3.159It is now possible to set out a framework that is generally applicable to all personal welfare decisions made under the MCA 2005:
3.160This gives us a fairly clear framework for providing care and/or treatment to an incapacitated person who has a physical health problem such as a heart or liver disorder. Indeed, once one has learned this basic framework, it can be used in relation to all treatment and care decisions, from helping an incapacitated person to dress to a decision to switch off life-support:
Example 1
Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overview Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:general framework:personal welfare decisions Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:general framework
3.161P was recently involved in a car accident and has sustained severe brain injury. P’s life is being sustained artificially. There is no prospect of recovery. Medical professionals and family members agree that the situation is hopeless and must now consider whether to stop treatment.
Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overview Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:general framework:withdrawal of artificial support example Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:general framework:personal welfare decisions Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:general framework
3.162Taking each of the listed steps in turn:
a)The circumstances require P to make a decision about his care or treatment, ie to consent or refuse consent to what is proposed.
b)Someone is concerned that P lacks capacity to make this decision for himself.
c)P’s capacity to make this particular decision is assessed.
d)Because of an impairment or disturbance of P’s mind or brain, P is unable to understand, retain or weigh the information relevant to the treatment decision or is unable to communicate his decision.
e)Because P cannot make the decision for himself, someone must decide for P. The way this is done is by applying the MCA 2005 which sets out the framework to be used when making a decision for someone who lacks the capacity to make their own decision.
f)The MCA 2005 contains four mechanisms to consider in turn.
g)If P made a valid advance decision refusing life-sustaining treatment in such circumstances when he had capacity, the general rule is that it must be respected.
h)If P has a registered LPA appointing a trusted person to make decisions for P about life-sustaining treatment in such circumstances, generally that person has the right to decide.
i)If there is no advance decision or LPA which resolves the matter, is this a case where an application to the Court of Protection is necessary or in P’s best interests, for a judge to decide whether or not further treatment is hopeless? That would be unusual. Sadly, following serious road traffic accidents, it is not uncommon in intensive care settings for professionals and family members to agree that the situation is now hopeless. A judge would have to decide any application on the evidence and here all of the evidence is consistent and to the same effect. In reality, a court application would simply cause delay and avoidable distress to no benefit.
j)If the first three mechanisms are not applicable, the only one left is MCA 2005 s5.
k)Is this decision something connected with P’s care and treatment? Yes.
l)Have reasonable steps been taken to assess P’s capacity? Yes.
m)Is it reasonably believed that P lacks capacity to make this decision for himself? Yes.
n)Is it in P’s best interests to stop treatment? This is the issue. Address it by considering the best interests requirements and considerations in MCA 2005 s4 (‘The person making the determination must consider all the relevant circumstances and, in particular, must …’).
o)The restraint condition adds little here if stopping treatment is in P’s best interests. Insofar as this technically involves the use of a degree of restraint, it is reasonable to believe that this is a necessary and proportionate response.
Example 2
— — (reproduced in full in appendix A)Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overview Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:general framework:withdrawal of artificial support example Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:general framework:personal welfare decisions Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:general framework
3.163P has developed very advanced dementia and now lives in a care home. Sadly, he seems to have lost the ability to respond to his environment, to speak and to control movement. He cannot sit without support. He requires a wheelchair, is doubly incontinent and needs help with all personal care. He is being taken to a local park and, because it is raining, needs his footwear changing. A care assistant, Ms Q, puts some boots on before taking him out.
Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:overview Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:general framework:personal welfare decisions Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:general framework:advanced dementia example Mental Capacity Act 2005 (MCA) ‘acts in connection with a person’s care or treatment’:general framework
3.164If this was ever challenged then, taking each of the listed steps in turn:
a)The circumstances require P to make a decision about his care or treatment, ie to consent or refuse consent to what is proposed.
b)Based on their long acquaintance, his care assistant’s concern is that he no longer has capacity to make this decision for himself, or indeed even to understand that a change of footwear needs to be considered.
c)P’s capacity to make this particular decision is assessed. In reality, the care assistant is not aware that she is assessing P’s capacity but, if she was ever asked why she acted as she did, she might say that:
•she knows P and his needs very well;
•for some time P has been unable to make his own decisions about what to wear because his cognitive decline is now such that he cannot understand or use relevant verbal or visual information;
•medical and nursing assessments have confirmed this; and
•P did not demonstrate any awareness of or response to the suggestion or prompt that his footwear was changed.
In other words, because of an impairment or disturbance of P’s mind or brain he is unable to understand, retain or weigh the information relevant to the care decision or is unable to communicate his decision.
d)Because P cannot make this care decision for himself, someone must decide for him. The way this is done is by applying the MCA 2005 which sets out the framework to be used when making a decision for someone who lacks the capacity to make their own decision.
e)The Act contains four mechanisms to consider in turn.
f)Any advance decision which P has made will relate only to treatment, not care, and will not be relevant.
g)If there is a registered LPA appointing a trusted person to make care decisions, then P’s care must be consistent with any consents and refusals of consent made by his attorney on his behalf in relation to his care plan.
h)This is not a case where an application is going to be made to the Court of Protection for an order permitting the care assistant to change his footwear. If P already has a personal welfare deputy appointed for him by the court then, as with an LPA, his care must be consistent with any consents and refusals of consent made by his deputy in relation to his care plan.
i)If none of the first three mechanisms are applicable, apply MCA 2005 s5.
j)Is this decision something connected with P’s care and treatment? Yes.
k)Have reasonable steps been taken to assess P’s capacity? Yes. It is not necessary in the circumstances to do a fresh formal capacity assessment.
l)Is it reasonably believed that P lacks capacity to make this decision for himself? Yes.
m)Is it in P’s best interests to have this piece of care? Yes. If the care assistant was ever asked to justify the decision, she might say:
•that P’s care plan is devised to promote his best interests;
•that it includes visits to local places;
•that P seems to enjoy the outings and there is a health benefit.
In section 4 terms, it is in P’s best interests to give him this piece of care having regard to his known wishes and feelings, the views concerning his best interests of family members and professional carers and other relevant considerations, such as the care plan which addresses his health and welfare needs.
n)The restraint condition adds little here. If changing P’s footwear before going out is in his best interests then, insofar as this technically involves a degree of force, it is reasonable to believe that it is a necessary and proportionate response.
3.165The second example may seem rather artificial, although relatives and care home staff are sometimes involved in disagreements about clothing and dressing. Its main function here is to emphasise that once one has learned the above model it can be used as a framework for any situation, from routine care to intensive care. It is therefore worth considering.