There is an inherent tension in the code. Staff are encouraged to consult third parties appropriately, for example, to help them assess a person’s capacity or to determine what is in their best interests. However, they must also remember the common law - statutory and professional requirements about keeping private information about the person confidential.
Section 10 of the guidance outlines the main requirements around confidentiality, in the context of the MCA. It deals with:
The NHS confidentiality code of practice;
Information which independent mental capacity advocates are entitled to request;
The obligations around sharing information when assessing a person’s capacity and determining best interests;
Dealing with a request for confidential information by an attorney appointed under a registered LPA.
Section 11 also explains how staff should deal with challenges to their assessment of a person’s capacity or best-interests decision, including the use of dispute resolution methods such as mediation.
For information about the guidance or to request a copy, please contact Andrew Alonzi
Alonzi, A. (2008) Guidance for Adult Community Services Staff on the Mental Capacity Act 2005 . Nottingham: Nottingham Trent University.
Department for Constitutional Affairs (2007) Mental Capacity Act 2005 Code of Practice . London: The Stationery Office.
Department of Health (2007) Independent Mental Capacity Advocate (IMCA) Service . London: DH.
Office of Public Sector Information (2005) Mental Capacity Act 2005 . London: OPSI.