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Best interests decision making - learning briefing

Best interests decision making - learning briefing

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Overview

This briefing covers what we learned from a SAB multi-agency audit of Mental Capacity Act (MCA) best interests decision making in 2017.

Everyone who works with adults who need care and support should read this briefing. We encourage you to discuss it with your manager and colleagues.

Background

In October 2017, the SAB published Adult A Safeguarding Adult Review (SAR). This followed the death of a 64-year-old man (Adult A), who was living in a care home in East Sussex.

It recommended that the SAB audit cases to evaluate best interests decision making for people without mental capacity. The audit should focus on cases with multi-agency involvement and clarity about leadership responsibility.

The SAB Performance Quality and Audit subgroup planned and conducted the audit. The multi-agency audit group had representatives from:

Adult Social Care and Health
Sussex Partnership NHS Foundation Trust (SPFT)
East Sussex Healthcare Trust (ESHT)
East Sussex Clinical Commissioning Groups (CCGs)
South East Coast Ambulance NHS Foundation Trust (SECAmb)
Sussex Police.

The audit looked at 5 cases of adults assessed as lacking capacity on one or more occasions, where best interests decisions were made on their behalf.

The cases audited

A woman at risk of financial abuse who lacking capacity with regard to managing finances.
A man with autism and learning disability who lacked capacity to make decisions regarding surgery.
A woman living in a nursing home, assessed as lacking capacity to manage finances.
A woman in a mental health inpatient unit who lacked capacity to make decisions about moving to supported housing.
A man experiencing cognitive decline and lacking capacity to make decisions about discharge from hospital.

In each case, the audit group checked if people followed the principles of the Mental Capacity Act in the decision making process. It also checked if people knew who was leading and followed their lead.

Learning outcomes

What is working well

In some cases, professionals demonstrated a good understanding of the decision-specific nature of assessments and the importance of providing additional support where necessary.
In one case, support was provided by a specialist learning disability nurse, which assisted the process considerably.
There were good examples where other professionals and family members were consulted when making best interests decisions.
There were good examples of inter-agency working and communication, but this was not evident in every case.

What can we improve?

Consistent application of the principles of the Mental Capacity Act when making assessments.
Clarity about the decision to be made when making assessments. This was not always clear in the cases audited.
Understanding the importance of multi-agency working and clear leadership. One case would have benefited from a multi-agency meeting at an earlier stage.
The way disagreements in relation to assessments are resolved. This will be developed as part of proposed multi-agency Mental Capacity Act procedures.
Record keeping and information sharing in relation to assessments and best interests decisions. In some cases, more detail could have been recorded about how alternative options had been considered.
Awareness of and referral to advocacy services.
In one case, there was a lack of communication with primary care by the agencies involved, regarding safeguarding concerns and capacity issues.

Mental Capacity Act assessments

The Mental Capacity Act (MCA) 2005 applies to everyone involved in the care, treatment and support of people

aged 16 and over
living in England and Wales
who are unable to make all or some decisions for themselves.

The MCA is designed to protect and restore power to those vulnerable people who lack capacity. The MCA also supports those who have capacity and choose to plan for their future – this is everyone in the general population who is over the age of 18.

All professionals have a duty to comply with the Code of Practice. It also provides support and guidance for less formal carers. The 5 statutory principles are the benchmark and must underpin all actions and decisions taken in relation to the Act.

MCA – 5 statutory principles

A person must be assumed to have capacity unless it is established that they lack capacity.
A person is not to be treated as unable to make a decision unless all practicable steps to help him or her to do so have been taken without success.
A person is not to be treated as unable to make a decision merely because he or she makes an unwise decision.
An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the persons rights and freedom of action.

Who can assess capacity?

Anyone caring for or supporting a person who may lack capacity could be involved in assessing capacity. Before deciding whether an individual has the capacity to make a particular decision you must answer two questions - the ‘two stage test’.

Stage 1

Is there an impairment of or disturbance in the functioning of a person’s mind or brain?

Stage 2

If so, is the impairment or disturbance sufficient that the person lacks the capacity to make a particular decision?

The MCA says that a person is unable to make their own decision if they cannot do one or more of the following four things:

Understand information given to them.
Retain that information long enough to be able to make the decision.
Weigh up the information available to make the decision.
Communicate their decision – this could be by talking, using sign language or even simple muscle movements such as blinking an eye or squeezing a hand.

Lack of capacity may not be a permanent condition. Assessments of capacity should be time-specific and decision-specific. You cannot decide that someone lacks capacity based upon age, appearance, condition or behaviour alone.

Mental capacity involves not only considering the person’s ability to weigh up information and understand the consequences of decisions and actions, but also the person’s ability to implement those actions.

Detailed guidance including case studies is available in the Mental Capacity Act Code of Practice | GOV.UK

Making best interests decisions

The audit demonstrated that best interests decisions are most effective when:

there is clear leadership in the decision-making process
all relevant agencies are involved
you keep clear, timely and accurate records
you seek and take into account the views of the person lacking capacity.

Any action taken, or any decision made for or on behalf of a person who lacks capacity must be made in their best interests.

The person who makes the decision is called the ‘decision maker’. Normally this will be the carer responsible for the day-to-day care. A professional such as a doctor, nurse or social worker may need to make decisions about treatment, care arrangements or accommodation.

How does the decision maker decide what is in the person’s best interests?

When making a best interests decision, you must always assess whether the person may regain capacity. If so, you can put off the decision until then.

Avoid making assumptions based on a person’s age, appearance, condition or behaviour.
Do whatever is possible to encourage the person to participate, or improve their ability to take part in making the decision.
Identify all relevant circumstances.

As far as is reasonably possible, try to find out the person’s views, including:

past and present wishes and feelings
beliefs and values (like religious, cultural, moral or political)
any other factors the person would be likely to consider.

When to hold a best interests meeting

Hold a meeting when:

the decision is complex or controversial
there is a range of options or issues that require the input of a number of different interested parties
there is a disagreement or dispute between the decision maker and the person, family members or other professionals.

Who should be involved

The person assessed as lacking mental capacity.
Any involved family members or friends.
The person responsible for implementing the decision.
Key staff who currently care for the person.
Any advocate who is involved including from the statutory IMCA service.
Any professional who can contribute to the outcome of the best interests meeting.
Anyone named by the person as someone to consult.
Any lasting power of attorney or court-appointed deputy.

The decision should be an option that is less restrictive of the person’s basic rights and freedoms – if it is still in their best interests.

When to refer to an Independent Mental Capacity Advocate (IMCA)

The role of the IMCA is to represent the person without capacity in discussions to work out whether the proposed decision is in the person’s best interests. The service is a legal right for people over age 16 who:

lack mental capacity (assessed) to make key decisions
do not have an appropriate family member or friend to represent their views

An IMCA must be involved if the decision to make is about:

serious medical treatment or
a long-term change of accommodation.

Consider involving an IMCA if the adult has no one else suitable to support them and lacks capacity in relation to:

their understanding of a safeguarding concern
their ability to consent to a safeguarding enquiry.

POhWER provide the IMCA service.

When making a referral, provide as much information as possible. Include any immediate risks to the adult concerned which POhWER should be aware of.

Make a referral | POhWER

Who needs to know?

Make clear, timely and accurate records of mental capacity assessment and best interests decisions. Share these with all of the parties involved.

You should also inform:

agencies who could not attend a best interests meeting and may need to know about the decision, like the person’s GP
any other agencies which may need to know about the decision, for example a care home or service responsible for ongoing care and support

If in doubt about who you should inform, ask your manager.

What should you record?

Take minutes of any best interests meeting and share the minutes with all attendees.

Record:

who you consulted to help work out best interests
how you reached the decision about the person's best interests
which options you considered
why you decided on the final option and rejected others

Managing disputes

If family, friends, carers or an IMCA disagree with the decision maker’s best interests decision, refer them to:

Make a complaint | East Sussex County Council

For a major disagreement which you cannot agree any other way - for example on where someone should live - you may need to go to court. With your line manager, consider making an application to the Court of Protection.

Apply for a one-off decision from the Court of Protection | GOV.UK

There are general rules and examples in the Mental Capacity Act Code of Practice

Court of Protection and Office of the Public Guardian

Court of Protection

The Court of Protection:

decides whether someone has the mental capacity to make a particular decision for themselves
appoints deputies to make ongoing decisions for people who lack mental capacity
gives people permission to make one-off decisions on behalf of someone who lacks mental capacity
handles urgent or emergency applications where a decision must be made on behalf of someone else without delay
makes decisions about a lasting power of attorney or enduring power of attorney and considers any objections to their registration
considers applications to make statutory wills or gifts
makes decisions about when someone can be deprived of their liberty under the Mental Capacity Act

Office of the Public Guardian (OPG)

The OPG protects people who lack mental capacity to make certain decisions for themselves. For example, about their health and wellbeing or finances.

The Office of the Public Guardian:

supervises people appointed by the Court of Protection to help manage someone’s affairs where they have lost mental capacity
helps people plan, so that someone they trust can make certain decisions for them if they lose capacity in the future